P. v. Johnson

Filed 7/20/07 P. v. Johnson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed in part, reversed in part, and remanded for resentencing.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Thomas DeWayne Johnson of one count of kidnapping to commit rape/oral copulation (Pen. Code,^[1] 209, subd. (b)(1)), one count of rape ( 261, subd. (a)(2)), and one count of oral copulation by force. ( 288a, subd. (c)(2).) The jury found true the enhancement allegations that the victim had been kidnapped and the movement substantially increased her risk of harm. ( 667.61, subd. (d)(2).) Defendant admitted he had two prior serious felony convictions ( 667, subd. (a)), and two prior strikes. ( 667, subds. (c) & (e).)

On appeal, defendant contends that the trial court abused its discretion when it allowed inadmissible identity evidence and refused to strike his priors. He also alleges that his 185-year sentence constitutes cruel and unusual punishment, and the imposition of two life sentences for two sex offenses committed against one victim on one occasion was error. We conclude that the trial court was correct in admitting identity evidence and denying defendants Romero^[2] motion. We also conclude that defendants sentence was not cruel and unusual. However, we find that defendant can only be sentenced to a single life term for only one of the strike sex offenses he was convicted of, hence we reverse the sentence and remand for resentencing. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On December 15, 2003, Jane Doe (victim) went to a corner market to get some soda and cigarettes. After completing her purchases, she saw defendant in a beat-up convertible; he asked her if she wanted a ride. Having received an uneventful ride from him previously, she accepted his invitation and entered his car. The vehicles passenger door could not be opened from the interior.

When defendant drove past the victims house, she remarked that he had bypassed her street. Defendant responded, Fuck you, bitch. He continued driving for 15 to 20 minutes, until they reached an abandoned home in a remote area. Ordering her out of the car, defendant led the victim into a bedroom in the house. She was placed by a window against a table, where he forced her to copulate him for a couple of minutes. Fearing she would be murdered, she complied.

Next, defendant punched the victims chin and ordered her to remove her clothing. She completely undressed, except for her boots. She was made to lie down on the floor of the bedroom, whereupon he unzipped his pants, placed a condom over his penis, and had intercourse with the victim for a couple of minutes until he ejaculated into the condom. When he finished, he again hit her on the chin, this time with enough force to cause blood to squirt out of her mouth. He admonished her to stay inside the house because he was going to send someone else in. Defendant took with him the condom, the victims rings and her clothing.

After defendant left the residence, the victim ran out of the house, naked and still bleeding from her mouth, and scaled the fence surrounding the house. She heard defendant say to her, You thought I left. She continued to run towards an expressway; when she reached the expressway, she jumped in front of several cars in an attempt to flag down a car for assistance. Several people stopped their vehicles to help: one man called the police and another wrapped her in a blanket.

After reporting the rape, the victim was unable to identify her assailant. Consequently, the key issue at trial was the rape suspects identity. The prosecution filed in limine motion requesting to admit a dusty, used condom and wrapper, found in the garage of the abandoned home where the victim was raped. Sperm, female DNA, and DNA from a third person of unknown gender were recovered from that condom. The DNA profiles of the bodily fluids revealed that the DNA of the sperm matched the defendants DNA, whereas the female DNA did not match the victims DNA type.

The defense objected to that evidence on several grounds. It argued there was no evidence showing when the condom was placed in the garage. It suggested that the condom was a movable object that could have been relocated from one place to another and so it could not be used as identity evidence to place the defendant at the residence. Defense counsel also argued the evidence was irrelevant because the female DNA did not match the victims. It complained that the jury would be unable to apply the evidence for the limited purpose of proving identity, and would instead use it as inadmissible propensity evidence. Finally, the defense argued that since no condom wrapper was found inside the bedroom, the wrapper found in the garage could not be linked to the rape that occurred in the home.

The trial court acknowledged that the evidence was highly probative as to identity, and was potentially prejudicial because the jury could assume that this wasnt the first time defendant used a condom during a rape. It overruled defendants objection, finding the probative value of the condom tying defendant to the residence outweighed the prejudice that another sexual event took place at that location.^[3] The presence of the wrapper negated the suggestion that the condom was moved and brought to the garage; it is a reasonable interpretation that both the condom and the wrapper were placed there and not inadvertently moved there from another location because no one would move a condom and bring the wrapper along as well. It found the inability to date when the condom was used was not fundamentally different than if there was a second DNA stain in the bedroom rug that could not be dated. Hence, it allowed the used condom and wrapper to be admitted, with a limiting instruction that the evidence could not be used to infer that another sexual assault had occurred.

