Filed 11/20/17 P. v. Dean 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ANTHONY DEAN,

Defendant and Appellant.


E063929

(Super.Ct.No. FWV1300096)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Dan Detienne, Judge. Affirmed with directions.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Mark Anthony Dean, of three charges from a six-count information. In counts 3 and 4, the jury found defendant guilty of the forcible rape and forcible oral copulation of Jane Doe, as charged on January 7, 2013. (Pen. Code, §§ 261, subd. (a)(2), 288a, subd. (c)(2)(A).) The jury also found true “One Strike” law (§ 667.61) allegations that defendant committed counts 3 and 4 during the commission of a residential burglary (§ 667.61, subds. (a), (c)(1), (7), (d)(4)). In count 5, the jury convicted defendant of committing indecent exposure, as charged on December 24, 2012, and found defendant had five prior indecent exposure convictions. (§ 314, cl. 1.) Defendant was sentenced to 33 years eight months to life in prison: 25 years to life on count 3, plus eight years on count 4, plus eight months on count 5.
In counts 1 and 2, the jury deadlocked, a mistrial was declared, and the court dismissed the counts pursuant to the prosecution’s motion. In count 1, defendant was charged with violating section 220, subdivision (b), on January 7, 2013, by assaulting Doe with the intent to commit rape, sodomy, or oral copulation. In count 2, he was charged with the residential burglary of Doe’s apartment, on January 7, 2013, the same date he allegedly committed counts 3 and 4. (§§ 459, 460.) In counts 5 and 6, defendant was charged with committing indecent exposure on January 7, 2013, with five prior indecent exposure convictions. (§ 314, cl. 1.) The court found insufficient evidence to support count 6 and dismissed the count following the close of the evidence. (§ 1118.1.)
Defendant raises two claims of error on appeal, both concerning the burglary allegations in counts 3 and 4 and the true findings on those allegations. First, defendant claims the jury had no authority to consider the burglary allegations after it deadlocked on the burglary charge in count 2. Second, defendant claims the court “coerced” the true findings on the burglary allegations by inadequately responding to the jury’s question concerning the allegations during jury deliberations. We reject these claims of error.
On our own initiative, we remand the case for resentencing. As noted, a 25-year-to-life, One Strike law sentence was imposed on count 3 (§ 667.61, subd. (a)), but the record shows the court mistakenly believed it could not impose a 25-year-to-life sentence on count 4 because counts 3 and 4 were committed against the same victim on the same occasion. The court relied on former subdivision (g) of section 667.61, which was repealed in 2006, before counts 3 and 4 were committed in January 2013. Under the version of section 667.61 in effect in January 2013, the court was required to impose a 25-year-to-life term on count 4, but had the discretion to run the term concurrently or consecutively to the indeterminate term on count 3. (§ 669.) Defendant must also be resentenced on count 5, because it will no longer be subordinate to count 4. (§ 1170.1.) We affirm the judgment in all other respects.
II. FACTUAL BACKGROUND
A. The Evidence Supporting Counts 3 and 4 (January 6-7, 2013)
1. Defendant’s Initial “Creepy” Behavior Toward Doe
In 2012 to January 2013, Doe lived in a second-floor apartment in Montclair. Defendant’s sister lived in a first-floor apartment in the same complex. Doe would smoke cigarettes on her balcony, and defendant would walk by, say hello, and make small talk with Doe, except when Doe’s live-in boyfriend was around. Defendant “started to get a little creepy” around November 2012. Every time Doe went out to her balcony to smoke, or went out to her car, defendant “would always be there.”
In December 2012, Doe’s boyfriend moved out of Doe’s apartment. Defendant asked Doe where her boyfriend was, and Doe told defendant her boyfriend had moved out. After Doe’s boyfriend moved out, defendant asked Doe whether he could talk and hang out with her, and this made Doe uncomfortable. Defendant continued to make similar advances toward Doe.
Around 9:00 p.m. on January 5, 2013, defendant knocked on Doe’s door. The door had no peephole, so Doe cracked it open. Defendant said he wanted to come in to talk and hang out. Doe told defendant, “[N]o, I’m not interested.” Doe made it clear to defendant that she “would never go out or hang out or anything like that” with him, and this made defendant angry. The entire interaction bothered Doe, because defendant had never come to the second floor before, and Doe was now a single woman, living alone.
