Hetherington

This is a sentencing appeal.

Sixty-seven-year-old Thomas Max Hetherington and his wife ran a licensed day care center where for almost three years he molested many children. An information charged Hetherington with 82 sex offenses. In a written plea bargain containing a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754, 757-759 [ 159 Cal.Rptr. 696 , 602 P.2d 396 ]), Hetherington pleaded guilty to five counts of Penal Code section 288, subdivision (a) (counts 16, 38, 42, 70 and 81) and three counts of section 288a, subdivision (c) (counts 77, 79 and 82). He was sentenced to a total term of 21 years, 4 months: an aggravated principal term of 8 years on count 77 (§ 288a, subd. (c)) and 13 years, 4 months representing the total consecutive subordinate midterms for the balance of the crimes. In extending the total subordinate term beyond five years the court treated section 288, subdivision (a) as a “violent felony” under section 667.5, subdivision (c)(6). Hetherington challenges that treatment, as well as the court’s sentence choice reasons and refusal to apply the now repealed mentally disordered sex offender statutes. We affirm the judgment and remand for resentencing…