Filed: Nov. 08, 2017
Latest Update: Nov. 08, 2017
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. OPINION THE COURT * Defendant Robert Lewis Hoke contends on appeal his sentence was unauthorized because the trial court combined the determinate and
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. OPINION THE COURT * Defendant Robert Lewis Hoke contends on appeal his sentence was unauthorized because the trial court combined the determinate and ..
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT*
Defendant Robert Lewis Hoke contends on appeal his sentence was unauthorized because the trial court combined the determinate and indeterminate terms, and orally pronounced an improper minimum parole eligibility period. The People concede and we agree.
BACKGROUND
On June 2, 2016, a jury found defendant guilty of sexual penetration of a child under 10 years of age (Pen. Code, § 288.7, subd. (b))1 and three counts of lewd acts by force (§ 288, subd. (b)(1)).
On August 15, 2016, the trial court sentenced defendant to 45 years to life in prison: 15 years to life on count 1, plus 10 years on each of the three remaining counts. At the sentencing hearing, the court stated:
"[Defendant], you'll be committed to the California Department of Corrections on Count 1, violation of Penal Code section 288.7 for the term prescribed for by law, to wit, life with a minimum parole of eligibility of 15 years. [¶] On Counts 2, 3 and 4, violations of section[] 288 [, subdivision] (b), because the factors in aggravation are numerous because of the danger to society, the Court finds that the upper term of ten years on each count is appropriate, and pursuant to law they will run full term consecutive. [¶] Minimum parole eligibility will be 45 years. You're entitled to presentence credits of 1,018 actual, 152 conduct, for a total of 1,170 days."
On August 15, 2016, defendant filed a notice of appeal.
DISCUSSION
The parties agree section 669 provides that a determinate term of imprisonment must be served first when it is ordered to run consecutively to an indeterminate term. (§ 669, subd. (a).) Thus, defendant must first serve the 30-year determinate term before his indeterminate sentence of 15 years to life begins. The 30-year determinate term will be reduced by presentence credits, and the service of that determinate term will not be credited toward the minimum term defendant must serve before becoming eligible for parole (15 years) on the 15-year-to-life indeterminate term. Thus, the trial court's oral pronouncement of a 45-year minimum parole eligibility period was incorrect. Defendant's sentence is a 30-year determinate term, reduced by credits, followed by a 15-year-to-life indeterminate term with a 15-year parole eligibility period that starts with service of that indeterminate term. The abstract of judgment properly reflects the sentence, but the oral pronouncement must be corrected.
DISPOSITION
The matter is remanded with directions to correct the trial court's oral pronouncement of sentence to eliminate reference to a 45-year minimum parole eligibility period, and to clarify that defendant's sentence consists of a 30-year determinate term, reduced by applicable credits, followed by a 15-year-to-life indeterminate term with a 15-year minimum parole eligibility period. As so modified, the judgment is affirmed.
