People v. Preciado

Opinion

BROWN (Gerald), P. J.

Antonio Preciado pleaded guilty to three counts of rape (Pen. Code, § 261, subd. 2) enhanced for using a knife (Pen. Code, § 12022.3, subd. (a)), two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)), and attempted rape (Pen. Code, §§ 664, 261). Criminal proceedings were adjourned to determine whether Preciado was a mentally disordered sex offender (MDSO) under Welfare and Institutions Code section 6300 et seq. The court found Preciado was an MDSO who could benefit from treatment in a state hospital, but returned him to the criminal court for sentencing because of the violence of his crimes and the lengthy minimum prison sentence he would be required to serve. The court sentenced Preciado to 33 years in prison. Preciado appeals.

Preciado unmeritoriously contends the court abused its discretion under Welfare and Institutions Code section 6316 by not sending him to a state hospital. Even though the court determined Preciado was an MDSO who could benefit from treatment, he had no “right” to

[412]

treatment in a state hospital, and the court could properly return him to the criminal court for sentencing

(People

v.

Oglesby

(1977) 67 Cal.App.3d 34, 38 [135 Cal.Rptr. 640]). The court could reasonably find hospital commitment would be futile because Preciado would still have to serve a lengthy prison term after receiving treatment.” Moreover, treatment would be available within the more secure state prison system. The court did not abuse its discretion in returning Preciado to the criminal court for sentencing.

As required by Penal Code section 667.6, subdivision (d), the court sentenced Preciado to a full, separate, and consecutive prison term for each rape. Preciado contends imposing mandatory consecutive sentences on him violates the constitutional prohibition against cruel and unusual punishment because a trial judge would have discretion to sentence a person convicted of multiple murders, a more serious offense than rape, to consecutive or concurrent terms. Punishment is not cruel and unusual, however, merely because the Legislature may have chosen to impose lesser punishment for another crime. “[Ljeniency as to one charge does not transform a reasonable punishment into one that is cruel and unusual.”