Filed 1/28/14 P. v. Gonzalez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ANT ONIO GONZALEZ , Defendant and Appellant. B 246265
(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; rema nded 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 Assis tant Attorney General, Kenne th C. Byrne , Supervising Deputy Attorney General, and William N. Frank , Deputy Attorney General, for Plaintiff and Respondent.

_________________________________2

Defend ant 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 offens es 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 amendm ent 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 ev idence supporting count 7, but later withdrew this issue after reviewing matters noted by the Attorney General.3 BACKGROUND Except for t he date of commission of count 9, none of the issues on appeal turn s 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 rep eatedly engaged in sodomy , oral copulation, and lewd acts with boys under the age of 14

. Defendant also attempted a lewd act with a gir l 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 chil d 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 i n 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 2 88.2, su bdivision (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 victim s 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 c ount 27 during
trial. There was no count 10.
The trial court sentenced d efendant 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 t he age of 10) (victim No. 1 ) , 25 years to life (based upon § 667.61, subd. (b) multiple victims finding) ;4

Count 2

– section 288.7, subdivision (a) (victim No. 1 ) , 25 years to life, run consecutive ly (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 li fe, 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, s ubdivision (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, r un 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, subdivis ion (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) ;5

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 (ba sed upon § 667.61, subd. (b) multiple victims finding) ; Count 1 7

– 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) ; C ount 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. I napplicability of sec tion 667.61 to counts 1 through 8, 16 through 18, 21,
and 24 With respect to every count other than count 25, t he trial court expressly sentenced
defendant under the provisions of section 667.61, also known as the One Strike law. The prosecutor had alleg ed 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 t he court stated, “Court recognizes that Penal Code section 667.61 is app licable. Cou r t 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 cou rt erred by imposing consecutive sentences of 25 y ears 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)

. T he 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, subdiv ision (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 co ntends the trial court articulated insufficient reasons for making
the terms consecu tive 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 se ction 288.7 (counts 1 , 2, 16, 17, 18, 21) Defendant was convicted in counts 1, 2, 1 6 , 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 finding s and the trial court’s

sentenc es 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 attentio n. ( People v. Autry (1995) 37 Cal.App.4th 351, 364.)7

As the Attorney General argues , the mandatory sentence f or a violation of section 288.7, subdivision (a) is 25 years to life, the same sentence improperly imposed under
section 667.61. The Attorney Ge neral 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 sente nce as to these counts.

c. Imposition of consecutive terms for counts 1 and 2
Defendant argues in his r eply 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) , d efendant did not object at the sentencing hearing to the trial court’s statement of reasons apparen tly 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 r emanding for resentencing on other counts,

we reverse the sentence on count 2 and direct the trial court to re consider 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 th is particular count

. d

. Convictions of violating section s 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, su bdivision (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 finding s and the trial court’s sentences pursuant to section 667.61 i n these counts were contrary to law and must be reversed

. Because s ection 286, subdivision (c)(1) and section 288a, subdivision (c)(1) provide three possible sentences (t hree, six, or eight years ), remand for resentencing is required.8

Accordingly, we vac ate the jury’s findings and reverse the sentences as to these counts and remand for resentencing

.
e . Convicti on 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 am ended information did not include a section 667.61 allegation for count 24 and the jury did not make such a fin ding. For all of these reasons, t he trial court erred by sentencing defendant pursuant to section 667.61 for count 24. Because the offense was an attempt, s ection 664, subdi vision (a) requires that the trial court impose only half
of the term it selects from the three possible sentences prescribed for a violation of

s ection 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 violati on o f 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 speci fied 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.” T he amendment became operative on Septemb er 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.9

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 count s 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, give n 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 rest itution 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 1202.4 5

. The fine under the latter statute must be the same amoun t 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 120 2.45 fine.10 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 f urther directed to send a copy of the amended abstract of judgment to the Department of Corrections and
R ehabilitation. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED

.

MILLER, J. *
We concur:

ROTHSCHILD, Acting P. J.

CHA NEY, J.

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