People v. Booth

Filed 7/19/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G054999

v. (Super. Ct. No. 14WF3419)

RYAN MICHAEL BOOTH, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant was convicted of five counts of sexual penetration of a child 10 1 years old or younger (Pen. Code, § 288.7, subd. (b); counts 2, 3, 5, 7, & 10); three counts of oral copulation of a child 10 years old or younger (§ 288.7, subd. (b); counts 1, 4, & 6); five counts of preparing pornographic images of a minor (§ 311.4, subd. (c); counts 8, 11, 12, 13, & 14); one count of possessing child pornography (§ 311.11, subd. (a); count 9); and one count of sexual exploitation of a child (§ 311.3, subd. (a); count 15). As to count 9, possession of pornography, the jury found it to be true that defendant possessed more than 600 images and 10 or more images involving a prepubescent minor or a minor under 12 years old. (§ 311.11, subd. (c)(1).) The court sentenced defendant to a determinant term of 8 years 4 months, plus an indeterminate term of 120 years to life. Defendant raises two issues on appeal. First, he contends the court erroneously believed it had no discretion to run the section 288.7 (sexual penetration and oral copulation) sentences concurrently. He requests we remand so the court may exercise its discretion. He bases his argument on the following comment by the court. “[T]he defendant is not statutorily eligible for probation pursuant to [section] 1203.065[, subdivision] (a). There is no discretion as to the indeterminate sentence with regard to this particular case.” Then in the minutes the following statement appears. “Court indicates as to counts 1, 2, 3, 4, 5, 6, 7 and 10 there is no discretion and the court must sentence the defendant to the mandatory minimum indeterminate sentence of 120 years to life. The defense asked for [section] 654 and the court is not inclined to grant that request.”