P. v. Chan

Filed 5/18/06 P. v. Chan CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, judge. Affirmed with modifications.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Hoy Chan, was convicted: 10 counts of forcible lewd conduct with a child (Pen. Code,^[1] § 288, subd. (b)(1)); 10 counts of lewd conduct with a child (§ 288, subd. (a)); and one count of failing to register as a sex offender. (§ 290, subd. (g)(2).) The jury found defendant had previously been convicted of a violation of section 288, subdivision (a), a serious and violent felony, within the meaning of sections 667, subdivision (a), 667.61, subdivisions (a) and (d)(1), and 667.71, subdivision (c)(4). In People v. Chan (2005) 128 Cal.App.4th 408, 424-426, we: reversed the lesser included convictions of lewd conduct in violation of section 288, subdivision (a) as to counts 3 through 11; reversed and remanded for retrial the failure to register in violation of section 290, subdivision (g)(2) conviction; and affirmed the judgments of conviction for lewd conduct by force in violation of Penal Code section 288, subdivision (b)(1) as to counts 2 through 11. We further modified defendant's sentence as follows: the count 2 sentence of 50 years to life was imposed pursuant to sections 667, subdivision (e)(1), 667.61, subdivision (a), and 1170.12, subdivision (c)(1); we reversed the determinate terms imposed as to counts 3 through 11; and we directed the trial court to impose indeterminate terms of consecutive 25 years to life as to counts 3 through 11 and then double them as required by section 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). In addition, we directed the trial court to decide whether to exercise its section 1385, subdivision (a) discretion to potentially strike the remaining prior violent conviction as to counts 3 through 11. Finally, we ordered the abstract of judgment be amended to state that restitution fines pursuant to sections 1202.4, subdivision (b)(1), and 1202.45 had been imposed as to each count and that defendant's presentence conduct credit be modified to 62 days pursuant to section 2933.1, subdivision (c). On remand, the trial court declined to exercise its section 1385, subdivision (a) discretion to strike the prior violent felony conviction and imposed the sentences set forth above. Defendant argues that the sentences imposed as to counts 3 through 11 are improper. The Attorney General argues the sentencing issues raised by defendant are barred by the law of the case and lack merit, and the abstract of judgment must be amended to more accurately reflect the actual sentences imposed and to correct conduct credits and fines. We affirm with modifications.

II. DISCUSSION

A. Consecutive Sentences as to Counts 3 through 11

Defendant, by his own admission, â€