P. v. Larez

Filed 2/4/09 P. v. Larez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge.

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Santiago Larez of sodomy of a person under age 16 by a person over age 21 (Pen. Code, 286, subd. (b)(2)^[1]; count 1), committing a lewd and lascivious act against a child age 14 or 15 by a person at least 10 years older ( 288, subd. (c)(1); count 2) and continuous sexual abuse of a child ( 288.5; count 3). The court imposed a prison term of 19 years, consisting the 16-year upper term on count 3 and the three-year upper term on count 1. The court imposed a concurrent three-year upper term on count 2.

On appeal, appellant contends (1) the imposition of the upper terms and the consecutive sentences violated his rights under the Fifth, Sixth and, Fourteenth Amendments to the United States Constitution, and (2) the imposition of the upper terms violated the federal and California constitutional prohibitions of ex post facto laws. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts

One night in November 2006, appellant entered his 15-year old sons bedroom while the boy was sleeping, awakened the boy by getting on top of him, and sodomized him. Appellant also sodomized his son on another occasion when the boy was in the fifth or sixth grade, and when the victim was a sophomore in high school, appellant began sodomizing him on a weekly basis. During the victims elementary school and junior high school years, appellant forced him to orally copulate appellant more than 20 times. When the victim was small, appellant had him place his penis in appellants anus, and appellant molested the victim the same way on one occasion when the boy was a freshman in high school.

Sentencing

In sentencing appellant the court stated: The Court imposed the upper term because under California [Rules of Court,] [r]ule 4.421, the victim was particularly vulnerable. The defendant took advantage of a position of trust or confidence. The defendant shows no remorse. The defendant has engaged in violent conduct that indicates a serious danger to society. The defendant committed similar uncharged conduct in the past.

The court also stated: The Court imposes the consecutive sentence in accord [with] Penal Code section 667.6[,] [subdivision (c)]. And, also, because of the separate nature of the offense.

DISCUSSION

Imposition of Upper Terms

Appellant first argues that the imposition of upper term sentences on counts 1 and 3 based on facts found by the sentencing court but not by a jury violated his federal constitutional rights under the principles set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 295 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We disagree. As we explain below, we find no Sixth Amendment or other federal constitutional error in the courts selection of the upper terms.

In Apprendi, the United States Supreme Court held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) The high court reaffirmed this rule in Blakely and again in Cunningham.

Cunningham, in addition, held that the version of Californias determinate sentencing law (DSL) then in effect violated a defendants Sixth Amendment right to a jury trial because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt .... (Cunningham, supra, 549 U.S. at p. 288 [127 S.Ct. 868].) The high court also concluded that the middle term prescribed in the former DSL, not the upper term, was the relevant statutory maximum for Apprendi purposes.

In response to Cunningham,the Legislature amended the former DSL by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, 2, pp. 4-6; see also People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2.) The amended DSL remedied the constitutional infirmities in the former DSL by eliminating the middle term as the presumptive term and by allowing the trial court to exercise broad discretion in selecting the lower, middle or upper term based on reasons stated on the record. As amended, section 1170 now provides: When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected .... ( 1170, subd. (b)

( 1170(b)).)

These amendments were suggested by the Cunningham court itself as a means of remedying the constitutional infirmities in the DSL. As the Cunningham court observed, a system which permits judges to exercise broad discretion within a statutory range encounters no Sixth Amendment shoal. (Cunningham, supra, 549 U.S. at p. 294 [127 S. Ct. 871].) Or as the Third District Court of Appeal recently put it, the Cunningham court suggested that California could comply with the [Sixth Amendment] jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)

In the instant case, the court sentenced appellant in April 2008, more than one year after the effective date of the DSL amendments discussed above. The court did not mention the 2007 Cunningham-inspired reform of the DSL when it pronounced sentence, but we presume it was aware of, and applied, the appropriate decisional and statutory law. (People v. Coddington (2000) 23 Cal.4th 529, 644, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Accordingly, we conclude that the court exercised the broad discretion it had under section 1170(b), as amended effective March 30, 2007, in selecting the upper terms, and, as indicated above, the court stated on the record its reasons for doing so. Thus, appellant was sentenced in accordance with the requirements of section 1170(b), as amended, and therefore his upper term sentences did not violate his right to jury trial or proof beyond a reasonable doubt under Apprendi, Blakely, and Cunningham.

Appellant also argues that the imposition of sentence under the 2007 amendment to the DSL violated the state and federal constitutional prohibitions against ex post facto laws, presumably because the instant offenses were committed prior to the effective date of the amendment. We disagree.

In People v. Sandoval, supra, 41 Cal.4th at pp. 853-857, our Supreme Court held that imposition of sentence under the 2007 amendment to the DSL for a crime committed prior to the effective date of that amendment did not violate federal constitutional due process and ex post facto principles. The same result obtains under the California Constitution. (People v. McVickers (1992) 4 Cal.4th 81, 84 [ex post facto clauses of California and U.S. Constitutions are to be analyzed identically].) Accordingly, we reject appellants ex post facto claim.^[2]

Imposition of Consecutive Sentences

Appellant argues, in summary fashion, that the imposition of consecutive sentences on counts 1 and 3 also violated the rules set forth in Apprendi, Blakely, and Cunningham. There is no merit to this contention. As appellant acknowledges, our Supreme Court has held that there is no right to a jury trial on facts used to justify consecutive sentences. (People v. Black (2007) 41 Cal.4th 799, 820-823.)^[3]And after briefing was completed in the instant case, the United States Supreme Court reached the same conclusion. (Oregon v. Ice (2009) __ U.S. __ [129 S.Ct. 711].)

DISPOSITION

The judgment is affirmed.

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^*Before Cornell, Acting P.J., Hill, J., and Kane, J.

^[1] All further statutory references are to the Penal Code.

^[2] Appellant argues that Sandoval was wrongly decided. He recognizes that this court is bound by Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but raises this claim to preserve it for federal review.

^[3] As with his challenge to the upper terms, appellant makes this argument to persevere it for federal review.