P. v. Sanchez
On October 11, 2005, a first amended information was filed in the Superior Court of Fresno County charging appellant Albert Sanchez with the following offenses committed against V1: counts I and VI, forcible rape (Pen. Code,[1] 261, subd. (a)(2)); counts II and VII, attempted forcible rape ( 664/261, subd. (a)(2)); counts III and VIII, forcible sexual penetration ( 289, subd. (a)(1)); counts IV and IX, sexual penetration of a child under the age of 16 years ( 289, subd. (i)); and counts V and X, commission of a lewd or lascivious act on a child ( 288, subd. (c)(1)).
Appellant contends the court imposed two consecutive indeterminate terms based on the erroneous belief that it lacked discretion to impose concurrent terms. Respondent concedes the error, but argues the matter need not be remanded because it is not reasonably probable the court would have imposed concurrent terms. Appellant contends, and respondent concedes, the abstract of judgment must be corrected as to the determinate midterms imposed for counts V and X.
The matter is remanded for the court to exercise its discretion to impose either a consecutive or concurrent indeterminate term for count XIII, and to correct the sentence and abstract of judgment for counts V and X. In all other respects, the judgment is affirmed.
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