The next day, January 6, 2013, Doe texted her ex-boyfriend: “I had to tell that stalker guy [defendant] off last night,” that defendant had “been bugging [her]” since the ex-boyfriend had moved out, that she told defendant “I’m not interested” and “to stop . . . bugging me [and] talking to me everytime [sic] I go outside [be]cause it’s annoying.”
2. Defendant’s Attack on Doe
Later on January 6, 2013, at approximately 11:00 p.m., defendant again knocked on Doe’s door, and Doe opened the door by around one foot, and placed her foot behind the door as a defensive measure. Defendant said he was upset about how Doe had spoken to him the night before. He looked “completely pissed off” and “very, very mad.” Doe apologized for being so blunt the previous night. Defendant thanked her for the apology, but said he was still angry and wanted to hang out with her. Doe replied that it was late, she had to work in the morning, and defendant needed to leave.
Defendant refused to leave, pushed his way into Doe’s apartment, then slammed the door shut and locked it. Doe was at home alone. Once inside the apartment, defendant immediately began swinging at Doe, hitting her hard at least six to eight times as she raised her arms to defend herself. Doe begged defendant to stop, and he finally did. Defendant said he was sorry for hitting her but she had made him angry.
The front door was the only way out of Doe’s apartment. Defendant pulled a chair over to block the door and sat in the chair. He told Doe that they were going to drink alcohol and smoke marijuana he brought with him. When Doe responded that defendant needed to leave, defendant said: “No; we are going to sit here, and we are going to talk and drink and smoke.” He took Doe’s cell phone away from her so she could not call for help. Next, he rolled a blunt, made Doe smoke some of it, and rambled about how he wanted to hang out and talk. Doe apologized and pleaded with defendant to leave, but he refused to leave. Next, Doe asked defendant if she could smoke a cigarette on her balcony, but he would not let her. He opened the front door slightly so the smoke could go outside, but he stood blocking the doorway to prevent Doe from escaping.
When Doe finished the cigarette, defendant slammed and locked the door. Defendant then grabbed Doe’s arms and pushed her toward the bedroom. Doe tried to resist, but defendant was too strong. Once in the bedroom, defendant told Doe: “[Y]ou have two choices; you can either give it to me or I can take it.” He was obviously referring to sex, and Doe replied that she did not want to give it to him or have it taken. Defendant was being “[v]ery aggressive,” and said: “[Y]ou don’t really have a choice in the matter.” He threatened to beat Doe to death and claimed he had a gun.
Defendant took off Doe’s shorts and forced her onto the bed. She asked him to wear a condom and he agreed. After defendant put the condom on, he penetrated Doe’s vagina a couple of times before losing his erection. Defendant ordered Doe, who was crying, to orally copulate him, and he put his penis in her mouth. He regained his erection and again penetrated Doe’s vagina. It was rough and painful for Doe.
Once more, defendant could not keep his erection. After touching himself, he resumed penetrating Doe’s vagina. Eventually, defendant grew frustrated with his inability to maintain an erection and he stopped penetrating Doe without ever ejaculating. He told Doe that he should beat her and leave her there to die. Doe tried to calm him down by saying “we are good” and everything was “cool,” which seemed to work. Defendant suggested that he and Doe take a shower together “because, you know, there’s evidence.” Doe said she would take a shower in the morning. Defendant wanted to stay the night, but Doe told him she was not comfortable with that, and he should leave. Defendant warned Doe not to call the police, and she said she would not. Defendant then left Doe’s apartment.
As soon as defendant was gone, Doe called and texted her ex-boyfriend that she “just got rapped [sic]” and that “[h]e said he had a gun [and] he’d kill me if I called the cops or anyone.” The ex-boyfriend called the police. Defendant’s assault on Doe left her with an injured right eye and multiple bruises on her arms. Doe also had tearing around her vagina.
B. The Evidence Supporting Count 5 (December 24, 2012)
At approximately 6:00 p.m. on December 24, 2012, about two weeks before he attacked Doe, defendant boarded a public bus at the Montclair Trans Center. Marsha Torres was driving, and defendant was the only passenger on the bus. Defendant sat near the front of the bus, six to seven feet behind Torres. Torres looked in her rearview mirror and observed defendant fondling himself through his clothing, then pull his pants down and masturbate his fully exposed penis. Concerned for her safety, Torres asked defendant where his stop was. When defendant named the stop, Torres lied and said that she did not go there and would have to drop defendant off at a location closer to where they were. The incident was recorded on the bus security video.
