Graves

Certified for Partial Publication.

A jury convicted defendant Peter Dale Graves of a number of sexual offenses involving a child, including, in count one, a violation of Penal Code section 288, subdivision (a). [1] He was sentenced to state prison for an aggregate term of 70 years 4 months to life.

The sentence for count one was enhanced to 25 years to life, pursuant to section 667.61, subdivisions (a) and (d)(1), by reason of a prior conviction of section 288, subdivision (a). The sentence was enhanced again—doubled to 50 years to life—under the second strike provisions of section 667, subdivision (e)(1), by reason of the same prior conviction.

In the published portion of the opinion we conclude the cumulative application of the section 667 enhancement violates the explicit provisions of subdivision (f) of section 667.61. [2] It provides the penalty imposed under section 667.61 is in lieu of "the punishment authorized under any other law, unless another law provides for a greater penalty." Section 667, subdivision (e)(1), is such another law, but it does not provide a greater penalty. [3]

Accordingly, we shall strike the double punishment imposed under section 667…