The jury convicted the defendant of all the charged offenses and found true the enhancement allegations. At his sentencing, defendant filed a Romero motion requesting the court strike his priors. The trial judge denied the motion and proceeded to sentence him as follows: Count 1, kidnapping to commit rape/oral copulation, 25 years to life; count 2, forcible rape, 25 years to life, tripled under Three Strikes, 75 years to life; and count 3, forcible oral copulation, 25 years to life, tripled under Three Strikes, 75 years to life. Enhancements ( 667, subd. (a), prior serious felonies) were five years for each of two priors totaling 10 years. Defendants total indeterminate sentence was 175 years to life plus 10 years.

DISCUSSION

A. The Trial Court Properly Admitted a Used Condom to Prove Identity

Defendant contends the trial court erroneously admitted into evidence the dusty, used condom and wrapper found in the garage of the abandoned home where the victim was raped. He asserts the trial court abused its discretion because the evidence was more prejudicial than probative under Evidence Code section 352 and was inadmissible propensity evidence barred under Evidence Code section 1101, subdivision (b).

We review a trial courts rulings under Evidence Code sections 352 and 1101, subdivision (b), for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) A trial court abuses its discretion only if its ruling falls outside the bounds of reason. (People v. Ochoa (1998) 19 Cal.4th 353, 408.) We conclude that the trial court properly admitted the condom, the wrapper, and defendants DNA profile into evidence.

Evidence Code section 352 reads: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The governing test [under Evidence Code section 352] evaluates the risk of undue prejudice, that is, evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues, not the prejudice that naturally flows from relevant, highly probative evidence. [Citations.] (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823.)

In this instance, the trial court weighed the probative value of the condom to prove the defendants identity against the risk of prejudice that the jurors would view the condom as evidence of a prior sexual assault. There was no offer of proof that the condom was used in a previous sexual offense. The only inference that could be deduced from the condom and the wrapper was that the defendant had used a condom and had ejaculated into it. It does not follow that because defendant ejaculated into the condom, a fortiori, he committed a previous sex crime. The sole reason the People used this evidence was for the evidence to link defendant to the house. The prosecution never argued that defendant had committed a previous sex offense with that condom.

With respect to defendants claim that the condom and wrapper were inadmissible propensity evidence, we find that the evidence was properly admitted to prove defendants identity and to link him to the house.

Evidence Code section 1101, subdivision (a), provides: Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. However, subdivision (b) in pertinent part states: evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. (Italics added.) Subdivision (b) clarifies that section 1101 does not prohibit admission of evidence of prior acts when the evidence is relevant to establish some fact other than the persons character or disposition . . . . (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)

Both subdivisions (a) and (b) of Evidence Code section 1101 deal with character evidence. However, neither the defendants character, nor the defendants propensity to engage in a sex act, is at issue; the issue is identity. In this case, what is germane to determine the identity of the rape suspect is defendants DNA profile. The sperm found in the condom constituted physical evidence relevant to prove the existence of a fact: that this particular defendant had been at the house before. (Evid. Code, 140 & 210.) Evidence Code section 1101s prohibition of character evidence does not apply to physical evidence revealing defendants DNA profile. Thus, the trial court did not abuse its discretion in admitting the condom and wrapper to prove identity.

B. Defendants Life Sentence Does Not Constitute Cruel and Unusual Punishment

Defendant asserts that his 185-years-to-life sentence constitutes cruel and unusual punishment as it shocks the conscience and offends fundamental notions of human dignity, and is grossly disproportionate to his culpability. (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon); Rummel v. Estelle (1980) 445 U.S. 263, 271-272.) Defendants failure to raise this issue at his sentencing waives the matter on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)

Even if the issue had not been waived, we find the life sentence was not cruel and unusual. Defendant failed to meet his burden to establish his punishment was unconstitutional under either the state or federal Constitutions. (People v. King (1993) 16 Cal.App.4th 567, 572.)

