California Court of Appeal, First District, Fifth Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Superior Court of Alameda County, No. C156534, C. Don Clay, Judge.
Dirck Newbury, under appointment by the Court of Appeal, Berkeley, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin and Gregg E. Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.
Darren Derae Sasser (Sasser) appeals from a sentence imposed after we remanded the matter to the trial court for resentencing. He contends: (1) his new sentence of 495 years to life violates his right against double jeopardy, because the sentence is more severe than his original sentence of 458 years four months to life; and (2) the court erred in imposing a prior [168 Cal.Rptr.3d 7] serious felony enhancement (Pen. Code, § 667, subd. (a)(1)) to multiple determinate terms imposed pursuant to the " Three Strikes" law (Pen. Code, §§ 667, subd. (e), 1170.12, subd. (c)(1)), as part of his stayed sentence under the " One Strike" law (Pen. Code, § 667.61).
We will affirm. In the unpublished portion of our opinion, we conclude there was no double jeopardy violation. In the published portion of the opinion, we hold that a prior serious felony enhancement must be applied to each term imposed under the Three Strikes law, whether for a second strike offense or a third strike offense.
I. FACTS AND PROCEDURAL HISTORY
A comprehensive summary of the underlying facts is set forth in our prior unpublished opinion in People v. Sasser (July 27, 2011, A127431 [2011 WL 3198786] ). We need not repeat the summary here, in light of the limited issues raised in this appeal. Instead, we focus on the jury's verdict, Sasser's initial sentence, our remand for resentencing, and Sasser's new sentence on remand.
A. Jury Verdict
In October 2009, a jury convicted Sasser of 11 sexual offenses perpetrated against Jane Doe 1 (JD1) on November 9, 2005, and Jane Doe 2 (JD2) on November 17, 2005. As to JD1, Sasser was found guilty of one count of oral copulation (§ 288a, subd. (c)(2)), one count of sodomy (§ 286, subd. (c)(2)), and three counts of forcible rape (§ 261, subd. (a)(2)). As to JD2, he was found guilty of two counts of oral copulation (§ 288a, subd. (c)(2)), two counts of sodomy (§ 286, subd. (c)(2)), and two counts of forcible rape (§ 261, subd. (a)(2)). Collectively, he sustained convictions for three counts of oral copulation (count 2 as to JD1, counts 10 & 15 as to JD2); three counts of sodomy (count 5 as to JD1, counts 11 & 17 as to JD2); and five counts of forcible rape (counts 6, 7, & 8 as to JD1, counts 13 & 16 as to JD2).
The jury also found true numerous allegations for sentencing purposes, including special circumstance allegations under Jessica's Law (§ 667.6,
subd. (d))— that certain offenses involved the same victim on separate occasions— as well as multiple victim special circumstance allegations for life sentences under the One Strike law (§ 667.61, subd. (c)).
In addition, Sasser admitted a prior conviction for a lewd act on a child (§ 288, subd. (a)), which constituted a predicate for life terms under the habitual sexual offender law (§ 667.71), constituted a strike under the Three Strikes law, and qualified as a serious felony prior for sentence enhancement purposes (§ 667, subd. (a)(1)). He also admitted a prior prison term for the violent felony ...