III. DISCUSSION
A. The Jury Was Authorized to Find the One Strike Law Burglary Allegations True in Counts 3 and 4, Even Though the Jury Deadlocked on the Burglary Charge in Count 2
Relying exclusively on People v. Carbajal (2013) 56 Cal.4th 521 (Carbajal), defendant claims the jury had no authority to find the One Strike law burglary allegations true in counts 3 and 4 (§ 667.61, subd. (d)(4)), given that the jury had deadlocked on the burglary charge in count 2 (§§ 459, 460, subd. (a)). Defendant argues the deadlock on the burglary charge removed an essential predicate—defendant’s commission of a residential burglary—necessary for the jury to find the burglary allegations true. As we explain, Carbajal is inapposite and not controlling.
The One Strike law (§ 667.61) is an alternative sentencing scheme that applies to felony sex offenses listed in section 667.61, subdivision (c) (qualifying sex offenses), if the offense was committed under circumstances described in subdivision (d) or (e) of section 667.61. (People v. Anderson (2009) 47 Cal.4th 92, 102.) Defendant’s convictions in counts 3 and 4 for forcible rape (§ 261, subd. (a)(2)) and forcible oral copulation (§ 288a, subd. (c)(2)(A)) are qualifying sex offenses. (§ 667.61, subd. (c)(1) [forcible rape], (c)(7) [forcible oral copulation].)
Subject to exceptions not applicable here, section 667.61, subdivision (a) requires the court to impose a 25-year-to-life sentence for a qualifying sex offense, if the offense was committed under one or more of the circumstances described in section 667.61, subdivision (d), or two or more of the circumstances listed in section 667.61, subdivision (e). In finding the burglary allegations true, the jury found defendant committed counts 3 and 4 during the commission of a first degree, residential burglary, perpetrated with the intent to commit forcible rape or forcible oral copulation—a circumstance listed in section 667.61, subdivision (d)(4).
In Carbajal, a jury found the defendant guilty in three counts of committing sex offenses against his wife’s daughter, J.C., but the same jury deadlocked on additional charges that the defendant committed sex offenses against a second victim, his own daughter, Z.C. (Carbajal, supra, 56 Cal.4th at p. 526.) In the counts involving J.C., the same jury found true a One Strike allegation that the defendant committed the crimes against more than one victim (ibid.; § 667.61, subds. (b), (e)(4)), even though the jury did not return verdicts finding the defendant guilty of committing a qualifying sex offense against more than one victim in the present case, a necessary predicate for finding the multiple-victim allegation true (§ 667.61, subd. (e)(4)).
After receiving the verdicts regarding J.C. and the true finding on the multiple-victim allegation, the trial court in Carbajal asked the jury whether it intended to find the multiple-victim allegation true, given that the allegation “call[ed] for the offenses to be committed against more than one victim.” (Carbajal, supra, 56 Cal.4th at p. 526.) The jury foreman answered, “No, sir. I thought it was one or more counts,” and the court responded, “No, it has to be against one or more victims.” (Id. at p. 527.) Following this discussion, the court sent the jury back to the deliberation room, and the jury returned to the courtroom only five minutes later. (Ibid.) Before the jury could tell the court whether it had changed its true finding on the multiple-victim allegation, the court discussed the matter with counsel at sidebar, then told the jury: “[I]t is my belief that you should not be making a finding on that allegation unless two different victims were named.” (Ibid.) The jury then went back to the deliberation room a second time, and ultimately made no finding on the multiple-victim allegation. (Id. at pp. 527-529.) In a second trial, a second jury convicted the defendant of the counts involving Z.C. and found true the multiple-victim allegation. (Id. at p. 529.)
The Carbajal court concluded the first jury lacked authority to consider the multiple-victim allegation because it did not return verdicts finding that the defendant committed a qualifying sex offense against more than one victim. (Carbajal, supra, 56 Cal.4th at p. 533; § 667.61, subd. (e)(4).) For this reason, double jeopardy did not bar the retrial of the multiple-victim allegation. (Carbajal, supra, at p. 533.) The Carbajal court explained: “Once the [first] jury deadlocked on the counts involving Z.C., the [first] jury could not have returned a valid verdict on the penalty [multiple-victim] allegation, and double jeopardy thus did not bar retrial on that allegation.” (Ibid.) The court also stated: “In sum, a jury cannot return a valid verdict on a multiple victim allegation where the jury has not rendered the underlying verdicts that comprise the essential predicate for its consideration of the allegation. In other words, a jury cannot consider a penalty allegation that turns solely on its assessment of an underlying verdict that it has not reached.” (Id. at p. 536, italics & underlining added.)
