P. v. Lopez

Filed 3/27/07 P. v. Lopez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Barry A. Taylor, Judge. Affirmed in part and reversed in part with directions.

J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Juan Pablo Lopez appeals from a judgment of conviction entered after a jury trial. He was convicted on 10 counts and sentenced to a total term of 114 years to life. On appeal, he challenges only the sentence imposed, which we discuss in detail below. We agree in part with defendants challenges and therefore reverse the sentence and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants Convictions

Counts 1-4: Y.K.

On January 20, 2001, defendant accosted Y.K. at gunpoint in a restroom at Pierce College. He pushed her into a toilet stall and demanded money, but she had none. He raped and sodomized her, then he forced her to orally copulate him.

The jury convicted defendant on count 1 of forcible rape (Pen. Code,  261, subd. (a)(2)),[1]on count 2 of forcible sodomy ( 286, subd. (c)(2)), and on count 3 of forcible oral copulation (288a, subd. (c)(2)). It found true the allegations he personally inflicted great bodily injury on Y.K. ( 12022.8) and personally used a deadly weapon ( 12022.3) in the commission of the crimes within the meaning of section 667.61, subdivisions (a), (b) and (e); he used a handgun in the commission of the crimes ( 12022.3, subd. (a)), causing them to be serious felonies within the meaning of section 1192.7, subdivision (c)(23); and he inflicted great bodily injury on the victim ( 12022.8), causing the crimes to be serious felonies within the meaning of section 1192.7, subdivision (c)(8). The jury convicted defendant on count 4 of false imprisonment by violence ( 236).

Counts 5-9: P.K.

As P.K. was getting out of her car after driving to her home in Northridge on August 31, 2002, defendant approached her and put a knife to her throat. He forced her to drive to a remote area, where he had her walk to a secluded location. There, he forced her to orally copulate him and sodomized her twice. He then had her drive back home. During the drive, he had P.K. give him the money from her wallet.

The jury convicted defendant on count 5 of kidnapping to commit another crime ( 209, subd. (b)(1)) and found true the allegation he used a knife in the commission of the crime ( 12022.3, subd. (a)), causing it to be a serious felony ( 1192.7, subd. (c)(23)). It convicted defendant on count 9 of second degree robbery ( 211) and found true the allegation he personally used a deadly weapon in the commission of the crime ( 12022, subd. (b)(1)), causing it to be a serious felony ( 1192.7, subd. (c)(23)).

The jury convicted defendant on counts 6 and 7 of forcible sodomy ( 286, subd. (c)(2)) and on count 8 of forcible oral copulation ( 288a, subd. (c)(2)). The jury found true the allegations defendant used a knife in the commission of the crimes ( 12022.3, subd. (a)), causing them to be serious felonies ( 1192.7, subd. (c)(23)). It further found that defendant kidnapped P.K. and the movement substantially increased her risk of harm in the commission of the forcible sodomies ( 667.61, subds. (a) & (d)), and that in the commission of the forcible oral copulation, defendant personally inflicted great bodily injury on the victim ( 12022.8) and used a deadly weapon ( 12022.3) within the meaning of section 667.61, subdivisions (a) and (d).

Count 10: C.T.

On June 21, 2003, C.T. was going to her car in the parking structure at the Northridge Fashion Center. As she got out of the elevator, she saw a Jeep parked nearby. Defendant got out of the Jeep. He had his pants pulled down and was masturbating. He told C.T. to come to him, but she ran back to the elevator. Defendant followed her and grabbed her jacket with his free hand, still masturbating with the other hand. C.T. managed to break free and escape. She reported him to a store manager at the mall. Mall security was notified, and defendant was identified as a security guard at the mall. The jury convicted defendant of assault with intent to commit a felony ( 220).

Sentence

Counts 1-4: Y.K.

The trial court selected count 2 as the base term. It imposed the midterm sentence of 6 years, plus 4 years for the use of a handgun ( 12022.3, subd. (a)) and 5 years for the infliction of great bodily injury ( 12022.8), for a total of 15 years. A similar 15-year term was imposed on count 3, to run consecutive to count 2.

On count 1, the court imposed a sentence of 25 years to life pursuant to section 667.61, subdivisions (a) and (e), with a 4-year midterm enhancement under section 12022.3, subdivision (a). This sentence was to run consecutive to count 2.

The court imposed a consecutive midterm sentence of 2 years on count 4. The sentence on counts 1-4 totaled 36 years plus 25 years to life.

Counts 5-9: P.K.

