California Court of Appeal Feb 10, 2015 No. D066978Unpublished
Filed 2/10/15 P. v. Dominguez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066978
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1201430)
ADAN SANDOVAL DOMINGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Eric G.
Helgesen, Judge. Affirmed as modified; remanded with directions for resentencing.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.
Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Adan Sandoval Dominguez of four counts of committing a lewd
act on a child with force, violence, or duress (Pen. Code,1 § 288, subd. (b)(1); counts 2,
4, 6, 7); one count of aggravated sexual assault of a child (oral copulation) (§ 269,
subd. (a)(4); count 1); one count of aggravated sexual assault of a child (penetration)
(§ 269, subd. (a)(5); count 3); and committing a lewd act on a child (§ 288, subd. (a);
this standard, under the circumstances of this case, we conclude a reasonable trier of fact
could have decided that the two acts of molestation against Nancy occurred on separate
occasions. The court did not err.
V
DOMINGUEZ'S SENTENCE UNDER COUNT 5
Dominguez argues that his indeterminate sentence on count 5 under former section
667.61 must be reversed because the trial court imposed this sentence without the jury
finding beyond a reasonable doubt whether he was eligible for probation under former
section 1203.066. Dominguez argues that this sentence is unconstitutional because it
violates his Sixth Amendment right to a jury trial under Apprendi v. New Jersey (2000)
530 U.S. 466 (Apprendi) and its progeny, such as Alleyne v. United States (2013)
___ U.S. ___ [133 S.Ct. 2151] (Alleyne) and Blakely v. Washington (2004) 542 U.S. 296
(Blakely).
Section 667.61 "sets forth an alternative and harsher sentencing scheme for certain
enumerated sex crimes . . . ." (People v. Mancebo (2002) 27 Cal.4th 735, 741; People v.
Rodriguez (2012) 207 Cal.App.4th 204, 211.) The statute provides, among other things,
for mandatory sentences of 15-years-to-life sentences for defendants convicted of one of
the sex offenses enumerated in section 667.61, subdivision (c), and under one of the
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circumstances listed in section 667.61, subdivision (e).2 (Former § 667.61, subd. (b); see
People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1261 ["section 667.61—otherwise
known as the one strike law . . . provides for indeterminate terms of either 15 years to life
or 25 years to life for section 288, subdivision (a) and certain other sex offense if certain
circumstances apply, regardless of whether the defendant has prior convictions"; italics
omitted]; People v. Palmer (2001) 86 Cal.App.4th 440, 443 ["California's 'One Strike'
law requires a sentence of 15 years to life for a person convicted of certain enumerated
sexual offenses under particular aggravating circumstances"].) "Conviction of an
enumerated offense alone does not trigger the One Strike law. The People also must
plead and prove at least one aggravating circumstance specified in section 667.61,
subdivision (d) or (e)." (People v. Wutzke (2002) 28 Cal.4th 923, 930.)
2 Former section 667.61 provided, in relevant part: "(a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j). [¶] (b) Except as provided in subdivision (a), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j). [¶] (c) This section shall apply to any of the following offenses: [¶] . . . [¶] (7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066. [¶] . . . [¶] (e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim. [¶] . . . [¶] (h) Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section for any offense specified in paragraphs (1) to (6), inclusive, of subdivision (c)." The Legislature has amended section 667.61 to delete the provision allowing probation if the court makes these findings under section 1203.066. (Stats. 2006, ch. 337, § 33, p. 2639.) 26
The jury found Dominguez guilty of committing a lewd act on a child (§ 288,
subd. (a)) in count 5, a sex offense listed in section 667.61, subdivision (c), against
multiple victims, a qualifying circumstance listed in section 667.61, subdivision (e).
(Former § 667.61, subd. (e)(5).) Under the applicable version of the statute, Dominguez's
violation of section 288, subdivision (a), subjected him to an indeterminate life term,
"unless [he] qualifie[d] for probation under subdivision (c) of Section 1203.066."