Relying on these statements from Carbajal, defendant argues the jury had no authority to consider the burglary allegations, in counts 3 and 4 (§ 667.61, subd. (d)(4)), or find those allegations true, after it deadlocked on the burglary charge in count 2. Defendant’s argument reads Carbajal too broadly. Carbajal involved a multiple-victim allegation (§ 667.61, subd. (e)(4)), not a burglary allegation (§ 667.61, subd. (d)(4)). A multiple-victim allegation is true if “the defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(4).) Thus, in the words of the Carbajal court, a multiple-victim allegation “turns solely on” “underlying verdict[s]” finding the defendant guilty of committing qualifying sex offenses against more than one victim. (Carbajal, supra, 56 Cal.4th at p. 536; § 667.61, subd. (e)(4).)
Unlike a true finding on a multiple-victim allegation, a true finding on a burglary allegation does not “turn solely on” any “underlying verdict” or verdicts, including a guilty verdict on a burglary charge. A burglary allegation is true if the defendant “committed the present [qualifying sex offense] during the commission of a burglary of the first degree [i.e., a residential burglary] . . . with intent to commit [a qualifying sex offense] . . . .” (§ 667.61, subd. (d)(4).) Thus, a jury can convict a defendant of committing a qualifying sex offense “during the commission of” a residential burglary, without also convicting the defendant of committing the same residential burglary as a substantive charge. Nothing in section 667.61 indicates that a defendant must be charged with and convicted of a residential burglary in order for, or as an essential predicate for, finding true a burglary allegation based on the same residential burglary. In sum, Carbajal does not support the proposition, advanced by defendant, that a burglary conviction is a necessary predicate for finding a One Strike law burglary allegation true. For these reasons, defendant’s reliance on Carbajal is misplaced.
Defendant correctly points out that the jury’s failure to reach a verdict on the burglary charge in count 2 is inconsistent with the jury’s true findings on the burglary allegations in counts 3 and 4. In finding the burglary allegations true, the jury necessarily found that defendant committed the forcible rape and forcible oral copulation of Doe during a residential burglary, perpetrated with the intent to commit forcible rape or forcible oral copulation. (§ 667.61, subd. (d)(4).) These true findings indicate that the jury believed defendant was guilty of residential burglary, but, inconsistently, the jury failed to reach a verdict on the burglary charge. As the People point out, however, the jury’s failure to reach a verdict on the burglary charge is an insufficient basis for setting aside the true findings on the burglary allegations, given that substantial evidence supports the true findings on the burglary allegations. (People v. Avila (2006) 38 Cal.4th 491, 600 (Avila); People v. Miranda (2011) 192 Cal.App.4th 398, 405.)
It has long been the general rule that inconsistent verdicts or findings are allowed to stand, as long as substantial evidence supports the verdicts or findings that “work[] against” or that are disfavorable to the defendant. (Avila, supra, 38 Cal.4th at p. 600, citing United States v. Powell (1984) 469 U.S. 57, 64-69; People v. Lewis (2001) 25 Cal.4th 610, 656.) “The rule applies equally to . . . an enhancement finding that is inconsistent with the verdict on a substantive offense . . . .” (People v. Miranda, supra, 192 Cal.App.4th at p. 405; People v. York (1992) 11 Cal.App.4th 1506, 1510; § 954.)
Avila explained the rule as follows: “For example, ‘if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both.’ [Citation.] Although ‘“error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred’ in such situations, ‘it is unclear whose ox has been gored.’ [Citation.] It is possible that the jury arrived at an inconsistent conclusion through ‘mistake, compromise, or lenity.’ [Citation.] Thus, if a defendant is given the benefit of an acquittal on the count on which he was acquitted, ‘it is neither irrational nor illogical’ to require him to accept the burden of conviction on the count on which the jury convicted. [Citation.]” (Avila, supra, 38 Cal.4th at p. 600.) Substantial evidence review, at the trial and appellate levels, is sufficient to protect the defendant against any jury “irrationality or error,” and no further safeguards are necessary. (Id. at p. 601.)