The trial court stayed the sentence and enhancement on count 5 pursuant to section 654. As to count 6, it imposed a consecutive sentence of 25 years to life pursuant to section 667.61, subdivisions (a) and (e). It stayed imposition of the enhancement for use of a knife pursuant to section 654.

On counts 7 and 8, the court imposed consecutive midterm sentences of 6 years plus an additional 4 years for use of a knife ( 12022.3, subd. (a)), for a total of 10 years on each count. It stayed the enhancements under section 667.61, subdivisions (a) and (d), pursuant to section 654.

On count 9, the court imposed a consecutive midterm sentence of three years plus one year for the use of a knife ( 12022.3, subd. (a)). The sentence on counts 5-9 totaled 24 years plus 25 years to life.

Count 10: C.T.

The trial court imposed a consecutive midterm sentence of four years on count 10.

The total sentence thus imposed was a determinate term of 64 years plus two indeterminate terms of 25 years to life.

DISCUSSION

Imposition of a Weapon Use Enhancement on Count 1

Defendant contends, and the People agree, that the trial court erred in imposing a weapon use enhancement ( 12022.3, subd. (a)) on count 1. Because defendants gun use was a basis for imposing the 25 years to life sentence under section 667.61, subdivisions (a) and (e), it could not be used to impose a weapon use enhancement. (People v. Mancebo (2002) 27 Cal.4th 735, 739.) The enhancement therefore must be stricken. (Ibid.)

Imposition of Full Consecutive Sentences on Counts 4 and 9

Defendant contends the trial court erred in imposing full consecutive sentences on counts 4 (false imprisonment by violence) and 9 (second degree robbery), in that these offenses are not listed in section 667.6, subdivision (c). This section provides for full consecutive sentences in lieu of the term provided by section 1170.1 for specified offenses. The People claim that sentencing was under subdivision (d) of section 667.6, which permitted imposition of a full term on either count as the principal term under section 1170.1, with full consecutive sentences added for the sex offenses.

Under subdivision (c) of section 667.6,[2][i]n lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each of the listed sex crimes, whether or not the crimes were committed during a single transaction. If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment . . . . The term shall not be included in any determination pursuant to Section 1170.1. . . . Subdivision (d) of section 667.6 mandates imposition of a full, separate and consecutive term for the specified sex crimes if the crimes involve separate victims. Again, [t]he term shall not be included in any determination pursuant to Section 1170.1.

In People v. Belmontes (1983) 34 Cal.3d 335, the court held that in sentencing a defendant convicted of both sex offenses and nonsex offenses, the trial court has discretion under section 667.6, subdivision (c), to choose either a sex offense or a nonsex offense as the principal term for sentence calculation under section 1170.1. (Belmontes, supra, at p. 346.) The trial court may consider any remaining sex offenses under section 1170.1s principal/subordinate sentencing scheme or impose full, consecutive sentences under section 667.6, subdivision (c). (Ibid.)

In People v. Pelayo (1999) 69 Cal.App.4th 115, the court points out that subdivision (d) of section 667.6 does not permit any discretion in sentencing a person convicted of committing violent sex offenses against more than one victim . . . . Full, separate and consecutive sentences must be served for each conviction. Further, a person subject to section 667.6, subdivision (d) must be sentenced in a manner that does not dilute the impact of full, consecutive terms of imprisonment. The statute requires that the prison term imposed shall not be included in any determination pursuant to Section 1170.1. Thus, it may not be used to reduce the term of any other conviction. The computations under sections 1170.1 and section 667.6, subdivision (d) must always be done separately and the total of the section 667.6, subdivision (d) sentences added to any sentence computed independently under section 1170.1. (Pelayo, supra, at pp. 124-125.)

On resentencing, the trial court must calculate the appropriate terms for counts 4 and 9 under section 1170.1. It must separately calculate the terms to be imposed for violent sex offenses under section 667.6, subdivision (d). The sentence to be imposed under section 667.6, subdivision (d), must then be added to the sentence calculated under section 1170.1. (People v. Pelayo, supra, 69 Cal.4th at p. 125.)[3]

Failure to State Reasons for Imposing Consecutive Sentences

Defendant complains of the trial courts failure to state the aggravating factors justifying full consecutive terms for all determinate terms. Defendant does not claim to have requested a statement of reasons for sentencing decisions below. As the People point out, complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.) By failing to raise the matter below, defendant has waived it on appeal.

