Trial court erred in ruling it was required to impose consecutive sentences for five violent felony sex offenses under the Three Strikes law. Torres was convicted of robbery and multiple sex offenses (including five counts of digital penetration (Pen. Code, § 289, subd. (a)(1)(A)) based on his assault of a woman. Prior strike offenses were found true. At sentencing the trial court found the Three Strikes law prohibited it from imposing the life sentences concurrently, so it ordered eight consecutive 25-years-to-life terms. Torres raised a number of issues on appeal, including that the trial court improperly imposed consecutive sentences for the five digital penetration counts. Held: Reversed and remanded on this point. Prior to the enactment of the Three Strikes Reform Act (Prop. 36), a trial court had discretion to impose concurrent sentences based on Penal Code section 1170.12, subdivision (a)(6)-(7) where there were multiple current convictions for serious or violent felonies that were committed on the same occasion or arose from the same set of operative facts, and consecutive sentencing was not mandated by another statute. (People v. Hendrix (1997) 16 Cal.4th 508.) After analyzing a change that Proposition 36 made to section 1170.12, subdivision (a)(7), the Court of Appeal here concluded that a trial court still has discretion under subdivision (a)(6) to impose concurrent sentences for multiple felonies as stated in Hendrix. The amendment to subdivision (a)(7) instead changed when consecutive sentences are required in a case with multiple serious and/or violent felonies and “any other conviction for which the defendant may be consecutively sentenced.” The court concluded none of Torres’ offenses triggered the additional consecutive sentencing mandate under subdivision (a)(7). On remand for resentencing, the trial court must make additional findings to determine whether consecutive sentences for the digital penetration counts are mandatory under the Three Strikes law or another statute (specifically, Pen. Code, § 667.6, subd. (d)). [Editor’s Note: The court also discussed how the change Proposition 36 made to section 1170.12, subdivision (a)(7), was not made to the identical language in the legislative version of the Three Strikes law (Pen. Code, § 667, subd. (c)(7)) and determined the later-enacted initiative version of the law controls.]
The People adequately pleaded and proved a disqualifying factor under Proposition 36 where the information expressly stated that a conviction of sexual battery would require registration under Penal Code section 290. The jury convicted Torres of sexual battery by restraint (Pen. Code, § 234.4, subd. (a)) and the trial court imposed a 25-years-to-life sentence for this count. On appeal, Torres argued that he was eligible for a reduced sentence under Proposition 36 for this offense because it is not a serious or violent felony, and the People did not plead or prove a disqualifying factor. The Court of Appeal disagreed. On November 6, 2012, the voters passed Proposition 36, which altered the Three Strikes law by reserving a life sentence for cases where the current felony is serious or violent or the prosecution has pleaded and proved a disqualifying factor. (See Pen. Code, § 1170.12.) Here, the amended information gave notice that a conviction on the sexual battery offense would require sex offender registration (Pen. Code, § 290), which is a disqualifying factor. (See Pen. Code, § 1170.12, subd. (c)(2)(C)(ii).) This was sufficient notice of an enumerated disqualifying factor to take the offense outside the ambit of Proposition 36.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A146958.PDF