(Former § 667.61, subd. (c)(7).) Former section 1203.066, subdivision (c), provided the
possibility of an exemption from probation ineligibility for violations of section 288,
subdivision (a), where the court makes a series of findings regarding the defendant's
relationship to the victim, the victim's best interests, and the possibility of the defendant's
rehabilitation. (Former § 1203.066, subds. (a)(7), (c).)3 Nevertheless, "probation is not
required where favorable findings under section 1203.066[, subdivision] (c) are made.
3 Former section 1203.066 provided, in relevant part: "(a) Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons: [¶] . . . [¶] (7) A person who is convicted of committing a violation of Section 288 or 288.5 against more than one victim. [¶] . . . [¶] (c) Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings: (1) The defendant is the victim's natural parent, adoptive parent, stepparent, relative, or is a member of the victim's household who has lived in the victim's household. [¶] (2) A grant of probation to the defendant is in the best interest of the child. [¶] (3) Rehabilitation of the defendant is feasible . . . . [¶] (4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. . . . [¶] (5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so. The court shall state its reasons on the record for whatever sentence it imposes on the defendant." 27
The sentencing court 'retains the discretion' to find the defendant unsuitable for probation
and to order imprisonment." (People v. Wutzke, supra, 28 Cal.4th at p. 932, fn. 7, citing
former § 1203.066, subd. (c)(5).)
In Apprendi, supra, 530 U.S. 466, the United States Supreme Court held that
"[o]ther 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." (Id. at p. 490; see Blakely, supra, 542 U.S. at pp. 303-304
[because the " 'statutory maximum' for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant," (italics omitted), a judgment may not "inflict[ ] punishment that the
jury's verdict alone does not allow"]; People v. Chism (2014) 58 Cal.4th 1266, 1335.)
In Alleyne, supra, 133 S.Ct. 2151, the United States Supreme Court extended "the
logic of Apprendi" to mandatory minimum sentences. (Id. at pp. 2157, 2160.) The
Supreme Court, overruling Harris v. United States (2002) 536 U.S. 545, held that "any
fact that increases the mandatory minimum is an 'element' that must be submitted to the
jury." (Alleyne, supra, at p. 2155.) Thus, any fact (other than a prior conviction) that
increases the penalty beyond a statutory maximum or that increases a statutorily
prescribed minimum penalty must be proved to a jury beyond a reasonable doubt. (See
People v. Blakely (2014) 225 Cal.App.4th 1042, 1060; People v. Osuna (2014) 225
Cal.App.4th 1020, 1039.) The Supreme Court cautioned, however, that its decision "does
not mean that any fact that influences judicial discretion must be found by a jury," and
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that "broad sentencing discretion, informed by judicial factfinding, does not violate the
Sixth Amendment." (Alleyne, supra, at p. 2163.)
Dominguez argues that in this case "the jury made no findings as to [his]
probation-eligibility before the court sentenced him to indeterminate 15 year to life
sentence on Count 5," and that "[t]his omission was federal constitutional error under
Apprendi . . . and its progeny." Dominguez argues that Apprendi applies because, "as a
result of the court's apparent finding that [he] was not eligible for probation pursuant
to . . . section 1203.033 [sic], subdivision (c), [he] went from punishment on Count 5 with
a determinate sentence to punishment under the alternate One Strike sentencing scheme,
requiring a life sentence." According to Dominguez, "the statutory language of . . .
section 667.67, subdivision (c)[(7)] describes a class of offenses subject to [the] elevated
One Strike penalties, requiring a jury finding as to a defendant's probation eligibility
beyond a reasonable doubt before the life sentence can be imposed."
