Consecutive, Not Concurrent Sentences, Upheld in Sex Case

A San Joaquin County jury convicted Kesh Maharaj of multiple counts of lewd and lascivious conduct involving the same girl, who was under age 14.  One count involved forcible lewd and lascivious conduct (Penal Code § 288 (b)) and three counts involved aggravated sexual assault (Penal Code § 269).  In nine counts, he was convicted of lewd and lascivious touching. (Penal Code § 288 (a)).

The judge sentenced Maharaj to a determinate term of 33 years and four months, plus an indeterminate term of 45 years to life.
The Point of This Article:  Consecutive, not concurrent sentences, is often a choice for the sentencing judge.  If consecutive sentences are imposed, the judge is supposed to state his reasoning for such sentencing.  In sex cases in general, consecutive sentences are common.
Generally speaking, Penal Code § 667.6(a) allows the court to exercise its discretion in choosing between concurrent and consecutive sentencing.  In this sex offense case, the trial court judge considered the evidence presented and stated on the record at sentencing that each of three counts of violating Penal Code § 269 were separate incidents. Consequently, as to each count, the judge imposed a full consecutive, not concurrent, term of fifteen years to life.  This meant 45 years to life for these three counts alone.  Defendant did not object to this at the trial court level.

Defendant then appealed the consecutive sentences, arguing that the trial court judge failed to state on the record why he was imposing consecutive, rather than concurrent, sentences.  In People v. Kesh Maharaj (2012 DJDAR 3837), the Third Appellate District examined the trial court record and found that defense counsel forfeited his right to challenge the consecutive sentences by failing to object in a timely manner.  Therefore, the appellate court found the appeal was not cognizable for lack of objection at sentencing.

Our office, in reading this opinion, notes that courts will often review the issue regardless, but in this case the underlying offense was a sex offense against a vulnerable victim, which could have influenced how the appellate court handled this issue.

Alternatively, defendant argued that the trial court erred in sentencing him to a consecutive term for violating Penal Code § 288(b) (lewd and lascivious touching) for conduct that occurred with the same victim at the same time as his conviction for violating Penal Code § 269 (aggravated sexual assault on a child under the age of 14 years).  In other words, defendant was arguing he was being sentenced twice, and thus to unfairly longer term, for a single event. 

The Third Appellate District disagreed, citing the text of Penal Code § 667.6(d), which mandates that a trial court impose a “full, separate and consecutive term for each violation of an offense specified in subdivision (e) if the crimes involve… the same victim on separate occasions.”  The court commented that this sentencing scheme applies only when a defendant stands convicted of more than one offense specified in subdivision (e).

Looking to subdivision (e), the court noted that (e) included forcible lewd and lascivious acts upon a child under the age of 14, as well as lewd and lascivious touching. Therefore, consecutive terms were mandated and the trial court did not make a mistake because defendant was convicted of each offense on separate occasions.  More fundamentally, the appellate court found a statutory ground to uphold the sentencing without even addressing the argument that defendant made concerning the same event.

For more information about sentencing in sex offenses, click on the following articles:
  1. What Is Meeting a Child for Lewd Purposes (Penal Code § 288.4)?
  2. Does a Sex Crime Defendant Have the Right to Present Evidence of Alleged Victim’s Prior False Sexual Assault Claims?
  3. Thirty Years to Life Sentence for Juvenile Sex Crime Defendant Not Cruel and Unusual Punishment
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