(Super. Ct. No. 09F04116)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Convicted on multiple counts of sexually abusing minors, defendant Kevin Fitzgerald was sentenced to an aggregate term of 120 years to life in state prison, plus 20 years. On appeal, defendant contends the trial court failed to exercise its discretion in sentencing him to consecutive terms for each of his convictions. Finding defendant received ineffective assistance of counsel at sentencing, we reverse and remand this matter to the trial court to allow the trial court to exercise its discretion in sentencing.
The facts of the underlying crimes are not relevant to the issue on appeal. The discussion is thus limited to the facts surrounding defendant's convictions and sentencing.
By amended complaint, later deemed the information, defendant was charged with five counts of committing a lewd and lascivious act against a child under the age of 14 (Pen. Code, § 288, subd. (a)). It was further alleged that the offenses committed by defendant involved multiple victims (Pen. Code, § 667.61, subd. (e)(5)), and defendant was previously convicted of a serious felony (Pen. Code, §§ 667, subd. (a), (b)-(i), & 11072.12).
Defendant pleaded not guilty; a jury subsequently found him guilty of committing the lewd acts charged in counts one through four. Defendant was acquitted on the fifth count. The jury also found true the allegation that defendant's crime involved multiple victims, and defendant admitted he was previously convicted of a serious felony.
A probation report was then prepared wherein the probation department recommended defendant be sentenced to an aggregate term of 120 years to life in state prison, plus 20 years. The trial court reviewed and considered the probation report and sentenced defendant according to the report: "In regard to four counts, each a violation of penal code section 288(a), there were multiple victims, occurring on separate occasions and the defendant has a prior serious felony conviction that was pled and admitted on the matter. So the Court will sentence the defendant to twice the statutory term of 15 to life for each of those, so 30 years to life for four counts.
"The defendant [is] also subject to the five year enhancement for each count pursuant to penal code section 667(a), which means an additional 20 years.
"So the defendant is committed to state prison for the indeterminate term of 120 years to life consecutive to a ...