Application of the One Strike law does not require the prosecution to allege that defendant is ineligible for probation. While appellant was serving a prison sentence for sex offenses, the prosecution charged him with additional lewd acts on two children, asserting application of the “multiple victim” One Strike Law (Pen. Code, § 667.61, subd. (e)(1)). Appellant claimed application of the law was precluded because the prosecution failed to plead appellant was ineligible for probation. An exception to the mandatory life term provided in the One Strike Law is for offenders who violate section 288, subdivision (a) and who are eligible for probation (Pen. Code, § 667.61, subd. (c)(7)). But this exception does not require the prosecution to plead the absence of a fact that might decrease a defendant’s sentence.
The six-year statute of limitations for the new offenses had not expired. Offenses subject to imprisonment for eight or more years must be prosecuted within six years (Pen. Code, § 800). Offenses subject to a life term do not have a limitations period (Pen. Code, § 799). “When an offense is subject to alternate sentencing schemes” the longest term possible determines the applicable limitations period (Pen. Code, § 805); enhancements are disregarded. When a section 288, subdivision (a) offense is prosecuted under the One Strike law an alternate penalty scheme of 15 years to life applies. The multiple victim circumstance is not an enhancement, so section 799 precludes a limitation period on prosecution.
Appellant’s absence from an Evidence Code section 782 hearing did not prejudice his defense. Defense counsel requested a hearing to cross-examine the minors regarding their sexual histories; he waived appellant’s presence at the hearing. Penal Code section 977 allows a defendant to personally provide a written waiver of his presence at some proceedings; counsel may not waive his presence. However, defense counsel sought to explore prior similar experiences which did not involve appellant. Appellant’s absence did not impact his defense as the matters were not within his knowledge.
The trial court’s mistaken belief it lacked jurisdiction to impose concurrent sentences requires remand for resentencing. The One Strike law does not mandate consecutive 15 year to life terms, although it does require 15 years to life for each conviction. Here, the probation report erroneously stated the terms must be consecutive and the court followed the recommendation. Defendants are entitled to the exercise of informed sentencing discretion.