Punishment is cruel and unusual under the Eighth Amendment if it involves the unnecessary and wanton infliction of pain or if it is grossly out of proportion to the severity of the crime. (Gregg v. Georgia (1976) 428 U.S. 153, 173; see also Ewing v. California (2003) 538 U.S. 11, 21; Lockyer v. Andrade (2003) 538 U.S. 63, 72.) Because a sentence that is constitutional under the California criteria for cruel and unusual punishment is also constitutional under the Eighth Amendment, we evaluate defendants claim under California Supreme Court authority. The federal Constitution affords no greater protection than the state Constitution. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)

Under article I, section 17 of the California Constitution, cruel and unusual punishment occurs when a sentence is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) The Lynch court identified three techniques to review disproportionality: First, they examined the nature of the offense and the offender. [Citation.] Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. [Citation.] Third, they compared the punishment to the penalty for the same offense in different jurisdictions. [Citation.] (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136; People v. Ingram (1995) 40 Cal.App.4th 1397, 1413-1414, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 559, fn. 8.)

Here, defendant relies on the first and second tests.

Under the first Lynch test, we analyze not only the offense in the abstract, but also the facts of the crime in question. (Dillon, supra, 34 Cal.3d. at p. 479.) The nature of the offense can be decided by considering the totality of the circumstances surrounding the offense, including motive, means, extent of involvement, and the consequences of the crime. (Ibid.) When reviewing the nature of the offender, we ask whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (Ibid.)

Although defendant acknowledges his offenses were neither minor nor negligible, he maintains his crimes were not especially aggravated. He did not use a weapon and only inflicted minor injuries to the victim within a single time span of less than an hour. He also argues he has no prior history of sex offenses, suffered only two prior felony assaults, the most serious of which occurred 10 years ago. He points out that while on parole, he was gainfully employed, supporting his wife and five children.

Our independent review of the record reveals defendants violent actions and recidivist tendencies belie his minimizing claims.

As for the nature of the offenses, defendant committed three major, violent felony sex offenses involving forcible rape, forcible oral copulation, and kidnapping to commit those crimes. With a friendly ruse, he offered to drive the victim home, but instead drove into a remote area in a vehicle with a passenger door that could not be opened from the interior. He kidnapped the victim, moved her to a secluded spot to commit the sexual offenses, thereby increasing harm to her over and above that necessarily present in the offenses. The victim had complied with all of his demands out of a fear that she would be murdered. The fact that defendant did not use a weapon to physically injure his victim does not warrant leniency: he forced her into compliance by twice hitting her on the chin, once with such force so as to spurt blood. Defendant sexually assaulted the victim twice, deprived her of clothing, stole her jewelry, and mentally abused her by telling her he was going to send someone else in to the house. In order to obtain assistance, she had to run down an expressway naked, bleeding, and screaming for help. Nothing about these offenses mitigates the punishment defendant should receive; the trauma of being sexually violated, not once but twice, is substantial.

As for the nature of the offender, defendant is a 39-year-old man who has not learned to curb his criminal behavior over a 14-year period. Beginning when he was 20 years old, he was convicted of misdemeanor forgery. One month later, he was convicted of possessing cocaine base for sale. Seventeen months later, he was convicted of battery with serious bodily injury, a strike, for punching a victim in the face and taking his jewelry. Less than three years later, he suffered a robbery conviction, another strike, for robbing a woman at gunpoint in the underground garage of her apartment and was sentenced to three years in state prison. Finally, he was convicted five years later for grand theft auto and sentenced to seven years in state prison. Over those 14 years, defendants probation had been revoked three times, and he was on parole at the time he committed the sexual assaults at issue. Clearly, defendants recidivist history shows his inability to conform to societal norms. He has demonstrated that conventional methods of punishment for his criminal acts do not deter him from reoffending.

After examining both defendants nature and the nature of his offenses, we find that his sentence was not grossly disproportionate to his culpability.

With respect to the second Lynch test, defendant states he cannot possibly serve his entire sentence during his lifetime. He claims his sentence is comparable to one imposed on an offender who murders and tortures a person and receives a sentence of life without possibility of parole. Because his actions do not rise to the level of murder and torture, defendant complains that he should not be punished as harshly as someone who commits first degree murder with special circumstances.

Applying the second Lynch test, we find that defendants sentence is not as excessive when compared to sentences for more serious crimes in California.

The power to define crimes and prescribe punishment is a legislative function. Courts will not interfere in this process unless a statutory scheme prescribes a penalty too severe in relation to the crimes as to violate that constitutional prohibition. (Dillon, supra, 34 Cal.3d at pp. 477-478; Lynch, supra, 8 Cal.3d at pp. 423-424.) The purpose of the One Strike law is to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction, where the nature or method of the sex offense place[d] the victim in a position of elevated vulnerability. [Citation.] (People v. Alvarado (2001) 87 Cal.App.4th 178, 186.) Punishment under the One Strike law is precisely tailored to fit crimes bearing certain clearly defined characteristics. For the 25-year minimum term to apply, the predicate offense must be a crime of sexual violence, and it must be committed under circumstances which increase the risk of injury or death to the victim, such as kidnapping. ( 667.61, subd. (d)(2).)

