Filed 12/11/13 P. v. Aguilar CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOSE LUIS AGUILAR, 

 Defendant and Appellant. 

 G047777 

 (Super. Ct. No. 09WF1126) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, Carla M. 

Singer, Judge. Affirmed as modified and remanded for re-sentencing. 

 David M. McKinney, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

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

Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James 

H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * 
2

 A jury convicted defendant Jose Luis Aguilar of six counts of committing 

lewd acts upon three children under age 14. (Pen. Code, § 288, subd. (a); all further 

statutory references are to this code.) As to all of the counts, the jury found that the 

offenses were committed against more than one victim. The jury also found that as to 

four of the counts, defendant had engaged in substantial sexual contact. The court 

subsequently found defendant had suffered a prior qualifying conviction under section 

1203.066, subdivision (a)(5), he was a habitual sex offender (§ 667.61), he had suffered a 

prior serious felony conviction, and that the present offense was also a serious felony 

(§ 667, subd. (a)(1). The court sentenced defendant to six consecutive terms of 50 years 

to life, plus 5 additional years for the prior serious felony conviction. 

 In his appeal, defendant raises several claims. First, he contends the court 

erred in imposing double terms under section 667, subdivisions (d) and (e)(1), on counts 

3, 5, 7, and 8, because the “prior” convictions did not, in fact, precede these crimes. The 

Attorney General agrees that this contention is correct. We likewise agree and will order 

the court to re-sentence defendant accordingly. 

 Second, defendant argues the court improperly sentenced him to 25 yearsto-life terms (doubled by the court to 50 years to life) under section 667.61, subdivisions 

(a) and (d)(1) on counts 3, 5, 7, and 8. We agree that this section does not apply because 

when the conduct, which is the subject of these counts, took place defendant had not 

“been previously convicted.” (§ 667.61, subd. (d)(1).) Nevertheless, the sentence was 

proper because it was not only authorized, but mandated under section 667.61, 

subdivision (j)(2). 

 Third, defendant claims that, by imposing six consecutive terms, the court 

erred in believing consecutive sentencing was mandatory under section 667.61, 

subdivision (i). The court properly imposed consecutive sentences, not under this 

section, but because it found the acts for which defendant was convicted were separate 

acts. 
3

 Finally, defendant urges the court abused its discretion in refusing to strike 

his prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. 

We reject this contention; the trial court properly exercised its discretion in not striking 

the prior convictions. 

 In his opening brief, defendant also contended that his conviction on two 

charges (counts 3 and 5) must be vacated because his prosecution for these crimes was 

time barred. The Attorney General sought to uphold the convictions on these counts 

under section 803, subdivision (f). We asked the parties to brief the effect of section 

801.1 on the timeliness of the prosecution for these charges. Defendant now concedes 

section 801.1 is controlling. Based on this concession, we affirm defendant’s convictions 

on counts 3 and 5. 

FACTS 

 Three sisters, J.C., Y.A., and R.A. and their mother E.S. lived with 

defendant and his family during two periods. The first time was after the family arrived 

from Mexico in 2001, when E.S. was pregnant with J.C. At that time Y.A. was in third 

grade and R.A. was in kindergarten. In 2009 the second stay with defendant was for 

about a month. After the second stay, when E.S. and her daughters lived across the street 

from defendant, J.C. was asked to get some water from defendant’s house. She declined, 

stating she was afraid of defendant. She then told R.A. that defendant had been sticking 

his hands down her “private front part.” R.A. told their mother, who in turn called the 

police. At the trial all three sisters testified to having been molested by defendant, Y.A. 

and R.A. during the 2001 stay with defendant and J.C. during the second stay in 2009. 
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DISCUSSION 

1. The convictions based on the crimes against Y.A. and R.A (counts 3, 5, 7, and 8) 

preceded defendant’s other conviction for lewd conduct; hence the other conviction 

should not have been used as a “prior.”

 The court doubled the term for the convictions on counts 3, 5, 7, and 8 

under section 667, subdivisions (d) and (e)(1). These counts were based upon conduct 

that occurred in 2001 and 2002. The “prior” crime, to which defendant had pleaded 

guilty, consisted of a lewd act against a six-year-old child (§ 288, subd. (b)) that had 

taken place in 2003. Because that offense did not precede the conduct providing the basis 

for counts 3, 5, 7, and 8, the doubling of the sentence on these counts was error. The 

Attorney General concedes this and we remand the case for the court to reduce the terms 

on counts 3, 5, 7, and 8 from 50 years to life to 25 years to life. 

 

2. The imposition of a sentence of 25 years to life on counts 3, 5, 7, and 8 was mandated 

under section 667.61, subdivision (j)(2).

 Defendant argues that section 667.61, subdivisions (a) and (d)(1) does not 

apply to counts 3, 5, 7, and 8, because, as noted above, the conduct providing the basis 

for the conviction on these counts occurred before the 2003 conviction for lewd act on a 

child. We agree. But this does not make the sentence erroneous. In fact, a lesser 

sentence would have constituted an unlawful sentence. 

 Section 667.61, subdivision (j)(2) provides “[a]ny 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.” Defendant’s conviction on counts 

3, 5, 7, and 8 were under section 288, subdivision (a). This crime is listed in section 

667.61, subdivision (c)(8). The circumstances specified in section 667.61, subdivision 
5

(e)(4) also apply because defendant committed this offense against more than one victim. 

The jury found that the crimes were committed against more than one victim. Hence the 

25 years-to-life sentence was mandated under section 667.61, subdivision (j)(2). 

 Defendant argues that the court erroneously based the sentence on section 

667.61, subdivision (a). Even if this were true, such an error would not require us to 

reverse the sentence imposed on this ground. The sentence is mandated and the jury 

made the required finding, thus satisfying the requirements of Apprendi v. New Jersey

(2000) 530 U.S. 466, 483. Thus, the court would have no choice but to impose the same 

sentence. 

3. Consecutive sentences were properly imposed.

 The prosecution argued the court was required to impose consecutive 

sentences under section 667.61, subsection (i). The Attorney General concedes that this 

provision does not apply. Defendant argues because of this error by the prosecutor, the 

court erroneously sentenced him to consecutive sentences. But the record does not 

support this claim. Before sentencing, the court stated “it is my intention today to 

sentence you in accordance with the law.” The court made this statement without 

reference to any specific statute. We must therefore inquire whether the sentence is 

authorized separately from section 667.61, subsection (i). And it is. 

 As the Attorney General points out, citing People v. Rodriguez (2005) 130 

Cal.App.4th 1257, 1262-1263, the court has discretion to order consecutive sentences 

when the crimes involve separate crimes or separate victims. And, at sentencing, the 

court stated “the acts of which [defendant] was convicted in this case were separate acts. 

There were three separate victims, multiple acts with respect to each victim. Each charge 

of which he stands convicted was a separate crime. And, consequently, the court will be 

imposing consecutive sentences.” 
6

4. The court did not abuse its discretion in refusing to strike defendant’s prior 

conviction. 

 In explaining her refusal to strike the prior conviction, the court stated, “I 

considered the Romero [People v. Romero, supra, 13 Cal.4th 497] circumstances and 

whether or not it would be appropriate to strike the strike. Because the strike is identical 

to the classification of crime that was committed in the case on which the defendant was 

sentenced last week, I referred to the factors under Romero . . . and came to the 

conclusion that the strike should not be stricken. The defendant’s background and 

character and the information contained in both probation reports from both cases suggest 

that he is a known sexual predator in the community. The conviction in the earlier case 

was sometime in 2003, I believe. And the charges that we addressed in this case arose in 

between which is not a significant period of time. It does not appear that the defendant 

has prospects for a crime-free life.” Defendant focuses on the court’s statement “the 

charges that we addressed in this case arose in between” and concludes not only that the 

court was mistaken in thinking the earlier conviction preceded all of the charges involved 

in the present case, but also that this must be why the court refused to exercise its 

discretion in striking the prior conviction. We believe defendant reads too much into this 

phrase. 

 Although the phrase was less than elegant, it appears the court misspoke 

and meant the prior conviction was sandwiched between the charges involving Y.A. and 

R.A and the charges involving J.C. More significantly, the court based its decision on 

defendant’s course of conduct sexually abusing many little girls over a substantial period 

of time. It would appear that the exact sequence in which these molestations took place 

would have little relevance on the question of whether the court should strike defendant’s 

prior conviction. 
7

 And, considering the circumstances of this case, the number of little girls 

involved here, together with the 2003 abuse, it hardly appears the court abused its 

discretion in refusing to strike the prior conviction. 

 “While the trial court has the power to dismiss a strike conviction [citation], 

an appellate court will not disturb the trial court’s ruling denying defendant’s request to 

dismiss his strike conviction absent an affirmative showing of an abuse of discretion. 

[Citation.]” (People v. Uecker (2009) 172 Cal.App.4th 583, 599.) Here, defendant’s 

only argument is based on the premise that the trial court was mistaken as to the sequence 

in which defendant’s many molestations took place. But it was not the sequence of these 

events; it was the number of them and defendant’s persistence in continuing in this 

conduct over time. Even if the court was mistaken as to the exact sequence, this would 

hardly constitute an abuse of discretion. 

 As our Supreme Court explained in People v. Williams (1998) 17 

Cal.4th 148, “no weight whatsoever may be given to factors extrinsic to the [“Three 

Strikes”] scheme” and “the court in question must consider whether, in light of the nature 

and circumstances of his present felonies and prior serious and/or violent felony 

convictions, and the particulars of his background, character, and prospects, the 

defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence 

should be treated as though he had not previously been convicted of one or more serious 

and/or violent felonies.” (Id. at p. 161.) Based on the facts presented in this case, and 

considering defendant’s 2003 conviction for similar conduct, we can hardly conclude he 

“should be treated as though he had not previously been convicted.” (Ibid.) 
8

DISPOSITION 

 The superior court is directed to strike the sentences on counts 3, 5, 7, and 

8, impose new prison terms in accordance with this opinion, and send a revised abstract 

of judgment to the Department of Corrections and Rehabilitation. In all other respects, 

the judgment is affirmed. 

 

 RYLAARSDAM, ACTING P. J. 

WE CONCUR: 

BEDSWORTH, J. 

ARONSON, J.