Filed 4/27/15 P. v. Drake CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN

THE PEOPLE,                                                          B252974

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA056044)
         v.

ERIC MICHAEL DRAKE,

         Defendant and Appellant.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
Eric P. Harmon, Judge. Affirmed as modified.


                   Jonathan E. Demson, under appointment by the Court of Appeal, for
Defendant and Appellant.


                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn
McGahey Webb and Esther P. Kim, Deputy Attorneys General, for Plaintiff and
Respondent.
                                   INTRODUCTION


       The trial court sentenced defendant and appellant Eric Michael Drake to six
consecutive 15-years-to-life terms after he was convicted of six counts of aggravated
sexual assault of a child. Defendant argues the court erroneously believed it was
mandated to impose consecutive sentences on his sexual assault convictions when in fact
it was authorized to exercise its discretion to impose concurrent or consecutive sentences.
Because the record clearly demonstrates the trial court would have exercised its
discretion to impose consecutive sentences, we conclude that even if there were error, it
was harmless.1 Accordingly, we affirm the judgment.


                         BACKGROUND AND DISCUSSION2


       After the victim, defendant’s daughter, turned 18 years old, she reported to the
police that from the time she was five years old, her father had, during several periods of
her childhood and adolescence, sodomized and raped her on a near-daily basis.
Defendant was convicted of, among other crimes, six counts of aggravated sexual assault
of a child under 14. (Pen. Code,3 § 269, subd. (a).) Each instance of aggravated sexual
assault occurred between 1998 and 2007.4 The trial court sentenced defendant to 101-



1
      After oral argument, defendant filed supplemental briefing addressing the issue of
harmless error.
2
       We do not recite in detail the facts of the underlying offenses because they are not
necessary to resolution of this appeal. (People v. Washington (2012) 210 Cal.App.4th
1042, 1045, fn. 2.)
3
       All further statutory references are to the Penal Code unless otherwise specified.
4
        At the time defendant committed the acts of forcible sodomy against his daughter,
section 269 mandated that any defendant who was found to have committed any of the
acts listed in subdivision (a) against a child who was under 14 years of age and 10 or

                                             2
years-to-life in state prison, which included six consecutive 15-years-to-life terms for the
aggravated sexual assault convictions.
   1. Defendant’s Consecutive Sentences
       In sentencing defendant, the trial court stated that it was required by section 667.6,
subdivision (d) to impose consecutive terms for his aggravated sexual assault convictions.
Section 667.6, subdivision (d) mandates that consecutive sentences be imposed on
convictions for certain sexual offenses, including forcible sodomy (§ 281, subds. (c), (d),
& (k)) and rape (§ 261, subd. (a)), if the crimes were committed against separate victims
or the same victim on separate occasions. (See § 667.6, subds. (d) & (e).) The statute
does not list violations of section 269 as crimes subject to its mandatory consecutive
sentencing provision. (See § 667.6, subd. (e).) Before its amendment in 2006, section
269 did not state that multiple offenses under its terms were required to be sentenced
consecutively under any circumstances. Since its amendment, section 269 expressly
requires the trial court to impose consecutive sentences for multiple offenses under its
terms “if the crimes involve separate victims or involve the same victim on separate
occasions as defined in subdivision (d) of Section 667.6.” (§ 269, subd. (c).) A violation
of section 269 is punished by a sentence of 15-years-to-life (see § 269, subd. (b)), and the
qualifying offenses under section 667.6’s mandatory sentencing provisions are punished
by determinate sentences. (See § 667.6, subd. (e) and offenses specified therein.)
       Defendant contends the trial court erroneously believed it was required to impose
consecutive sentences on his aggravated sexual assault convictions when in fact it was
authorized to exercise its discretion to impose concurrent or consecutive sentences under



more years younger than the defendant to be sentenced to a term of 15 years to life. (See
former § 269 [amended by Stats. 2006, ch. 337 (S.B. 1128), § 6].) In 2006, the statute
was amended to decrease the required age difference between perpetrator and victim
from ten years to seven years. (See § 269, subd. (a).) Section 269 was also amended to
expressly require the trial court to impose consecutive sentences for each offense that
results in a conviction under its terms “if the crimes involve separate victims or involve
the same victim on separate occasions as defined in subdivision (d) of Section 667.6.”
(§ 269, subd. (c).)