That the Legislature saw it necessary to enact the One Strike sentencing scheme to impose harsher punishment for sex offenders does not shock our conscience. Mere length of imprisonment is insufficient to demonstrate the punishment is so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. (Lynch, supra, 8 Cal.3d at p. 424.) Applying lengthy terms enacted under the One Strike law, supported by verdicts and findings, have been determined not to constitute cruel and unusual punishment. (People v. Alvarado, supra, 87 Cal.App.4th at pp. 199-201; People v. Estrada (1997) 57 Cal.App.4th 1270, 1277-1282; People v. Crooks (1997) 55 Cal.App.4th 797, 803-809.)

Sentencing defendant to a life term for forcible rape, forcible oral copulation, and kidnapping to commit a sex offense does not violate the constitutional proscriptions against cruel and unusual punishment. Punishing defendants sexually assaultive conduct as severely as first degree murder with special circumstances is neither shocking nor outrageous. The fact that the sentence was mandatory merely reflected the Legislatures zero tolerance toward the commitment of violent sexual offenses in a particularly egregious manner. Therefore, defendant was not subjected to an indiscriminate sentencing scheme meting out the same severe punishment for a broad variety of misconduct. (See, e.g., People v. Alvarado, supra, 87 Cal.App.4th 178 [sentence of 15 years to life for rape during commission of burglary for nonrecidivist constitutionally permissible]; People v. Estrada, supra, 57 Cal.App.4th 1270 [25 years to life for rape during burglary for nonrecidivist constitutionally permissible]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520 [129 years for 25 sex-related offenses relating to sexual abuse of stepdaughter constitutionally permissible for nonrecidivist].)

We conclude that appellant has not carried his burden of demonstrating cruel and unusual punishment under the state or the federal Constitutions.

C. The Trial Court Properly Refused to Strike Defendants Priors.

Defendant contends that the trial court abused its discretion when it denied his Romero motion. He argues that he is outside the spirit of the Three Strikes law for several reasons. His most recent offense was taking an automobile, which did not involve violence. No weapon was used in the current offenses and the victim sustained minor injuries. He has only suffered two prior serious and violent felonies.

A trial court may strike prior conviction allegations in the interests of justice, pursuant to section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at pp. 504, 508, 530.) In deciding whether to do so, a trial court must consider both the constitutional rights of the defendant and the interests of society. (Id. at p. 530.) It must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)

A trial courts ruling on a Romero motion is reviewed under an abuse of discretion standard of review. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) There is nothing in this record to indicate the court failed to consider all the appropriate factors. It properly analyzed the nature of the current felonies, the prior convictions, and defendants background, character, and prospects. (People v. Williams, supra, 17 Cal.4th at p. 161.) It considered the nature and circumstance of the current offense, noted that the sexual offenses were egregious, defendants conduct was callous and brutal, and the victim endured difficult circumstances. Nothing in the present felonies warranted the trial court exercising its discretion to strike.

Considering the defendants background, character, and prospects, the lower court correctly determined that defendant had a continuing and escalating criminal history of increasing violence. In the prior battery with serious bodily injury, it found the battery was less severe as compared to other injuries or with the prior robbery. In the prior robbery, defendant used a gun to demand the victims ATM card and pin number, then went to the bank to steal funds out of her account. Finally, defendant suffered a grand theft auto conviction. The trial court observed that defendant was eligible for the Three Strikes 25-years-to-life term for the grand theft auto conviction, but was only sentenced to seven years in state prison. In the overall review of defendants history, defendants crimes begin with a minor misdemeanor theft, escalated to drugs, physical assaults, then to assaults with weapons, and finally culminated in kidnapping and rape. Meanwhile, defendants performance on probation and parole, with numerous revocations and subsequent incarcerations, was poor. He was only free from incarceration for six months at the time the sexual assaults took place.

In light of the nature and circumstances of his present violent sexual offenses, two prior serious and violent felonies of robbery and battery inflicting serious bodily injury, his recidivist background, criminal character, and poor prospects, the defendant may be not deemed outside the schemes spirit. The trial court did not abuse its discretion in denying defendants Romero motion.

