Filed 1/28/14 P. v. Gonzalez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN ANTONIO GONZALEZ,

Defendant and Appellant.

 B246265

 (Los Angeles County

 Super. Ct. No. VA122068)

APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas 

I. McKnew, Judge. Affirmed in part and reversed in part; remanded with directions.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne, 

Supervising Deputy Attorney General, and William N. Frank, Deputy Attorney General, 

for Plaintiff and Respondent.

_________________________________
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Defendant Benjamin Antonio Gonzalez appeals from the judgment entered 

following a jury trial in which he was convicted of numerous counts of sodomy, oral 

copulation, and lewd acts against children under the age of 14.

Defendant’s initial argument is that the trial court erred in imposing a consecutive 

25 years to life sentence on count 2 based on a multiple victim allegation made pursuant 

to Penal Code section 667.61, subdivisions (a) and (e)(4).1 Defendant is correct that the 

trial court erred, but the trial court’s error was that Penal Code section 667.61 is 

inapplicable to the offense charged in count 2, as the Attorney General acknowledges. 

Moreover, as the Attorney General also acknowledges, the trial court erred in applying 

section 667.61 to several other counts to which it was inapplicable.

We conclude the trial court improperly sentenced defendant pursuant to section 

667.61 with respect to defendant’s conviction for offenses that are outside the scope of 

section 667.61. For the same reason, we conclude the jury improperly found true section 

667.61 allegations with respect to those offenses and strike those findings.

The Attorney General argues that the trial court erred by failing to impose a 

mandatory parole revocation fine and incorrectly imposed a term of 15 years to life, rather 

than 25 years to life as required under the 2010 amendment of section 667.61 for one of 

the defendant’s convictions of violating section 288, subdivision (a). We agree. We 

reverse in part as to the foregoing and affirm in all other respects. Accordingly, we 

remand for resentencing.2

 

1 Undesignated statutory references are to the Penal Code. Defendant initially 

raised, then withdrew a claim that the evidence was insufficient to support one count.

2 Defendant also initially raised an issue regarding the sufficiency of the evidence 

supporting count 7, but later withdrew this issue after reviewing matters noted by the 

Attorney General.
3

BACKGROUND

Except for the date of commission of count 9, none of the issues on appeal turns

upon the facts underlying the offenses or the presentation of evidence at trial. 

Accordingly, we merely provide a cursory summary of the case.

Over the course of 11 years, defendant repeatedly engaged in sodomy, oral 

copulation, and lewd acts with boys under the age of 14. Defendant also attempted a 

lewd act with a girl under the age of 14 and showed a video recording of himself touching 

a teenage boy’s penis to yet another boy. One of the victims was related to defendant and 

the rest were children of defendant’s friends.

The jury convicted defendant of six counts of sodomy with a child under the age of 

10 in violation of section 288.7, subdivision (a), three counts of sodomy of a child under 

the age of 14 in violation of section 286, subdivision (c)(1), three counts of oral 

copulation of a child under the age of 14 in violation of section 288a, subdivision (c)(1), 

eight counts of committing a lewd act upon a child under the age of 14 in violation of 

section 288, subdivision (a), one count of attempted commission of a lewd act upon a 

child under the age of 14 in violation of section 288, subdivision (a), and one count of 

sending harmful matter to a minor in violation of section 288.2, subdivision (a). The jury 

acquitted defendant of one count of committing a lewd act upon a child under the age of 

14 (count 23). With respect to counts 1 through 9, 11 through 19, 21, and 26, the jury 

found a section 667.61, subdivision (b) multiple victims allegation true. 

On the prosecutor’s motion, the trial court dismissed counts 19 and 26 at the 

sentencing hearing because the verdict forms for these counts named the wrong victim. 

The court had previously dismissed counts 20 and 22 before trial and count 27 during 

trial. There was no count 10.

The trial court sentenced defendant to an aggregate term of 100 years 8 months to 

life, consisting of the following terms for each offense:

Count 1–section 288.7, subdivision (a) (sodomy with a child under the age of 10) 

(victim No. 1), 25 years to life (based upon § 667.61, subd. (b) multiple victims finding);
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Count 2–section 288.7, subdivision (a) (victim No. 1), 25 years to life, run 

consecutively (based upon § 667.61, subd. (b) multiple victims finding);

Count 3–section 286, subdivision (c)(1) (sodomy of a child under the age of 14) 

(victim No. 1), 15 years to life, run concurrently (based upon § 667.61, subd. (b) multiple 

victims finding);

Count 4–section 288a, subdivision (c)(1) (oral copulation of a child under the age 

of 14) (victim No. 1), 15 years to life, run concurrently (based upon § 667.61, subd. (b) 

multiple victims finding);

