IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KEVIN FITZGERALD, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F04116)
The opinion of the court was delivered by: Hull , J.
P. v. Fitzgerald
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 determinate term of 20 years."
The record reflects that the trial court's sentencing decision was based on the probation department's recommendation, which indicated that consecutive sentences were mandatory under Penal Code section 667.6, subdivision (d). Defendant, however, was convicted of violating Penal Code section 288, subdivision (a), which is not an enumerated crime in Penal Code section 667.6, subdivision (e). Accordingly, consecutive sentences were authorized, but were not mandatory. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) Nevertheless, counsel failed to object to the trial court's error at sentencing. The issue is thus forfeited on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.)
Defendant thus contends counsel's failure to object at sentencing resulted in ineffective assistance of counsel, and the People concede the issue. Having reviewed the record, we agree "counsel's representation fell below an objective standard of reasonableness." (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693].) We can conceive of no rational basis for counsel's failure to object to the obvious misstatement of the law in the probation report that consecutive sentences were mandatory, which was then adopted by the trial court in sentencing defendant. (People v. Fosselman (1983) 33 Cal.3d 572, 581 ["Reviewing courts will reverse . . . on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].) Accordingly, we remand the matter for resentencing.
Defendant's convictions on counts one through four are affirmed; the matter is remanded for the limited purpose of allowing the trial court to properly exercise its discretion in sentencing defendant.
We concur: NICHOLSON , Acting P. J. MURRAY , J.
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