As Dominguez acknowledges, however, the court in People v. Benitez (2005) 127
Cal.App.4th 1274 (Benitez) rejected "a similar argument" and held that "the proviso
in . . . section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation) is
not an element of the enhancement to be negated upon proof to a jury. Rather, it is a
legislative grant of authority to the trial court to entertain a request for probation (should
a defendant satisfy the criteria in section 1203.066, subd. (c)) despite eligibility otherwise
for sentencing under section 667.61." (Benitez, supra, at p. 1278; italics omitted.) The
court in Benitez further explained that "[f]inding a defendant ineligible for probation is
not a form of punishment, because probation itself is an act of clemency on the part of the
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trial court. [Citation.] Because a defendant's eligibility for probation results in a
reduction rather than an increase in the sentence prescribed for his offenses, it is not
subject to the rule of Blakely[, supra, 542 U.S. 296]." (Benitez, supra, at p. 1278; italics
omitted; see People v. Anderson (2010) 50 Cal.4th 19, 32 [there is no right to probation;
it is " 'an act of clemency and grace' "]; People v. Mancebo, supra, 27 Cal.4th at p. 754
["probation is not punishment"; it is "a matter of privilege, not right"]; People v. Holman
(2013) 214 Cal.App.4th 1438, 1474 ["[p]robation . . . is an act of clemency . . . , and 'its
primary purpose is rehabilitative in nature' "].)
We agree with Benitez that Blakely and Apprendi, supra, 530 U.S. 466,4 do not
require a jury to make findings that may reduce the "statutory maximum" punishment by
a grant of probation. (Benitez, supra, 127 Cal.App.4th at pp. 1277-1278; see Blakely,
supra, 542 U.S. at pp. 301-302.) A conviction under section 288, subdivision (a),
combined with any of the circumstances specified in former section 667.61, subdivision
(e), requires the court to impose an indeterminate sentence of 15 years to life. At the time
Dominguez committed his offenses, the exception applied when the court made findings
on all five factors listed in former section 1203.066, subdivision (c), there was no other
statutory proscription against probation, and the court exercised its discretion to grant
probation rather than impose a prison sentence. Apprendi does not apply where, as here,
the jury made all of the factual findings required for the imposition of the "statutory
4 The court in Benitez, supra, 127 Cal.App.4th 1274, does not discuss Apprendi, supra, 530 U.S. 466, but the court in Blakely, supra, 542 U.S. 296, does. The court's reasoning in Blakely is consistent with its reasoning in Apprendi. 30
maximum" sentence for a violation of section 288, subdivision (a), and a qualifying
multiple circumstance of former section 667.61, subdivision (e), here the multiple victim
circumstance of section 667.61, subdivision (e)(5).
Similarly, where the jury has made the requisite findings under section 288,
subdivision (a), and former section 667.61, subdivision (e), Alleyne does not require that
the jury must make the findings that may qualify the defendant for discretionary
probation under former section 1203.066, subdivision (c). Failing to qualify for an
exemption to probation ineligibility does not increase the mandatory minimum
punishment for an offense because " '[f]inding a defendant ineligible for probation is not
a form of punishment . . . .' " (People v. Woodward (2011) 196 Cal.App.4th 1143, 1152;
see § 1203, subd. (a) [probation is the "suspension of the imposition or execution of a
sentence and the order of conditional and revocable release in the community under the
supervision of a probation officer"].) Moreover, obtaining an exemption from probation
ineligibility under former section 1203.066, subdivision (c), depends on the court's
exercise of discretion. Thus, even if a jury were to make findings under former section
1203.066, subdivision (c), that the defendant was the victim's parent, probation was in the
child's best interest, rehabilitation was feasible, and there was no threat of physical harm
to the child victim if probation were granted, the court would still have the discretion to
deny probation. (See former § 1203.066, subd. (c)(5) ["court upon making its findings
pursuant to this subdivision is not precluded from sentencing the defendant to jail or
prison, but retains the discretion not to do so"].) The Supreme Court in Alleyne preserved
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such discretion when it took "care to note" that its decision did not eliminate "the broad
discretion of judges" in sentencing matters. (Alleyne, supra, 133 S.Ct. at p. 2163.)