                                             3
section 669.5 He argues the Legislature did not intend to mandate consecutive sentences
for multiple aggravated sexual assault convictions until section 269 was amended.
Accordingly, he requests that we remand to allow the trial court to exercise its discretion
in sentencing him on his aggravated sexual assault convictions.
       The People contend the trial court did not err in imposing consecutive terms for
defendant’s aggravated sexual assault convictions. While acknowledging that neither
statute referenced the other prior to 2006, the People argue the trial court was
nevertheless required to impose consecutive terms for defendant’s convictions because,
in order to be convicted under section 269, defendant necessarily must have committed at
least one of the qualifying offenses listed in section 667.6, subdivision (e) (i.e., rape in
violation of section 261, subdivision (a), or sodomy in violation of section 286, among
other prohibited acts). (See § 667.6, subd. (e); see also People v. Jimenez (2000) 80
Cal.App.4th 286, 291 (Jimenez); People v. Figueroa (2008) 162 Cal.App.4th 95, 100
(Figueroa).) The People rely on Jimenez and Figueroa, both of which held that multiple
convictions for aggravated sexual assault that occurred prior to section 269’s amendment
in 2006 required imposition of consecutive terms under section 667.6, subdivision (d).
(Jimenez, supra, 80 Cal.App.4th at pp. 291-292; Figueroa, supra, 162 Cal.App.4th at p.
100.) Defendant contends both cases were wrongly decided.
       In Jimenez, the defendant was convicted of two counts of violating section 269,
subdivision (a)(3) (forcible sodomy), after he sexually assaulted a 12-year-old child on
numerous occasions in 1996. (Jimenez, supra, 80 Cal.App.4th at pp. 288-289.) The trial


5
        Section 669 provides in relevant part: “When a person is convicted of two or
more crimes, whether in the same proceeding or court or in different proceedings or
courts, and whether by judgment rendered by the same judge or by different judges, the
second or other subsequent judgment upon which sentence is ordered to be executed shall
direct whether the terms of imprisonment or any of them to which he or she is sentenced
shall run concurrently or consecutively. Life sentences, whether with or without the
possibility of parole, may be imposed to run consecutively with one another, with any
term imposed for applicable enhancements, or with any other term of imprisonment for a
felony conviction.” (§ 669, subd. (a).)


                                               4
court sentenced the defendant to two consecutive terms of 15-years-to-life for the sexual
assault convictions, indicating that it was required to do so under section 667.6. (Id. at p.
288.) On appeal, the defendant argued the trial court had discretion to impose concurrent
sentences because section 269 was not listed as a qualifying offense under section 667.6.
(Id. at p. 290.) Alternatively, he argued the two statutes operated exclusively because a
violation of section 269 is punished by an indeterminate sentence, and section 667.6, by
its terms, applied only to crimes falling within a determinate sentencing scheme. (Ibid.)
       The Fifth District rejected the defendant’s arguments. First, it held that section
269 fell within section 667.6, subdivision (d)’s mandatory consecutive sentencing
provision because, in order to be convicted under section 269, a defendant must be found
beyond a reasonable doubt to have committed at least one of the qualifying offenses
under section 667.6, subdivision (e). (Jimenez, supra, 80 Cal.App.4th at p. 291.)
Second, the court reasoned that it would be irrational to hold that section 667.6,
subdivision (d) did not apply to multiple convictions under section 269 because it could
result in more lenient sentencing for individuals convicted of sex crimes committed
against children by exempting them from the additional penalty of consecutive sentences.
(Id. at p. 292.)
       In Figueroa, the defendant was convicted of two counts of violating section 269,
subdivision (a)(1) (rape), for which the trial court imposed two consecutive terms of 15-
years-to-life. (Figueroa, supra, 162 Cal.App.4th at p. 97.) The defendant challenged the
sentence on several grounds: (1) section 669, rather than section 667.6, subdivision (d),
applied to his aggravated sexual assault convictions because violations of section 269 are
not expressly listed as qualifying offenses under section 667.6, subdivision (e); (2)
Jimenez was wrongly decided because section 269 establishes a separate and alternative
sentencing scheme centered around indeterminate sentences; and (3), the Legislature’s
amendment of section 269 demonstrates that multiple violations of the statute committed
before 2006 were not subject to mandatory consecutive sentencing. (Id. at pp. 98-100.)
       The Fourth District rejected the defendant’s arguments. First, the court looked to
People v. Glass (2004) 114 Cal.App.4th 1032 (Glass), which observed that the bill


