Cervantes

Here we hold that the "One Strike" law (Pen.Code, § 667.61) [1] and the "Three Strikes" law (§§ 667, subds.(b)-(i) & 1170.12, subds. (a)-(d)) [2] are cumulative sentencing schemes. We also hold that the trial court may not use the same prior conviction to both qualify a defendant for a 25-years-to-life sentence under section 667.61 and as a strike under the Three Strikes law. A different prior serious felony conviction must be used as a second strike, which doubles the sentence for the present conviction. (§ 667, subd. (e)(1).) In addition, five years must be added for the prior serious felony conviction. ( Id. at subd. (a).) We modify the defendant's sentence from 50 years to life to 55 years to life. In all other respects we affirm.

A jury found Jose Luis Cervantes guilty of one count of sexual penetration by a foreign object. (§ 289, subd. (a)(1).) The trial court found that Cervantes had two prior serious or violent felony convictions within the meaning of the Three Strikes law. (§ 667, subds.(b)-(i).) One felony conviction was for rape in concert. (§ 264.1.) The trial court found that Cervantes had one prior serious felony conviction within the meaning of…