Howell

I respectfully dissent.

I disagree with the majority’s explanation of the terms of Penal Code section 667.6, subdivision (c), and find the explanation neither simple nor reasonable.

*832 Section 667.6, subdivision (c), is not mandatory, but is discretionary. (People v. Belmontes (1983) 34 Cal.3d 335, 345 [ 193 Cal.Rptr. 882 , 667 P.2d 686 ].) In light of the other subdivisions of the section, (a), (b) and (d), which are mandatory and punish only those persons who have committed one of the enumerated sex crimes more than once, subdivision (c) is ambiguous as to whether it applies to multiple sex offenses or only a single sex offense coupled with a nonsex offense.

When interpreting a particular subdivision of a statute, one must look at the statute as a whole to try to glean from it the true legislative intent. (People v. Moroney (1944) 24 Cal.2d 638, 642 [ 150 P.2d 888 ].)

When subdivision (c) is read in combination with subdivision (d), the phrase in subdivision (c) “whether or not the crimes were committed during a single transaction” takes on a special meaning. Subdivision (d) requires a harsher sentencing if there were separate victims or the same victim on separate…

After having pleaded guilty to a violation of Penal Code 2 section 288a, subdivision (c), forcible oral copulation, and to a violation of section 211, robbery, with the admission that he personally used a deadly weapon—a knife—in violation of section 12022, subdivision (b), as to both offenses, 3 the 17-year-old defendant, Delbert Wayne Howell, Jr., was referred to the California Youth Authority for a diagnostic study. (Welf. & Inst. Code, § 707.2.) Upon return, the defendant made an oral request that the court adjourn the proceedings and determine whether he was a mentally disordered sex offender (MDSO) within the meaning of section 6302 of the Welfare and Institutions Code. The court denied the motion and sentenced *827 defendant to prison for the upper term for count IV, the robbery, five years, plus a one-year enhancement for the use of a knife. The court then sentenced Howell to the upper term for count III, the oral copulation, eight years, plus a one-year enhancement for the use of a knife. The court ordered count III to run consecutive to count IV for a total of 15 years.

On appeal he contends that the court should have initiated MDSO proceedings, and asserts…

[Opinion certified for partial publication. [1] ]

OPINION

ANDREEN, J.

After having pleaded guilty to a violation of Penal Code [2] section 288a, subdivision (c), forcible oral copulation, and to a violation of section 211, robbery, with the admission that he personally used a deadly weapon — a knife — in violation of section 12022, subdivision (b), as to both offenses, [3] the 17-year-old defendant, Delbert Wayne Howell, Jr., was referred to the California Youth Authority for a diagnostic study. (Welf. & Inst. Code, § 707.2.) Upon return, the defendant made an oral request that the court adjourn the proceedings and determine whether he was a mentally disordered sex offender (MDSO) within the meaning of section 6302 of the Welfare and Institutions Code. The court denied the motion and sentenced defendant to prison for the upper term for count IV, the robbery, five years, plus a one-year enhancement for the use of a knife. The court then sentenced Howell to the upper term for count III, the oral copulation, eight years, plus a one-year enhancement for the use of a knife. The court ordered count III to run consecutive to count IV for a total of 15 years.

On appeal he contends…