Here, substantial evidence supports the true findings on the burglary allegations. (People v. Johnson (1980) 26 Cal.3d 557, 576 [substantial evidence is reasonable, credible, and solid evidence].) The evidence at trial shows that defendant forced his way into Doe’s apartment, then dragged Doe into her bedroom, with the intent to commit forcible rape, forcible oral copulation, or both, then forcibly raped and forcibly orally copulated Doe in her bedroom while the burglary was still in progress. Additional evidence shows that, on the night before defendant committed the burglary and qualifying sex offenses against Doe, defendant came to Doe’s apartment, made sexual overtures to Doe, and became angry when Doe rejected him. This evidence is sufficient to support the jury’s findings that defendant committed counts 3 and 4 during a residential burglary with the intent to commit a qualifying sex offense, namely, forcible rape or forcible oral copulation. (§ 667.61, subd. (d)(4); People v. Lewis, supra, 25 Cal.4th at p. 656.) Thus, the jury’s failure to reach a verdict on the burglary charge, though inconsistent with the jury’s true findings on the burglary allegations, does not require reversal of the true findings. (Avila, supra, 38 Cal.4th at p. 600.)
B. The Court Correctly and Adequately Answered the Jury’s Question Concerning the Burglary Allegations by Rereading CALCRIM No. 3515 (Jury Must Consider Each Charge Separately from the Other Charges)
Defendant claims the trial court coerced the true findings on the burglary allegations in responding to a jury question concerning the allegations. (§ 1138.) He argues that the court’s response, which was to reread CALCRIM No. 3515, “implied there could not be a deadlock” on the burglary allegations even though the jury had already deadlocked on the burglary charge. We find no abuse of discretion in the court’s decision to direct the jury to CALCRIM No. 3515, and find no further response to the jury’s question was necessary.
1. Relevant Background
During jury deliberations, the jury reported it was deadlocked on counts 1 and 2, and the court declared a mistrial on those counts. The jury then returned verdict forms on counts 3, 4, and 5, but in reviewing the verdict forms the court discovered that the jury had not made any findings on the burglary allegations in counts 3 and 4. The court returned all of the verdict forms to the jury, and sent the jury back to the jury room to consider the burglary allegations.
The next day, the jury sent the court a note, asking: “The jury is unanimous on a verdict on Count 3 and Count 4. We now need to know how a true or not true allegation affects the verdict.” (Italics added.) In discussing the note with counsel outside the presence of the jury, the court said: “Given that they were hung on Counts 1 and 2, I am guessing they are probably hung on the allegation, although they are not really saying that.” The court had the jurors brought back into the courtroom and asked the foreperson what the jury meant by its question. The foreperson said the jury was confused about the wording on the verdict forms for the burglary allegations. The foreperson explained: “Because we were not unanimous on Count 2 and in Count[s] 3 and 4, it also mentions the burglary charge, then [we were] unsure if it was going to be a contradiction to answer true on the allegation of burglary for Count[s] 3 and 4.” (Italics added.)
The court responded to the jury’s note and the foreperson’s question by rereading CALCRIM No. 3515 to the jury: “So what I am going to do is I am going to read you another jury instruction. You already have it. I am going to amplify it a little bit. It’s 3515, multiple counts, separate offenses. [¶] It says: Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one . . . . So each one is separate. . . . [¶] . . . So with that, referring you back to 3515 . . . you have it back there, I will send you back to deliberate.” The court also told the jury it could send the court another written question, if it had any other questions. The jury submitted no further questions. Around 10 minutes after the jury was sent back to the jury room, it returned its guilty verdicts on counts 3, 4, and 5, and its true findings on the burglary allegations in counts 3 and 4.
2. Applicable Law and Analysis
“When a jury asks a question after retiring for deliberation, ‘[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.’ [Citation.]” (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
“‘We review for an abuse of discretion any error under section 1138. [Citation.]’ [Citation.]” (People v. Hodges (2013) 213 Cal.App.4th 531, 539; People v. Waidla (2000) 22 Cal.4th 690, 745-746.) “[T]he court has an obligation to rectify any confusion expressed by the jury regarding instructions, but has discretion to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (People v. Smithey (1999) 20 Cal.4th 936, 1009.)
We find no abuse of discretion in the court’s decision to direct the jury to CALCRIM No. 3515, and to reread the instruction, in response to the jury’s note asking how a true or not true finding on the burglary allegations would “affect[] the verdict,” and in response to the foreperson’s subsequent question, clarifying that by its note the jury was asking whether true findings on the burglary allegations would “contradict” its inability to reach a verdict in count 2. CALCRIM No. 3515 sufficiently answered the jury’s note and clarifying question, by telling the jury it was to consider each charge separately from the others. The court’s response was proper, and no further response by the court was necessary.
