People v. Clark

Opinion

ANDERSON, P. J.

Defendant Wesley William Clark (appellant) was charged in a complaint with continuous sexual abuse of a child under the age of 14 years (Pen. Code,

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§ 288.5), commission of a forcible lewd act upon a child under the age of 14 years (§ 288, subd. (b)), and oral copulation of a child under the age of 14 years and more than 10 years younger than appellant (§ 288a, subd. (c)). The complaint also alleged several special

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allegations and that appellant had two serious prior felony convictions within the meaning of section 667, subdivision (a).

Pursuant to a negotiated disposition appellant pled no contest to the continuous sexual abuse and oral copulation charges. The other charges and allegations were dismissed. A condition of the plea was that any sentence imposed for the oral copulation would run concurrent to the sentence for the continuous abuse. The superior court sentenced appellant to state prison for the upper term of 16 years for the continuous abuse. A concurrent sentence was imposed for the other offense.

Appellant contends: “The trial court stated invalid reasons for imposing the upper term.” This contention lacks merit.

At the sentencing hearing probation was denied because appellant was an active rather than passive participant and his performance on probation or parole was not satisfactory.

With regard to the term, the superior court commented that “it is very difficult to find any circumstances in mitigation that fit this gentleman’s case.” Nevertheless, defense counsel had set forth several factors which “lead the court to believe that there is some positive in [appellant’s] life. . . .” The factors were appellant’s “good bond” with his wife, his activities on behalf of the Salvation Army and his early plea of no contest.

However, these factors were “greatly” outweighed by those mandating an aggravated term. Appellant “was in a position of trust or confidence, specifically trust with the youngsters involved here ages seven and nine, and that . . . position of trust was indeed taken advantage of.” Appellant’s prior convictions were numerous and of increasing seriousness. He progressed from traffic offenses to burglary, to arson and then to the instant sex crimes.