People v. Sewell

Opinion

EVANS, Acting P. J.

Pursuant to a plea bargain, defendant pled guilty to rape, sodomy, genital and anal penetration by foreign object, assault by means of force likely to produce great bodily injury, and burglary (Pen. Code, §§ 261, subd. (2), 286, subd. (c), 289, subd. (a), 245, subd. (a)(1), and 459, respectively); as a part of the bargain, an oral copulation charge was dismissed and the People agreed not to allege any enhancements based on defendant’s prior prison terms or prior serious felony convictions.

Defendant was sentenced to the maximum term envisioned in the plea bargain, twenty-eight years; it was comprised of the upper term of four years for the assault, designated as the principal term, and upper terms of eight years each for the rape, the sodomy and the penetration with a foreign object, to run fully and consecutively to one another and to the principal term. The four-year midterm sentence for the burglary was stayed pursuant to Penal Code section 654.

1

On appeal, defendant asserts (1) section 654 precludes the execution of sentence for the assault and the foreign object penetration, (2) the trial court committed Belmontes

2

error, and (3) section 1191.1, governing victim impact statements at sentencing, is unconstitutional. We affirm the judgment. Facts relevant to each of defendant’s contentions will be set forth in the discussion.

3

I, II

*

[1449]

III

Relying on the reasoning in

Booth

v.

Maryland

(1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529], defendant contends the compelled consideration of a victim’s impact statement under section 1191.1 violates the Eighth Amendment to the United States Constitution.