Count 5–section 286, subdivision (c)(1) (victim No. 1), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 6–section 286, subdivision (c)(1) (victim No. 1), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 7–section 288a, subdivision (c)(1) (victim No. 2), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 8–section 288a, subdivision (c)(1) (victim No. 2), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 9– section 288, subdivision (a) (committing a lewd act upon a child under 

the age of 14) (victim No. 2), 15 years to life, run concurrently (based upon § 667.61, 

subd. (b) multiple victims finding);

Count 11–section 288, subdivision (a) (victim No. 3), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 12–section 288, subdivision (a) (victim No. 3), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 13– section 288, subdivision (a) (victim No. 3), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 14–section 288, subdivision (a) (victim No. 4), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);
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Count 15–section 288, subdivision (a) (victim No. 4), 15 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 16–section 288.7, subdivision (a) (victim No. 4), 25 years to life, run 

consecutively (based upon § 667.61, subd. (b) multiple victims finding);

Count 17–section 288.7, subdivision (a) (victim No. 4), 25 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 18–section 288.7, subdivision (a) (victim No. 4), 25 years to life, run 

concurrently (based upon § 667.61, subd. (b) multiple victims finding);

Count 21–section 288.7, subdivision (a) (victim No. 5), 25 years to life, run 

consecutively (based upon § 667.61, subd. (b) multiple victims finding);

Count 24–attempted violation of section 288, subdivision (a) (victim No. 6), 15 

years to life, run concurrently;3

Count 25–section 288.2, subdivision (a) (sending harmful matter to a minor), 8 

months, run consecutively.

DISCUSSION

1. Inapplicability of section 667.61 to counts 1 through 8, 16 through 18, 21, 

and 24

With respect to every count other than count 25, the trial court expressly sentenced 

defendant under the provisions of section 667.61, also known as the One Strike law. The 

prosecutor had alleged in the amended information that section 667.61 was applicable to 

each of these charges except count 24, and defense counsel expressly agreed. In 

explaining its sentencing choices the court stated, “Court recognizes that Penal Code 

section 667.61 is applicable. Court has discretion, and these young people were coerced 

in committing—through cooperation with the defendant—some of the acts, but they are 

still children, and he took advantage of their youth.”

 

3 The trial court erroneously sentenced defendant on count 24 pursuant to section 

667.61, subdivision (b), as addressed later in this opinion.
6

Defendant initially contended that the trial court erred by imposing consecutive 

sentences of 25 years to life for counts 1 and 2 (convictions of violating section 288.7, 

subdivision (a) that involved the same victim) pursuant to the jury’s multiple victim 

finding and section 667.61, subdivision (a). The Attorney General notes that section 

667.61 is inapplicable to a violation of section 288.7, subdivision (a), but argues that the 

court properly sentenced defendant to consecutive terms of 25 years to life for counts 1 

and 2 because section 288.7, subdivision (a) mandates a sentence of 25 years to life and 

the trial court stated reasons for running the terms on certain counts consecutively. In his 

reply brief defendant contends the trial court articulated insufficient reasons for making 

the terms consecutive in that it cited the youth of the victims, which is inherent in a 

violation of section 288.7, subdivision (a) (sodomy of a child under the age of 10), and 

coercion, although there was no coercion shown beyond the offense itself.

The Attorney General further argues that resentencing is required for counts 3 

through 8 and 24 because section 667.61 is inapplicable to the offenses of which 

defendant was convicted in those counts.

a. Section 667.61

Section 667.61 provides for a sentence of either 15 years to life or 25 years to life 

for the commission of certain enumerated sex offenses under specified circumstances, 

including committing an enumerated offense against multiple victims. (§ 667.61, subds. 

(a), (b), (c), (e)(4).)

b. Convictions of violating section 288.7 (counts 1, 2, 16, 17, 18, 21)

Defendant was convicted in counts 1, 2, 16, 17, 18, and 21 of violating section 

288.7, subdivision (a), which is not among the enumerated offenses within the scope of 

section 667.61. (§ 667.61, subd. (c). Thus, both the jury’s findings and the trial court’s 

sentences pursuant to section 667.61 in these counts were contrary to law. Although 

defendant challenges only the sentence on count 2, we may correct an unauthorized 

sentence whenever it comes to our attention. (People v. Autry (1995) 37 Cal.App.4th 

351, 364.)
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As the Attorney General argues, the mandatory sentence for a violation of section 

288.7, subdivision (a) is 25 years to life, the same sentence improperly imposed under 

section 667.61. The Attorney General thus aptly argues that there is no reason to require 

the trial court to resentence defendant on counts 1 and 2.

Accordingly, we vacate the jury’s section 667.61 findings with respect to counts 1, 

2, 16, 17, 18, and 21, but need not reverse the sentence as to these counts.

c. Imposition of consecutive terms for counts 1 and 2

Defendant argues in his reply that the trial court did not state adequate reasons for 

sentencing him to consecutive terms of 25 years on counts 1 and 2.

