The Penalty for Sex Crimes Againsta Minors in California
In People v. Figueroa (2008) 162 Cal.App.4th 95, the defendant was convicted of a number of sex crimes involving a minor, including two counts of aggravated sexual assault of a minor where the predicate offense in both instances, as is the case here, was forcible rape in violation of Penal Code section 261, subdivision (a)(2). (Figueroa, supra, 162 Cal.App.4th at pp. 97-98.)
The defendant in Figueroa argued that the trial court had erred in imposing consecutive sentences of 15 years to life on the two aggravated sexual assault of a minor convictions, asserting that section 667.6(d) did not specify section 269 as a crime for which consecutive sentencing was mandatory. (Figueroa, at p. 98.)
The court rejected this argument. The court determined that because the defendant had been convicted of violating former section 269, subdivision (a)(1), by raping the victim in violation of section 261, subdivision (a)(2), "the jury necessarily found that he committed violations of section 261, subdivision (a)(2), for which section 667.6, subdivision (d) imposes mandatory consecutive sentences." (Figueroa, at p. 98.)
The defendant in Figueroa made an additional argument concerning the September 2006 amendment to section 269 that included a requirement of consecutive sentences for each offense where they involved different victims or the same victim on different occasions.
The defendant argued that "the amendment of section 269 in September 2006, to expressly apply the mandatory consecutive provision of section 667.6, subdivision (d) signaled that the applicability of section 667.6, subdivision (d) to section 269 was ambiguous before that date. The defendant also cited the Legislative Counsel's Digest for the 2006 amendment to section 269 which stated, 'The amendment would require the court to impose a consecutive sentence for each offense that results in a conviction under this provision.' " (Figueroa, supra, 162 Cal.App.4th at p. 100.)
The Figueroa court rejected the defendant's position:
"No doubt, the amendment does, indeed, require a consecutive sentence for each offense. However, the digest did not state that that requirement did not already exist under section 667.6, subdivision (d). Not to be ignored is the analysis of the Assembly Committee on Public Safety in 1994 that multiple convictions under section 269 were to be punished consecutively under section 667.6, former subdivision (d). Additionally, section 667.6, subdivision (d) has not, since 2006, been amended to add section 269. What we are left with then, at best for defendant, are dueling legislative analyses and an interpretation of inaction on the part of the Legislature. Rather than attempt to sort out these legislative tea leaves, we prefer to adopt the reasoned analysis of our colleagues at the Fifth District in Jimenez. Section 667.6, subdivision (d) was crystal clear, at the time defendant committed his crimes, in its application to the rapes that the jury in this case found beyond a reasonable doubt to have been committed. Therefore, consecutive sentencing was mandatory under that subdivision." (Ibid.)