Dominguez maintains that Benitez was "wrongly decided" because the court in
that case misinterpreted former section 667.61. At the time, subdivision (c) of former
section 667.61 listed seven convictions that required imposition of a life sentence
(assuming one of the qualifying circumstances applied). (See Benitez, supra, 127
Cal.App.4th at p. 1277, fn. 4.) The first six, subdivisions (c)(1) through (c)(6) of former
section 667.61, said nothing about probation, but the seventh, a violation of section 288,
subdivision (a), contained the qualifying language, "unless the defendant qualifies for
probation under subdivision (c) of Section 1203.066." Subdivision (h) of former section
667.61 provided that "[p]robation shall not be granted to . . . any person who is subject to
punishment under this section for any offense specified in paragraphs (1) to (6),
inclusive." (Benitez, supra, at p. 1277, fn. 4.) Dominguez argues that the Benitez court's
interpretation of former section 667.61 is incorrect because it creates a redundancy: the
reference to probation in subdivision (c)(7) is surplusage because subdivision (h)
prohibits probation for subdivisions (c)(1) through (c)(6) convictions (and not subdivision
(c)(7) convictions), so that "the subdivision (c)(7) language just restates what is already
clear in subdivision (h)."
We agree with the Benitez court's rejection of this very argument too: "Unlike the
defendant, we do not find that this interpretation would render the proviso redundant.
Subdivision (h) of section 667.61 concerns the prohibition of a grant of probation to
persons committing the offenses in the other six paragraphs of subdivision (c)(1)-(6),
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which is an apparent effort to dispel any ambiguity resulting from the lack of any express
reference to the subject of probation in those paragraphs. Thus, [section 667.61,]
subdivision (c)(7)'s proviso and subdivision (h) do not address the same issue." (Benitez,
supra, 127 Cal.App.4th at p. 1278; italics omitted.)
Dominguez also contends that former section 667.61, subdivision (c), "refers to
classification of 'offenses' to which this 'section' shall 'apply.' " Dominguez argues that
this language "indicates that the probation qualification for section 288[, subdivision] (a)
offenses is meant to describe a class of offenses/offenders, not as a surplusage serial
directive authorizing a grant of probation which is already authorized under other law.
This specific class of offenses/offenders was discussed in People v. Jeffers [(1987) 43
Cal.3d 984, 994-1000]: incestuous and opportunistic intrafamilial offenders who have
brighter prospects for rehabilitation and eventual reunification with a healthy family.
[Citation.] [¶] . . . Nothing in [former section 667.61, subdivision (c),] indicates the
legislature sought to eliminate the middle ground (determinate term) treatment, which
punishes and hopefully rehabilitates, yet permits eventual family reunification, for this
class of offenders. [Dominguez's] construction [of former section 667.61, subdivision
(c),] merely places this class of offenses among a host of other sex offenses (including
attempts and statutory rape)[,] which are not necessarily subject to the drastic life terms."
The language of the statute does not support Dominguez's argument. Former
section 667.61 did not create or describe a class of offenses or offenders entitled to
determinate term treatment. It created a " 'limited exception' " to "the ban on probation"
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otherwise applicable to convictions for "sex crimes qualifying for One Strike treatment"
under the statute. (People v. Wutzke, supra, 28 Cal.4th at pp. 930, 932.)
The jury made all of the findings required for the statutory maximum under former
section 667.61: a conviction of violating section 288, subdivision (a), and a qualifying
circumstance of section 667.61, subdivision (e). Dominguez's sentence is not
unconstitutional under Apprendi, supra, 530 U.S. 466.
VI
ABSTRACT OF JUDGMENT
Dominguez argues, and the People concede, that the abstract of judgment must be
corrected to reflect Dominguez's actual sentence. Because we are remanding this matter
for resentencing consistent with this opinion, we also order the superior court to prepare
and file a new abstract of judgment consistent with Dominguez's new sentence.
DISPOSITION
The judgment is modified to reflect that Dominguez has been convicted of
committing a lewd act on a child in violation of section 288, subdivision (a) under
count 4. We vacate Dominguez's sentence and remand the matter back for resentencing
consistent with this opinion. In conjunction with Dominguez's new sentence, the superior
34
court shall prepare and file a new abstract of judgment, and forward the abstract of
judgment to the Department of Corrections and Rehabilitation. We otherwise affirm the