What Is the Penalty for Rape During Burglary In California ?
In People v. Ervin (1996) 50 Cal. App. 4th 259, the defendant was convicted of a violent rape during a burglary.
Pursuant to the same habitual sexual offender statute ( 667.61, subd. (b)), the court was compelled to sentence him to a term of 15 years to life and doubled the term under the two strikes scheme of the three strikes law. ( 667, subds. (b)-(i).)
The court sanctioned the use of both sentencing laws.
"The three strikes law and section 667.61 serve different objectives----the former punishes recidivism, the latter aggravated sex offenses----and there is simply no reason for suggesting that a recidivist criminal ought to be rewarded rather than penalized because his latest offense is sufficiently heinous to bring him within the provisions of section 667.61." (People v. Ervin, supra, 50 Cal. App. 4th at p. 264.)
The three strikes law applies to defendants with a prior felony conviction "in addition to any other enhancement or punishment provisions which may apply . . . ." (Pen. Code, 667, subd. (e), italics added.)
The habitual sexual offender statute enumerates several statutory provisions pursuant to which a court may sentence a defendant "in lieu" of the section 667.61 sentencing provisions.
However, the three strikes law is not among these "in lieu of" provisions. (Pen. Code, 667.71, subd. (c).)
As explained in Ervin, "There is no apparent reason in law or logic to believe the Legislature intended either law to operate exclusively of the other. . . . Where, as here, two statutes are not inconsistent, both will be given effect." (People v. Ervin, supra, 50 Cal. App. 4th at p. 264.)