Although a trial court is required to state a reason for imposing a consecutive 

sentence (Cal. Rules of Court, rule 4.406(b)(5); People v. Powell (1980) 101 Cal.App.3d 

513, 518), defendant did not object at the sentencing hearing to the trial court’s statement 

of reasons apparently intended to explain the court’s choice for all of the consecutive 

terms it imposed. Defendant thus forfeited his claim as to any inadequacy of these 

reasons. (People v. Scott (1994) 9 Cal.4th 331, 352–353, 356.)

Nonetheless, given the necessity of remanding for resentencing on other counts, 

we reverse the sentence on count 2 and direct the trial court to reconsider its choice of a 

consecutive term for that count. If the court again chooses to impose a consecutive term

for count 2, it must expressly state its reasons with respect to this particular count.

d. Convictions of violating sections 286, subdivision (c)(1) (counts 3, 5, 6) and 

288a, subdivision (c)(1) (counts 4, 7, 8)

Defendant was convicted in counts 3, 5, and 6 of violating section 286, subdivision 

(c)(1) and in counts 4, 7, and 8 of violating section 288a, subdivision (c)(1). Section 

667.61 does not apply to either offense. (§ 667.61, subd. (c).) Thus, both the jury’s 

findings and the trial court’s sentences pursuant to section 667.61 in these counts were 

contrary to law and must be reversed. Because section 286, subdivision (c)(1) and section 

288a, subdivision (c)(1) provide three possible sentences (three, six, or eight years), 

remand for resentencing is required.
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Accordingly, we vacate the jury’s findings and reverse the sentences as to these 

counts and remand for resentencing.

e. Conviction of attempted lewd act (count 24)

Defendant was convicted in count 24 of an attempt to violate section 288, 

subdivision (a). Section 667.61 is inapplicable to an attempt to commit any of the 

enumerated offenses. (People v. Rodriguez (2012) 207 Cal.App.4th 204, 217.) In 

addition, the amended information did not include a section 667.61 allegation for count 

24 and the jury did not make such a finding. For all of these reasons, the trial court erred 

by sentencing defendant pursuant to section 667.61 for count 24. Because the offense 

was an attempt, section 664, subdivision (a) requires that the trial court impose only half 

of the term it selects from the three possible sentences prescribed for a violation of 

section 288 (three, six, or eight years).

Accordingly, we reverse and remand for resentencing as to count 24.

2. The trial court failed to apply the correct version of section 667.61 to count 9

In count 9 defendant was convicted of a September 24, 2011 violation of section 

288, subdivision (a) (lewd act against a child under the age of 14). The trial court 

imposed a concurrent term of 15 years to life pursuant to section 667.61, subdivision (b) 

for this count and other violations of section 288, subdivision (a) that occurred between 

2000 and 2005 (counts 11–15).

In 2010, section 667.61 was amended to include subdivision (j)(2), which 

provides, “Any person who is convicted of an offense specified in subdivision (c) under 

one of the circumstances specified in subdivision (e), upon a victim who is a child under 

14 years of age, shall be punished by imprisonment in the state prison for 25 years to 

life.” The amendment became operative on September 9, 2010.4 One of the 

 

4 The statute was again amended in 2011, with an effective date of September 29, 

2011, but subdivisions (e)(4) and (j)(2) were not changed and continue in effect.
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circumstances specified in subdivision (e) is the commission of an enumerated offense 

against multiple victims. (§ 667.61, subd. (e)(4).)

Subdivision (j)(2) of section 667.61, as amended in 2010, applied to count 9, but 

not counts 11 through 15, which were committed prior to the effective date of the 

amendment. Thus, the trial court was required to impose a term of 25 years to life for 

count 9, not 15 years to life.

Although we could modify defendant’s sentence for count 9, given the necessity of 

remanding for resentencing for the reasons stated in part 1 of this opinion, we vacate the 

sentence in count 9 and direct the trial court to resentence on that count.

3. The trial court erred by failing to impose a parole revocation restitution fine

The trial court imposed a $5,000 restitution fine pursuant to section 1202.4, 

subdivision (b), but failed to impose a parole revocation restitution fine as required by 

section 1202.45. The fine under the latter statute must be the same amount as the section 

1202.4, subdivision (b) fine.

The Attorney General asks this court to modify the judgment by imposing the 

section 1202.45 fine. Given the necessity of remanding for resentencing, we simply 

direct the trial court to impose the section 1202.45 fine.
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DISPOSITION

The jury’s findings pursuant to Penal Code section 667.61 are vacated with respect 

to counts 1 through 8, 16 through 18, and 21. The sentences for counts 2 though 9 and 24 

are reversed and the matter is remanded for resentencing on those counts in accordance 

with this opinion. The trial court is directed to impose a Penal Code section 1202.45 

parole revocation restitution fine of $5,000 and to issue an amended abstract of judgment

reflecting that fine as well as the new sentence. The court is further directed to send a 

copy of the amended abstract of judgment to the Department of Corrections and 

Rehabilitation. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

MILLER, J.*

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.