(Super. Ct. No. 02F04947)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this case we reverse the 525-years-to-life sentence of defendant Alejandro Cruz Carrillo, which the court incorrectly calculated pursuant to the habitual sexual offender statute. (Pen. Code,*fn1 § 667.71.) As the People themselves concede, they presented insufficient evidence that defendant's two Oregon prior convictions qualified as offenses listed in the habitual sexual offender statute that subjected defendant to his prolonged sentence. We remand the matter for resentencing for the People to prove, if they can, that the prior Oregon convictions are qualifying convictions.
In so holding, we reject defendant's remaining appellate contentions relating to the evidence, his counsel's performance, and alleged prosecutorial misconduct.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, defendant repeatedly molested the three daughters (11-year-old Mi., eight-year-old Me., and seven-year-old D.) of his live-in girlfriend while his girlfriend was working the graveyard shift. The girls' mother "had a feeling something was wrong" and asked the girls, but they denied it.
In 2002, one of the daughters told her father's girlfriend about the molests, and the police removed the girls from their mother's home. The same day the girls were removed, defendant left. He was not found by police until 2009 in North Carolina.
Shortly after being removed, the girls were interviewed by a forensic interview specialist (the MDCI interviews). They were also examined by a pediatrician specializing in child abuse, Dr. Angela Rosas. The girls all exhibited signs of being sexually abused. At trial, Dr. Anthony Urquiza testified about child sexual abuse accommodation syndrome.
A jury found defendant guilty of all 21 charged counts of committing a lewd act on a child under 14 and found true a multiple victim allegation. The court found true that defendant had two prior Oregon convictions that qualified as offenses listed in the habitual sexual offender statute and accordingly sentenced him to 525 years to life in prison (25 years to life for each of the 21 counts).
The People Presented Insufficient Evidence That
Defendant's Prior Oregon Convictions Qualified
Under The Habitual Sexual Offender Statute
Defendant contends the court improperly sentenced him as a habitual sexual offender because his two Oregon prior convictions did not qualify for purposes of the habitual sexual offender statute.
Section 667.71, subdivision (a), defines a "habitual sexual offender" as "a person who has been previously convicted of one or more of" certain specified offenses "and who is convicted in the present proceeding of one of those offenses." A person who meets this statutory definition "is punish[able] by imprisonment in the state prison for 25 years to life." (§ 667.71, subd. (b).) The certain specified offenses include "[a]n offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision." (§ 667.71, subd. (c)(13).)
There Was Insufficient Evidence The Oregon
Rape Prior Qualified Under The ...