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The People v. Richard Paul Powell

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)


December 28, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD PAUL POWELL, DEFENDANT AND APPELLANT.

(Super. Ct. No. CM031556)

The opinion of the court was delivered by: Mauro, J.

P. v. Powell

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Richard Paul Powell entered a negotiated plea of guilty to continuous sexual abuse of his stepdaughter, a child under the age of 14 (Pen. Code, § 288.5, subd. (a)--count 1),*fn1 and to committing a lewd act upon his other stepdaughter, also a child under the age of 14 (§ 288, subd. (a)--count 3). In exchange for his plea, the prosecution agreed to dismiss -- with a Harvey*fn2 waiver -- the remaining count of continuous sexual abuse and the allegations of substantial sexual abuse. The prosecution also agreed to a sentencing lid of 24 years in state prison.

At sentencing, the trial court considered the probation report and the recommendations made therein, including a recommended aggregate term of 24 years in state prison. Defendant argued for probation or the low term, noting that he had no prior convictions, was remorseful, and admitted his crimes early on in the process. The trial court was not persuaded and sentenced defendant to an aggregate term of 24 years in state prison, comprised of the upper term of 16 years on count 1 (the principal count) and a full consecutive term of eight years (the upper term) on count 3.

The trial court later explained its sentencing decision as follows: "I find that the factors in aggravation outweigh the factors in mitigation. Accordingly, the upper term was selected.

"Penal Code [s]section 667.6(d) mandates that those two sentences be fully consecutive, and I previously ordered that.

"[Defendant], I believe I did not adequately express on the record my reasons for imposing the sentence that I did. You and counsel were entitled to that. That's why I have recalled the matter."

Defendant contends on appeal that because the trial court wrongly believed consecutive sentences were mandatory under section 667.6, subdivision (d), the court failed to properly exercise its discretion in sentencing defendant. We agree.

As conceded by the People, full-term consecutive sentences are not mandated by section 667.6, subdivision (d) when, as here, only one conviction is for a qualifying offense under section 667.6, subdivision (e). (People v. Goodliffe (2009) 177 Cal.App.4th 723, 730.) Because the trial court indicated consecutive sentences were mandatory, the court did not exercise its discretion in sentencing defendant, and the case must be remanded for resentencing.*fn3 (See People v. Deloza (1998) 18 Cal.4th 585, 600 [case must be remanded if trial court wrongly believed consecutive sentences were mandatory].)

On remand, the court shall exercise its discretion in sentencing defendant and state on the record the reasons for the sentence imposed. (Cal. Rules of Court, rule 4.406(b)(5).)

DISPOSITION

The judgment is reversed solely as to the sentence imposed. The matter is remanded for resentencing in a manner consistent with this opinion.

We concur: BLEASE , Acting P.J. NICHOLSON , J.


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