Section 654 Stay on Count 4

Defendant asserts that the sentence on count 4, false imprisonment by violence, must be stayed under section 654, in that it was part of an indivisible course of conduct with a single objective. (Peoplev.Harrison (1989) 48 Cal.3d 321, 335.) The People counter that section 667.6 creates an exception to the rule of section 654, applicable here, relying on People v. Hicks (1993) 6 Cal.4th 784.

Section 654 provides: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . . (Subd. (a).) The section protects against multiple punishment for multiple statutory violations produced by the same act or omission. [Citation.] However, because the statute is intended to ensure that defendant is punished commensurate with his culpability [citation], its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. [Citation.] (Peoplev.Harrison, supra, 48 Cal.3d at p. 335.)

In order to determine whether a course of conduct is indivisible, the court looks to defendants intent and objective, not the temporal proximity of his offenses. (Peoplev.Harrison, supra, 48 Cal.3d at p. 335.) Thus, if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [] If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (Ibid.)

Clearly, defendants false imprisonment of Y.K. was part of an indivisible course of conduct that included the sex offenses and was merely incidental to, or the means of accomplishing, those offenses. Thus, unless section 667.6 provides otherwise, section 654 bars punishment on count 4.

In People v. Hicks, supra, 6 Cal.4th 784, defendant entered the victims place of business, where he raped and sodomized her multiple times. He was convicted of burglary in addition to multiple forcible sex offenses. He contended that section 654 prohibited imposition of a separate term for the burglary, which was incidental to the forcible sex offenses. (Id. at p. 788.) The question before the court was whether section 654 prohibits such multiple punishment when a trial court imposes consecutive full-term sentences under the authority of section 667.6, subdivision (c). (Id. at p. 789.)

The court noted that in People v. Siko (1988) 45 Cal.3d 820, it considered whether imposition of consecutive full-term sentences under section 667.6, subdivision (c), was subject to section 654s proscription of multiple punishment. (People v. Hicks, supra, 6 Cal.4th at p. 790.) The court concluded in Siko that section 667.6, subdivision (c), did not repeal the prohibition in section 654 on multiple punishment for a single act or omission. (Ibid.) Siko did not, however, address the question whether section 667.6 modified or abrogated the judicially engrafted indivisible or single transaction rule. (Ibid., quoting from Siko, supra, at p. 822.)

Addressing that question in Hicks, the court observed that subdivision (c) of section 667.6 specifies that it applies whether or not the crimes were committed during a single transaction. The court interpreted this language to mean that section 667.6, subdivision (c), permits imposition of consecutive full-term sentences, notwithstanding the provisions of section 654, when the defendant is convicted of an offense enumerated in section 667.6(c), based upon the commission of a separate act that constituted part of an indivisible course of conduct. (People v. Hicks, supra, 6 Cal.4th at p. 792.)[4]

In the case before it, the court observed that the burglary for which defendant was separately punished was a means of facilitating the sexual assault, because defendant entered the victims place of employment intending to subject her to a sexual assault. Nevertheless, defendants act of entering that location aggravated the crime by increasing the victims vulnerability and decreasing her chance of escape. . . . It was appropriate, therefore, for defendants commission of the burglary to result in an increased sentence. (People v. Hicks, supra, 6 Cal.4th at pp. 796-797.) Accordingly, the court held that the imposition of a sentence for defendants burglary conviction in addition to the sentences for the sex offenses was authorized by section 667.6, subdivision (c), and did not violate section 654s proscription against multiple punishment. (Id. at p. 797.)

Subdivision (d) of section 667.6 does not contain subdivision (c)s provision that it applies whether or not the crimes were committed during a single transaction. The question before us is whether it nonetheless applies whether or not the crimes were committed during a single transaction, permitting imposition of a sentence for a nonsex offense committed during the course of the same transaction as the sex offenses, without violating section 654. We conclude that it does.

As noted in Hicks, subdivisions (c) and (d) of section 667.6 are not independent of one another. Rather, [s]ubdivision (c) states the general rule that such sentences may be imposed for each violation of the enumerated offenses. Subdivision (d) modifies the general rule by providing that such sentences are mandatory if the crimes involve separate victims or involve the same victim on separate occasions. (People v. Hicks, supra, 6 Cal.4th at p. 794.) Thus, certain general provisions of subdivision (c) which are omitted from subdivision (d) are nonetheless applicable to subdivision (d). These include [i]n lieu of the term provided in Section 1170.1 and whether or not the crimes were committed during a single transaction. To interpret subdivision (d) otherwise would lead to an absurd result: where full consecutive sentencing is discretionary (subd. (c)), section 654 would not preclude imposition of a longer sentence but, in more serious cases where full consecutive sentencing is mandatory (subd. (d)), section 654 would preclude imposition of a longer sentence. We cannot interpret the statute in this manner. (Verreosv.City and County of San Francisco (1976) 63 Cal.App.3d 86, 96.)