Defendant incorrectly asserts that the court’s “refusal to provide a direct answer to the jury’s question implied there could not be a deadlock on the One Strike allegation[s], and coerced the jury to return . . . true finding[s]” on those allegations. Nothing in CALCRIM No. 3515, or in the instructions as a whole, implied that the jury could not deadlock on the burglary allegations and had to find the allegations true. Further, when the court was asking the jury what it meant by its note, the court asked the jury: “Are you considering the allegations, or is the jury hung on the allegations?” The foreperson responded by saying: “The allegations are being considered.” The court’s question made it clear that the jury could deadlock on the allegations.
Defendant also points out that, “where it appears that the initial instructions given were insufficient, merely re-reading or referring the jury back to a given pattern instruction can be reversible error.” (See, e.g., People v. Nero (2010) 181 Cal.App.4th 504, 514-518 [only rereading former CALJIC No. 3.00 in response to jury’s question whether an aider and abettor may be guilty of a lesser offense than the perpetrator was error, given that the instruction did not answer the question; instead, the court should have answered “yes” to the question].) But here, CALCRIM No. 3515 was sufficient to answer the jury’s note and question. Thus, the court did not abuse its discretion in directing the jury’s attention to CALCRIM No. 3515 as containing the answer to the jury’s question.
C. The Matter Must Be Remanded for Resentencing
As noted, the trial court sentenced defendant to 25 years to life for his forcible rape conviction in count 3, based on the true finding on the burglary allegation in count 3. (§ 667.61, subds. (a), (c)(1), (d)(4).) The court did not impose a concurrent or consecutive 25-year-to-life term on the forcible oral copulation conviction in count 4, even though a burglary allegation was also found true in count 4. Instead, the court sentenced defendant to eight years on count 4, plus eight months on count 5, for an aggregate sentence of 33 years eight months to life.
The record shows why the court did not impose a 25-year-to-life term on count 4, notwithstanding the true finding on the burglary allegation in count 4. (§ 667.61, subd. (d)(4).) At sentencing, the court and prosecutor agreed that counts 3 and 4 involved the same victim and occurred on the same occasion, and also agreed that only a single indeterminate, One Strike law sentence could be imposed for multiple sex crimes committed on a single occasion against a single victim. The court and prosecutor relied on former section 667.61, subdivision (g) and People v. Fuller (2006) 135 Cal.App.4th 1336, 1342-1343, which held that former section 667.61, subdivision (g) allowed only a single One Strike sentence to be imposed against a defendant convicted of multiple sex crimes against a single victim on a single occasion.
The court’s reliance on former section 667.61, subdivision (g) was misplaced, and the matter must be remanded for resentencing so the court may exercise its discretion to impose a concurrent or a consecutive 25-year-to-life term on count 4. Even though the parties do not raise this claim of sentencing error on appeal, “[w]e may set aside an unauthorized sentence so a proper sentence may be imposed, even if the new sentence is harsher.” (People v. Delgado (2010) 181 Cal.App.4th 839, 854-855, People v. Rodriguez (2012) 207 Cal.App.4th 204, 212.)
In September 2006, before defendant committed counts 3 and 4 in January 2013, the Legislature amended section 667.61 to eliminate former subdivision (g). (People v. Rodriguez, supra, 207 Cal.App.4th at p. 213.) By eliminating former subdivision (g), the Legislature intended to “abrogate” its former restriction, which allowed the court to impose only a single indeterminate sentence for multiple offenses against a single victim on a single occasion. (People v. Rodriguez, supra, at pp. 213-214.)
Under the version of section 667.61 in effect in January 2013, the court was required to impose a 25-year-to-life term on each count subject to the One Strike law, that is, on counts 3 and 4. (People v. Rodriguez, supra, 207 Cal.App.4th at p. 213; § 667.61, subd. (a) [an indeterminate 25-year-to-life term “shall be” imposed].) But because counts 3 and 4 occurred on a single occasion against a single victim, the court had discretion to impose the 25-year-to-life term on count 4 either concurrently or consecutively to the 25-year-to-life term on count 3. (People v. Valdez (2011) 193 Cal.App.4th 1515, 1524; § 669.)
IV. DISPOSITION
The matter is remanded to the trial court for resentencing, with directions to (1) strike the determinate eight-year term imposed on count 4; (2) impose a 25-year-to-life term on count 4 (§ 667.61, subd. (a)); (3) consider whether the 25-year-to-life term on count 4 should be imposed concurrently or consecutively to the 25-year-to-life term on count 3 (§ 669); and (4) resentence defendant on count 5, because it will no longer be subordinate to count 4 (§ 1170.1). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

SLOUGH
J.