D. Only a Single One Strike Life Term May Be Imposed When More Than One Offense Is Committed Against a Single Victim on a Single Occasion

Defendant argues the 185-year indeterminate sentence he received violated the One Strike sentencing scheme. He contends that the trial court rendered an illegal sentence because it could not impose two life sentences under section 667.61, subdivision (a), for separate offenses committed against the same victim on one occasion. He states the correct sentence should have been 25 to life for one of the One Strike counts, tripled under the Three Strikes law to 75 years to life, 25 to life for the other One Strike count, and 25 to life on the count for kidnapping to commit rape, under Three Strikes, for a total of 125 years to life, plus 10 years for two five-year prior serious felony convictions. ( 667, subd. (a).)

Citing People v. Acosta (2002) 29 Cal.4th 105, 123, the People assert that the 185-years-to-life sentence is correctthat limiting the use of section 667.61, subdivision (g) for multiple life sentences does not apply because the One Strike law was correctly applied to a defendant with two or more prior strikes.

We agree with defendant that he can be sentenced to a single life term for only one of the One Strike sex offenses.

Section 667.61, Californias One Strike law, provides that a defendant must receive an indeterminate 25-years-to-life sentence if he is convicted of a violent sexual offense such as forcible rape or forced oral copulation, with one aggravating circumstance, as defendant has been. ( 667.61, subds. (a), (c) & (d).) That 25-years-to-life term may be tripled under the Three Strikes law. (People v. Acosta, supra, 29 Cal.4th at pp. 123-124.) However, section 667.61 subdivision (g) (now subd. (i)) specifies that a life term can only be imposed once for any number of offenses committed against a single victim during a single occasion.

In People v. Jones (2001) 25 Cal.4th 98, 107 (Jones), the California Supreme Court determined that the term single occasion in subdivision (g) meant the crimes had to be committed in close temporal and spatial proximity. It specifically found that the Legislatures use of the term single occasion was different from the term separate occasion, meaning an opportunity to reflect. (Id. at p. 113.) Therefore, the reasonable opportunity analysis of section 667.6 subdivision (d) does not apply to the limitation of life terms under section 667.61 subdivision (g). The combination of a harsh punishment (a life term sentence) together with the lack of legislative direction, inures to the benefit of a defendant, yielding a conclusion that multiple violent sex offenses, committed closely in time and space against one victim, can only result in one life term. (Jones, at pp. 100-101, 107.)

In the present case, the forced oral copulation offense occurred next to a bedroom window while the victim was up against a table, where defendant forced her to copulate him for a couple of minutes. He then punched her in the chin and ordered her to remove her clothing. Defendant then made her lie down on the floor of the bedroom. He unzipped his pants, placed a condom over his penis, engaged in intercourse with the victim for a couple of minutes until he ejaculated into the condom. He again hit the victim.

The forced rape and forced oral copulation offenses occurred over several minutes in one particular area of the bedroom. Because these two violent sexual offenses occurred within a limited time period and in a localized space, the Jones definition of single occasion applies. Consequently, the trial court could not sentence defendant to two 25-years-to-life terms because section 667.61 subdivision (g) limits defendants sentence to one life term for one uninterrupted sexual assault consisting of two violent acts. On remand, the trial court should impose a single One Strike term on one of the two One Strike offenses, either the forcible rape conviction or the forcible oral copulation conviction. (See People v. Fuller (2006) 135 Cal.App.4th 1336, 1343 [two rapes occurring in one bedroom and one rape occurring in the living room of an apartment over the course of an hour were found to be a single occasion]; People v. Stewart (2004) 119 Cal.App.4th 163, 174-175 [three separate sexual offenses committed against a minor over several minutes resulted in one life-term sentence].)

Because we conclude that defendant can only be sentenced to a single life term for only one of the One Strike sex offenses, we vacate the sentence and remand the matter for resentencing, at which time the trial court should apply the definition of single occasion and impose one life sentence, subject to any other sentencing law. (Jones, supra, 25 Cal.4th at pp. 107, 111; People v. Acosta, supra, 29 Cal.4th at pp. 123-124 [tripling the minimum term for the one indeterminate One Strike life sentence imposed for a single occasion]; People v. Fuller, supra, 135 Cal.App.4th at p. 1343.)

DISPOSITION

The judgment is reversed as to defendants sentence and the case is remanded for resentencing consistent with the views expressed herein. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ GAUT

J.

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^[1] All further statutory references will be to the Penal Code unless indicated.

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

^[3] Pursuant to Evidence Code section 352.