Defendant nonetheless argues that Hicks does not apply here. He attempts to distinguish the instant case from Hicks, focusing on the courts discussion of the facts in Hicks. He argues that in Hicks, the defendant actually entered a place of business from which the victim could not leave because it was the site of her employment. Here, in contrast, [defendant] was legitimately at the college where [Y.K.] attended classes because he had been working there as a lifeguard.

There is no distinction. Whether or not defendant was legitimately at the college, he was not legitimately in the womens restroom, and the victim could not leave the restroom because he falsely imprisoned her there. Additionally, as in Hicks, the [false imprisonment] for which defendant was separately punished was a means of facilitating the sexual assault. (People v. Hicks, supra, 6 Cal.4th at p. 796.) Hence, imposition of a separate sentence for the false imprisonment in addition to sentences for the sex offenses was authorized by section 667.6[, subdivisions (c) and (d)], notwithstanding section 654s general proscription against multiple punishment for offenses committed during an indivisible course of conduct. (Id. at p. 797.)

Refusal to Strike Enhancements on Determinate Terms

In his sentencing memorandum, defendant requested that the trial court exercise its discretion under section 1385 to strike enhancements and offenses, arguing that he merited consideration of leniency. The bases of his request were the nature of his convictions, his lack of prior criminal convictions, his suggestion that his criminal conduct was founded in the sexual molestation he experienced as a child in El Salvador, his family support, and his claim that he was deeply troubled and needed counseling and medical treatment. The trial court without explanation declined defendants request.

The trial court has discretion under section 1385, subdivision (c), to strike an enhancement in furtherance of justice. (People v. Meloney (2003) 30 Cal.4th 1145, 1155; People v. Rivas (2004) 119 Cal.App.4th 565, 574.) The abuse of discretion standard is a deferential one. (Peoplev.Williams (1998) 17 Cal.4th 148, 162.) The question is whether the trial courts action falls outside the bounds of reason under the applicable law and the relevant facts. (Ibid.) That is, discretion is not abused unless the trial courts decision is so arbitrary or irrational that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.)

Additionally, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] Concomitantly, [a] decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] [Citation.] (Peoplev. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

In claiming an abuse of discretion, defendant focuses on his lack of prior convictions and his own sexual victimization as a child in El Salvador. While these factors may weigh in favor of an exercise of discretion, there are other factors which weigh against such an exercise of discretion. Defendant was convicted with victimizing three women, one at gunpoint and one at knifepoint. Both Y.K. and P.K. were injured in the sexual attacks. According to the probation officers report, defendant was linked to four other incidents where he exposed himself or masturbated in front of passersby. He had three previous arrests but was not prosecuted due to lack of involvement or identification by witnesses. His criminal behavior thus had escalated from exposure to forcible sexual assault. Under these circumstances, we cannot hold that the trial court abused its discretion in declining to strike the sentence enhancements for weapon use or great bodily injury to his victims. (People v. Carmony, supra, 33 Cal.4th at p. 377.)

Cruel and Unusual Punishment

Finally, defendant contends that a sentence longer than his lifespan for crimes that did not result in death or lasting physical injury constitutes cruel and unusual punishment. He claims: A sentence like the one imposed here, that cannot possibly be completed in the defendants lifetime, makes a mockery of the law and amounts to cruel or unusual punishment. (People v. Hicks, supra, 6 Cal.4th at p. 797 (dis. opn. of Mosk, J.).)

In Hicks, the Supreme Court upheld an 83-year sentence for rape, forcible sodomy, genital penetration by a foreign object, and burglary. (People v. Hicks, supra, 6 Cal.4th at pp. 787, 797.) The court noted that its interpretation of section 667.6, subdivision (c), allowing imposition of full consecutive terms for the sex offenses and the nonsex offense, produces a just result in the present case. That statute was intended to allow enhanced punishment of certain sexual offenders who commit multiple offenses. [Citation.] Such increased penalties are appropriate, because a defendant who commits a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. [Citations.] (Id. at p. 796.)

