People v. Reynoso CA2/4

Filed 10/9/15 P. v. Reynoso CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B262255

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA032756) v.

SALVADOR JOHNNY REYNOSO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Stan Blumenfeld, Judge. Affirmed. David H. Goodwin, under appointment by the Court of Appeal, and Salvador Johnny Reynoso, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.

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Salvador Johnny Reynoso appeals from the judgment of conviction after he was resentenced to 25 years to life on the base count of forcible rape in concert, with concurrent sentences on the remaining counts. His appointed counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436), and Reynoso filed a supplemental brief in pro. per. In 1997, 15-year-old Reynoso and another minor kidnapped a female driver, robbed her of her cell phone and gold chain, raped her, and forced her to orally copulate them and to make ATM withdrawals. Tried as an adult, Reynoso was convicted of rape in concert (counts 1-3), forcible oral copulation in concert (counts 4-5), kidnapping for carjacking (count 7), and first degree robbery (counts 10-11), with true findings that the kidnapping substantially increased the risk of harm (counts 1-5) and the oral copulation was through force or menace (count 5). He was sentenced to concurrent 25-years-to-life terms on counts 1 and 7 and to a determinate term of 40 years on the remaining counts, consisting of consecutive nine-year terms for counts 2 through 5, and two-year terms for counts 10 and 11. We affirmed the judgment in People v. Reynoso (Aug. 28, 2000, B126442 [nonpub. opn.]). In 2013, Reynoso filed a petition for writ of habeas corpus under People v. Caballero (2012) 55 Cal.4th 262 (Caballero), arguing that his sentence violated the Eighth Amendment because it exceeded his life expectancy. The trial court granted the petition and resentenced Reynoso, running all previously imposed sentence terms concurrently with the base term of 25 years to life on count 1. In this supplemental brief, Reynoso argues that the One Strike law, Penal Code section 667.61, under which his 25-years-to-life term was imposed, is unconstitutional as applied to him. Reynoso relies on the legislative statement of purpose for the law, cited in People v. Wutzke (2002) 28 Cal.4th 923—that “the targeted group preys on women and children, cannot be cured of its aberrant impulses, and must be separated from society to prevent reoffense.” (Id. at pp. 929–930.) According to Reynoso, juvenile offenders are not incorrigible and therefore Penal Code section 667.61 cannot apply to juveniles.