People v.Rodriguez ,
District: 2 DCA , Division: 4 , Case #: B231579
Opinion Date: 6/25/2012 , DAR #: 8779
Case Holding:
Under the post September 2006 amendment to the One Strike law (Penal Code section 667.61), the One Strike penalty attaches to each enumerated offense. Appellant was convicted of numerous sex offenses and sentenced to the upper term of eight years plus a 25-years-to-life "enhancement" for one of the offenses, plus consecutive eight year terms for the other offenses. The offenses were committed against a single victim on a single occasion. Former Penal Code section 667.61, subdivision (g) provided that a One Strike sentence, i.e., 25-years-to-life, shall be imposed once for any offense or offenses committed against a single victim during a single occasion. However, in September 2006, prior to appellant's 2009 offenses, the Legislature amended the statute to eliminate subdivision (g). The court here found that the import of the amendment was to establish that such a sentence must be imposed on each offense. Under this current version of the statute, the court still retains the discretion to impose the sentences concurrently or consecutively.
Opinion Date: 6/25/2012 , DAR #: 8779
Case Holding:
Under the post September 2006 amendment to the One Strike law (Penal Code section 667.61), the One Strike penalty attaches to each enumerated offense. Appellant was convicted of numerous sex offenses and sentenced to the upper term of eight years plus a 25-years-to-life "enhancement" for one of the offenses, plus consecutive eight year terms for the other offenses. The offenses were committed against a single victim on a single occasion. Former Penal Code section 667.61, subdivision (g) provided that a One Strike sentence, i.e., 25-years-to-life, shall be imposed once for any offense or offenses committed against a single victim during a single occasion. However, in September 2006, prior to appellant's 2009 offenses, the Legislature amended the statute to eliminate subdivision (g). The court here found that the import of the amendment was to establish that such a sentence must be imposed on each offense. Under this current version of the statute, the court still retains the discretion to impose the sentences concurrently or consecutively.
The One Strike law constitutes a
separate sentencing scheme for pertinent offenses and punishment for such
offenses is not subject to other sentencing schemes, unless so provided.
Imposing the One Strike sentence as an enhancement to an eight year term was
error. The court's imposition of a three-year enhancement for use of a knife on
the One Strike sentence and a separate sentence for kidnapping during a
carjacking were also errors because the use of a knife and the kidnapping
provided the minimum number of circumstances required for the One Strike
sentence. Under subdivision (f) of the statute, where only the minimum number
of circumstances required for the One Strike sentence have been pled, the
statute precludes separate penalty for these circumstances.
If you are charged with more than one strike in a single complaint, you need to be represented by an attorney with the experience and knowledge that will fight hard for your rights in court.
Contact attorney George Derieg for a free consultation.
www.eastbayattorney.com
George Derieg 510-355-2747
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