Consecutive Terms in Multiple Convictions for Aggravated Sexual Assault in California

Multiple convictions for aggravated sexual assault that occurred prior to Penal Code section 269's amendment in 2006 required imposition of consecutive terms under section 667.6, subdivision (d). In People v. Jimenez (2000) 80 Cal.App.4th 286, the defendant was convicted of two counts of violating section 269, subdivision (a)(3) (forcible sodomy), after he sexually assaulted a 12-year-old child on numerous occasions in 1996. (Jimenez, supra, 80 Cal.App.4th at pp. 288-289.) The trial court sentenced the defendant to two consecutive terms of 15-years-to-life for the sexual assault convictions, indicating that it was required to do so under section 667.6. (Id. at p. 288.) On appeal, the defendant argued the trial court had discretion to impose concurrent sentences because section 269 was not listed as a qualifying offense under section 667.6. (Id. at p. 290.) Alternatively, he argued the two statutes operated exclusively because a violation of section 269 is punished by an indeterminate sentence, and section 667.6, by its terms, applied only to crimes falling within a determinate sentencing scheme. (Ibid.) The Fifth District rejected the defendant's arguments. First, it held that section 269 fell within section 667.6, subdivision (d)'s mandatory consecutive sentencing provision because, in order to be convicted under section 269, a defendant must be found beyond a reasonable doubt to have committed at least one of the qualifying offenses under section 667.6, subdivision (e). (Jimenez, supra, 80 Cal.App.4th at p. 291.) Second, the court reasoned that it would be irrational to hold that section 667.6, subdivision (d) did not apply to multiple convictions under section 269 because it could result in more lenient sentencing for individuals convicted of sex crimes committed against children by exempting them from the additional penalty of consecutive sentences. (Id. at p. 292.) In People v. Figueroa (2008) 162 Cal.App.4th 95, the defendant was convicted of two counts of violating section 269, subdivision (a)(1) (rape), for which the trial court imposed two consecutive terms of 15-years-to-life. (Figueroa, supra, 162 Cal.App.4th at p. 97.) The defendant challenged the sentence on several grounds: (1) section 669, rather than section 667.6, subdivision (d), applied to his aggravated sexual assault convictions because violations of section 269 are not expressly listed as qualifying offenses under section 667.6, subdivision (e); (2) Jimenez was wrongly decided because section 269 establishes a separate and alternative sentencing scheme centered around indeterminate sentences; and (3), the Legislature's amendment of section 269 demonstrates that multiple violations of the statute committed before 2006 were not subject to mandatory consecutive sentencing. (Id. at pp. 98-100.) The Fourth District rejected the defendant's arguments. First, the court looked to People v. Glass (2004) 114 Cal.App.4th 1032 (Glass), which observed that the bill analysis for section 269 from the Assembly Committee on Public Safety in 1994 specifically acknowledged the applicability of section 667.6 to section 269 crimes. (Figueroa, supra, 162 Cal.App.4th at p. 99; Glass, supra, 114 Cal.App.4th at p. 1037.) That bill analysis states: "Under section 269, as it might interact with . . . section 667.6, a person convicted of six counts of child molestation, could receive a sentence of 90 years to life in prison, or to six consecutive life sentences." (Glass, supra, 114 Cal.App.4th at p. 1037, fn. 10.) The court in Figueroa concluded that the quoted language from section 269's bill analysis foreclosed the defendant's position because it evinced the Legislature's intent to have section 667.6, subdivision (d)'s mandatory consecutive sentencing provision apply to convictions under section 269, rather than have it serve as a separate and alternative sentencing scheme to section 269's indeterminate life-term scheme. (Figueroa, supra, 162 Cal.App.4th at p. 99.) The court also rejected the defendant's argument that under section 669, the trial court had discretion to impose concurrent or consecutive life terms. (Figueroa, supra, 162 Cal.App.4th at pp. 99-100.) It reasoned that because section 669 did not reference section 269, and because section 669 could not apply to offenses qualifying under section 667.6, subdivision (d), which were the predicate offenses required to support a conviction under section 269, section 669 did not apply to sentences under section 269. (Id. at p. 100.) Finally, the court rejected the defendant's argument that the Legislature's 2006 amendment of section 269 demonstrated that the Legislature did not intend for convictions under that statute to trigger section 667.6, subdivision (d)'s mandatory consecutive sentence provision. (Ibid.) Adopting the Fifth District's reasoning in Jimenez, the court held that convictions under section 269 for acts committed prior to the statute's 2006 amendment triggered section 667.6, subdivision (d)'s mandatory consecutive sentencing provision. (Ibid.)