                                              5
analysis for section 269 from the Assembly Committee on Public Safety in 1994
specifically acknowledged the applicability of section 667.6 to section 269 crimes.
(Figueroa, supra, 162 Cal.App.4th at p. 99; Glass, supra, 114 Cal.App.4th at p. 1037.)
That bill analysis states: “Under [section 269], as it might interact with . . . section 667.6,
a person convicted of six counts of child molestation, could receive a sentence of 90
years to life in prison, or to six consecutive life sentences.” (Glass, supra, 114
Cal.App.4th at p. 1037, fn. 10.) The court in Figueroa concluded that the quoted
language from section 269’s bill analysis foreclosed the defendant’s position because it
evinced the Legislature’s intent to have section 667.6, subdivision (d)’s mandatory
consecutive sentencing provision apply to convictions under section 269, rather than have
it serve as a separate and alternative sentencing scheme to section 269’s indeterminate
life-term scheme. (Figueroa, supra, 162 Cal.App.4th at p. 99.)
       The court also rejected the defendant’s argument that under section 669, the trial
court had discretion to impose concurrent or consecutive life terms. (Figueroa, supra,
162 Cal.App.4th at pp. 99-100.) It reasoned that because section 669 did not reference
section 269, and because section 669 could not apply to offenses qualifying under section
667.6, subdivision (d), which were the predicate offenses required to support a conviction
under section 269, section 669 did not apply to sentences under section 269. (Id. at p.
100.) Finally, the court rejected the defendant’s argument that the Legislature’s 2006
amendment of section 269 demonstrated that the Legislature did not intend for
convictions under that statute to trigger section 667.6, subdivision (d)’s mandatory
consecutive sentence provision. (Ibid.) Adopting the Fifth District’s reasoning in
Jimenez, the court held that convictions under section 269 for acts committed prior to the
statute’s 2006 amendment triggered section 667.6, subdivision (d)’s mandatory
consecutive sentencing provision. (Ibid.)
       Defendant urges us not to follow Jimenez and Figueroa. He argues it is not
irrational to conclude the Legislature intended for the pre-amended section 269 to serve
as a separate and alternative sentencing scheme to section 667.6, subdivision (d). He
contends that because section 269 provided for an increased and different type of


                                              6
punishment from those offenses qualifying under section 667.6, subdivision (d),6 the
Legislature intended to establish section 269 as a sentencing scheme separate and apart
from section 667.6, subdivision (d). He asserts section 269’s indeterminate term of 15-
years-to-life is likely to often result in a much harsher total sentence than one composed
of consecutive determinate terms under section 667.6, subdivision (d).
         We do not believe it is irrational to interpret enactment of section 269’s
indeterminate sentencing scheme, which exposes a defendant to an indeterminate life
sentence for just a single offense, as an indication of the Legislature’s intent to create a
sentencing scheme separate and apart from section 667.6, subdivision (d)’s mandatory
sentencing provision. In other words, because section 269 provides for its own enhanced
sentence, the Legislature may have intended section 269 to operate apart from section
667.6, subdivision (d). Accordingly, we acknowledge that defendant, in arguing that the
Legislature originally intended to establish section 269 as a sentencing scheme separate
from and alternative to section 667.6, subdivision (d), and the People, in arguing that
section 269 has always fallen within section 667.6, subdivision (d)’s mandatory
sentencing provision based on legislative history and Jimenez and Figueroa, both pose
reasonable arguments supporting their respective interpretations of sections 269 and
667.6.
         Generally, when criminal statutory language gives rise to two or more reasonable
interpretations, the ambiguity should be resolved in the defendant’s favor. (See People
ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312-313, citing People v. Ralph
(1944) 24 Cal.2d 575, 581.) We do not need to resolve this ambiguity. Assuming the
interpretation most favorable to defendant applies, and, accordingly, the court had
discretion to impose concurrent sentences for defendant’s section 269 convictions, on the
record here, remand is unnecessary.



6
      For example, an indeterminate term of 15-years-to-life under section 269 versus
maximum determinate terms of 13 years under section 261, subdivision (a)(2) (rape) and
14 years under section 286, subdivision (d)(2) (sodomy).