In People v. Alvarado (2001) 87 Cal.App.4th 178, defendant claimed a 15 years to life term under section 667.61, subdivision (e), for rape committed during a burglary constituted cruel and unusual punishment. The court held that, although this sentence was similar to the sentence for second degree murder and harsher than the punishment for similar conduct in other jurisdictions, it did not constitute cruel and unusual punishment. (At pp. 199-200.) The court was unable to say that punishing rape committed during a burglary as severely as second degree murder was shocking or outrageous. (Id. at p. 200.) Additionally, while California had taken the most aggressive approach toward punishing and deterring rape during the commission of a burglary, this did not render the mandatory life sentence excessive. (Id. at pp. 200-201.) Defendants sentence was not so disproportionate to his crimes that it shocked the conscience or offended fundamental notions of human dignity; it thus was not constitutionally infirm. (Id. at p. 201.)

Similarly, in People v. Estrada (1997) 57 Cal.App.4th 1270, the court held that a sentence of 25 years to life for rape committed during a burglary under section 667.61, subdivisions (a) and (d), did not constitute cruel and unusual punishment. (At p. 1282.) The court noted that [i]t is the function of the legislative branch to define crimes and prescribe punishments and the statutes which do so must be upheld unless their unconstitutionality clearly, positively and unmistakably appears. (Ibid., quoting from In re Lynch (1972) 8 Cal.3d 410, 414-415.)

In the context of the Three Strikes law, courts routinely uphold 25 years to life sentences for relatively minor or nonviolent offenses. (See, e.g., People v. Murphy (2001) 88 Cal.App.4th 392, 393-394; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094; see also Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144, 153-159]; Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108, 122].) Even where, as here, the sentence is greater than life, one court has stated that it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal constitution. [Citation.] (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.)

The sentence imposed on defendant thus is not, on its face, cruel and unusual punishment. The only remaining question is whether defendants sentence is disproportionate to his offenses, considering the nature of the offenses as well as the nature of the individual offender. (Peoplev.Dillon (1983) 34 Cal.3d 441, 479; Peoplev.Weddle (1991) 1 Cal.App.4th 1190, 1197-1198.)

Defendant claims his personal adversities and lack of criminal history justify a more lenient sentence. While this may be true, other factors justify the sentence imposed. (People v. Alvarado, supra, 87 Cal.App.4th at pp. 199-200.) Defendant victimized multiple women; even after being caught and arrested for exposing himself and masturbating in front of people, he did not stop his crimes until he was finally prosecuted. He took advantage of his positions protecting the public to attack two of his victimslifeguard at Pierce College and security guard at Northridge Fashion Center. Additionally, after his conviction, he expressed no remorse for his crimes. Rather, his concern was for himself. In a letter to the trial court, he complained of missing evidence and asked the court to give me the chance to be deffended [sic] and to include the missing parts so I could give you a very different point of [view] that you may have of me. Under the circumstances, the sentence imposed did not constitute cruel and unusual punishment. (Ibid.)

The judgment of conviction is affirmed. The sentence is reversed, and the case is remanded for resentencing with directions to strike the weapon use enhancement ( 12022.3, subd. (a)) on count 1; to calculate the appropriate terms for counts 4 and 9 under section 1170.1 and to calculate separately the terms to be imposed for the violent sex offenses under section 667.6, subdivision (d), adding the latter to the former.[5]

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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[1] All further section references are to the Penal Code.

[2] We refer to the version of section 667.6 at the time of sentencing. The section was amended by Proposition 83, approved by the voters in November 2006.

[3] We reject defendants claim that Pelayo was incorrectly decided and, even when a defendant is sentenced under subdivision (d) of section 667.6, under Belmontes the trial court retains discretion to select one of the violent sex offenses as the principal term for purposes of sentencing under section 1170.1.

Defendant also suggests that he cannot be sentenced under subdivision (d) of section 667.6, in that the Information did not provide notice that sentencing under that subdivision would be sought. Section 667.6 does not contain a notice requirement. (People v. Belasco (1981) 125 Cal.App.3d 974, 984.) People v. Mancebo, supra, 27 Cal.4th at pages 739, 743-745, on which defendant relies, addresses section 667.61, which contains a notice requirement (subd. (f)). Sentencing under section 667.6, subdivision (d), therefore is proper.

[4] The court also found it significant that section 667.6(c), by its terms, is not expressly subject to section 654, as is section 1170.1. (People v. Hicks, supra, 6 Cal.4th at p. 792.)

[5] We note that, because the trial court did not impose the upper term sentence on any of the determinate terms, we need not address defendants arguments under Cunningham v. California (2007) 549 U.S. ___ other than to note that on remand the trial court is bound by the holding in that case.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.