P. v. Rhoden

Filed 9/28/06 P. v. Rhoden CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. James T. LaPorte, Judge.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Dlyric Rhoden of indecent exposure (Pen. Code, § 314, subd. (1)),^[1] and found true allegations that appellant had suffered two prior convictions of section 288a, subdivision (c)^[2] and six “strikes,”^[3] and served a single prison term for multiple prior felony convictions (§ 667.5, subd. (b)). The court imposed a prison term of 26 years to life, consisting of 25 years to life on the substantive offense, pursuant to the three strikes law (§§ 667, subd. (e)(2)(A)(ii); 1170.12, subd. (c)(2)(A)(ii)), and one year on the prior prison term enhancement. The court ordered the term to be served consecutively with a sentence appellant was serving in another case.

On appeal, appellant contends, and the People concede, appellant’s conviction of indecent exposure was improperly punished as a felony. We agree, and will remand for resentencing.

DISCUSSION

Section 314 provides that a violation of section 314(1) is a misdemeanor, subject to the following qualification: “Upon the second and each subsequent conviction of [violating section 314(1)], or upon a first conviction under [section 314(1)] after a previous conviction under Section 288, every person so convicted is guilty of a

felony . . . .” (Emphasis added.)

Appellant has suffered no prior section 314(1) convictions. Therefore, the instant offense can only be a felony if appellant has suffered two prior convictions of violating section 288. However, although appellant has suffered two prior convictions of violating section 288a, he has not suffered any prior section 288 convictions. Thus, as the parties agree, punishing the instant offense as a felony is not authorized by the statute. (Cf. People v. Palmer (2001) 86 Cal.App.4th 440, 445 [“[i]t is not . . . [the] job [of an appellate court] to insert language in a statute which is not there”].) Accordingly, we will vacate the sentence and remand for resentencing.

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated and the matter remanded for resentencing. On remand the court may sentence appellant only for a misdemeanor violation of section 314(1). The trial court is directed to prepare an amended abstract of judgment reflecting this change and send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

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^* Before Gomes, Acting P.J., Hill, J., and Kane, J.

^[1] All statutory references are to the Penal Code. We refer to subdivisions (1) and (2) of section 314 as section 314(1) and section 314(2), respectively.

^[2] Subdivision (c)(1) of section 288a proscribes oral copulation with another person who is under 14 years of age and more than 10 years younger by the perpetrator. Subdivision (c)(2) of section 288a proscribes forcible oral copulation. Although neither the charging document nor the jury verdict forms distinguish between these two offenses, the report of the probation officer indicates appellant suffered two prior convictions of violating section 288a, subdivision (c)(1).

^[3] We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.