                                               7
       Although a case is typically remanded where the trial court erroneously interprets
its scope of discretion in imposing sentence, remand is not necessary “where doing so
would be an idle act that exalts form over substance because it is not reasonably probable
the court would impose a different sentence.” (People v. Coelho (2001) 89 Cal.App.4th
861, 889 (Coelho).) Because the court made its sentencing intentions extremely clear, it
is not reasonably probable it would exercise its discretion to impose a different sentence.
(Ibid.; People v. Gutierrez (1996) 46 Cal.App.4th 804, 816-817; see also People v.
Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Thus, remand is not necessary here.
(Coelho, supra, 89 Cal.App.4th at p. 889.)
       The trial court heard and considered the victim’s moving impact statement, during
which she recounted the damage defendant’s conduct caused in her life and the progress
she has made since reporting defendant’s conduct to the police. The victim stated: “No
one expects to be hurt by someone who’s supposed to love and protect them, but for
years there was. Because of my past I found it very hard to make trustful, meaningful
relationships. I avoid relationships with men for fear that they’ll hurt me, and I’m always
suspicious of men around my daughters. [¶] Before the crime began, I was an outgoing
normal little girl. I enjoyed reading and writing short stories. I aspired to become a
model like my mother. I wanted to get married and have 7 to 15 children, and I liked to
force my little brother into playing Barbies with me. [¶] . . . Since the crime, I’ve had to
battle alcoholism, intimacy issues, depression, post-traumatic stress disorder, anxiety
problems and chronic nightmares. [¶] . . . My life has been difficult, and I know it won’t
get easier. . . . [¶] . . . I randomly have panic attacks if I see men who look[ ] like my
father, sound[ ] like my father or even if I smelled Chapstick he constantly used. . . . [¶]
. . . These problems and more plague me every day . . . .”
       After the victim spoke, the court commented on the reprehensible nature of
defendant’s conduct and the effect that conduct had on his daughter. Specifically, the
court stated: “I’ve sat in a court room for a long time, a long time, looking, listening,
understanding the way people move and act and what they do in life, and I’ve never, even
with the serial killers that I’ve seen, even with the people who have murdered children,


                                               8
people who I’ve sent to death row as a D.A., the people who have come before me, I’ve
never seen anybody quite like you in the degree of viciousness and callousness, and I
mean that honestly. . . . [¶] You have a beautiful daughter who is well adjusted and
fantastic by all accounts. That probably should be the greatest thing in your life going
forward that you can know that you have not totally destroyed her life. [¶] She’s
resilient, and she is going to lead a happy, happy life despite what you’ve done to her.
With respect to your viciousness and your callousness, that’s between you and yourself,
and in everything I’ve seen, you’re not getting it, and maybe the time that you get in
prison, 90 years to life, will help you get closer to an understanding.” The court
continued, “[A]nd you perpetrated crimes of horrible, almost unspeakable violence
against [your daughter] when you were the person that was trusted by everyone,
including her, to keep her safe as her father . . . . [¶] And not only did you not keep her
safe from other harm, you perpetrated enormous violence on her of a horrific fashion
. . . .”
           It is evident, and was appropriate, that the court considered the victim’s statement
when it addressed defendant. The court’s comments make it abundantly clear that, upon
remand, the court would impose consecutive sentences on defendant’s convictions under
section 269. Such a sentence would reflect more than simply the mechanical application
of a statute, but an individualized consideration of the victim’s suffering and the horrific
nature of defendant’s crimes.
     2. Presentencing Custody Credits
           Defendant also contends, and the People correctly concede, the trial court awarded
insufficient custody credits. Defendant was arrested on May 4, 2012, and sentenced on
November 19, 2013. The trial court awarded defendant 648 days of custody credit,
consisting in part of 564 days of actual custody credit. However, there are 565 days
between, and including, the dates on which defendant was arrested and sentenced.
Accordingly, the trial court should have awarded defendant one extra day of actual
custody credit, for a total of 649 days. (See People v. Browning (1991) 233 Cal.App.3d
1410, 1412 [the defendant is entitled to a day of actual custody credit for the day on


                                                 9
which he is sentenced].)7 We direct the trial court to modify its November 19, 2013 order
and correct defendant’s abstract of judgment to reflect the proper amount of credits, 649
days.
                                      DISPOSITION
        The judgment is affirmed as modified. The trial court is directed to modify its
November 19, 2013 order and correct defendant’s abstract of judgment to reflect that he
was awarded 649 days of presentence custody and conduct credits. The trial court is
requested to forward corrected certified copies of defendant’s abstract of judgment to the
Department of Corrections and Rehabilitation.




                                                                      IWASAKI, J.*


We concur:




              PERLUSS, P. J.                                          ZELON, J.




7
       Fifteen percent of 565 days is 84 days, rounding down. Eighty-four days plus 565
days is 649 days. (See § 2933.1, subd. (a); see also People v. Ramos (1996) 50
Cal.App.4th 810 [trial court may not round conduct credits up to a number that would fall
between 15 and 16 percent of the number of days served in presentence custody].)

*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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