Concurrent Sentencing under the One Strike Law?

There is quite a bit of confusion over what the One Strike Law in Penal Code § 667.61 provides.  It mandates an indeterminate sentence of 15 years or 25 years to life in prison when the jury convicts defendant of specified felony sex crimes and finds certain factual allegations to be true.  Penal Code § 667.61(c) lists the crimes to which the one strike law generally applies.

Continuous sexual abuse of a child in violation of Penal Code § 288.5 is listed at § 667.61(c)(9) as one of those crimes.

The One Strike Law also includes a provision requiring consecutive (not concurrent) sentences for some, but not all, of the offenses listed in § 667.61(c).  Section 667.61(l) states that for more than one conviction for any offense listed in paragraphs (1) through (7), inclusive, of subdivision (c), the judge shall impose a consecutive sentence for each offense if the crimes involve separate victims as defined in § 667.6(d).

Jose Antonio Lopez fled to Mexico in 2010 after his two step-granddaughters, then ages six and eight, accused him of sexually abusing them.  The two girls’ mom reported this to the Bakersfield Police Department and in response, Lopez fled to Mexico. 

Eight years later, Lopez was arrested in California and a Kern County Superior Court jury convicted him of two counts of continuous sexual abuse of a child – one for each step-granddaughter – and judge Stephen Schuett sentenced Lopez to state prison for two consecutive terms of 15 years to life.

On appeal to the Second Appellate District, Lopez made two arguments that merit mention in this article.  First, he argued that the prosecution violated his Sixth Amendment right to a speedy trial.  The Second Appellate District, Division Seven, rejected this argument because Lopez fled the jurisdiction.

Second, Lopez argued that when he was sentenced, the judge did not know it had discretion to impose concurrent sentences on his two convictions.  The judge never explained any consideration of concurrent sentences and why consecutive sentences were imposed.

Lopez argued that continuous sexual abuse of a child in violation of Penal Code § 288.5 is listed in Penal Code § 667.61(c)(9), but consecutive sentences are only mandatory for offenses listed in § 667.61(c)(1) to (c)(7).  Therefore, the judge had discretion to impose concurrent sentences on his convictions.

The Second Appellate District agreed with Lopez’s interpretation.  It explained that “[T]he expression of some things in a statute necessarily means the exclusion of other things not expressed.”  Le Francois v. Goel (2005) 35 Cal. 4th 1094, 1105; accord, People v. Gollardo (2017) 17 Cal. App. 5th 547, 557.

The appellate court found another case in support of this almost exact suggestion by Lopez, explaining that because section 667.61(i) requires a trial court to impose consecutive sentences for certain offenses in section 667.61(c)(1) to (7) – it does not require the court to impose consecutive sentences for other offenses in the statute – namely, subdivisions (c)(8) and (c)(9).  See People v. Zaldanza (2019) 43 Cal. App. 4th 527, 536 (because “section 288, subdivision (a) does not fall within [subdivision (c)(1) – (7) – it is listed in section 667.61, subdivision (c)(8) - . . . the court retains discretion to impose concurrent or consecutive 25-year-to-life terms for the three violations of section 288, subdivision (a)”].

 

Put another way, section 667.61, subdivision (i), “by implication leaves the decision to impose consecutive or concurrent terms” for the nonspecified offenses in section 667.61, subdivision (c), “to the sentencing court’s discretion under 669.”  People v. Valdez (2011) 193 Cal. App. 4th 1515, 1524; see also People v. Bradford (1976) 17 Cal. 3d 8, 20 [under section 669 “a trial court has discretion to determine whether several sentences are to run concurrently or consecutively”].

Consequently, the Second Appellate District Court vacated the sentences and directed the trial court to exercise its discretion whether to impose consecutive or concurrent sentences on those convictions.

We have little doubt that the trial court will affirm consecutive sentences, given the facts of this case involving victims who were just six and eight years old and defendant attempting to avoid justice by fleeing to Mexico, only to be arrested eight years later.

The citation for the Second Appellate District Court ruling discussed above is People v. Jose Antonio Lopez (2nd App. Dist., 2021) 76 Cal. App. 5th 287, 291 Cal. Rptr. 3d 455.

For more information about sex offenses in general and the One Strike Law, please click on the following articles: