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Name: People v. Snow
Case #: D035655
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/15/2002
Subsequent History: Rev. granted 5/1/02. Depublished. Transferred 11/26/02 to 4th Dis. with directiosn to vacate its decision and reconsider...

Defendant was convicted of one count of a lewd act on a child under 14 (Pen. Code, sec. 288, subd.(a)). He had one prior conviction for oral copulation on a child under 14 by a person 10 years older (Pen. Code, sec. 288a, subd.(c)(1)), and one prior conviction for a lewd act on a child under 14 (Pen. Code, sec. 288, subd.(a)). The appellate court held that the three strikes law and the one strike law (Pen. Code, sec.667.61) may be applied cumulatively. However, that cumulative application is limited by Penal Code section 667.71, subdivision (f) of the one strike law. Because defendant’s prior conviction for section 288, subdivision (a) was the only one available to trigger the one strike law, it could not also be used as a prior three strike conviction. Thus his cumulative sentence was 25 years to life under one strike, which was in turn doubled under three strikes to 50 years to life, plus two serious prior felony enhancements of five years each under Penal Code section 667, subdivision (a)(1), for a total of 60 years to life. Following People v. Murphy (2001) 25 Cal.4th 136, defendant could be sentenced cumulatively under the habitual sex offender law (Pen. Code, sec. 667.61) and the three strikes law. Thus the trial court could have sentence him to 25 to life under the habitual offenser scheme, which in turn would be tripled under the three strikes law (plus 10 for the two serious prior convictions) for a total of 85 years to life. But, the court concluded that the defendant could not be sentenced under both the one strike and the habitual sex offender law. They are alternative sentencing schemes, not cumulative ones, even after the deletion of “in lieu of” language of the statute.