The People v. Reyes CA2/5 ( 2013 )

Filed 9/23/13 P. v. Reyes CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B245615
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA372655)
v.
ROGELIO REYES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County of Los Angeles,
William C. Ryan, Judge. Affirmed.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for
Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Rogelio Reyes (defendant) was convicted of four counts
of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)1). On appeal,
defendant contends that the trial court erred in sentencing him. We affirm the judgment.
BACKGROUND
Following a trial, the jury found defendant guilty of four counts of continuous
sexual abuse of a child in violation of section 288.5, subdivision (a). In a previous appeal
in this case, we remanded the matter for resentencing in our unpublished opinion—
People v. Reyes (August 22, 2012, B234552 [nonpub.opn.])—because defendant had
been improperly sentenced under section 667.61.
Following remand, the trial court sentenced defendant to state prison for an
aggregate term of 64 years, consisting of the upper term of 16 years on count 1, and
consecutive upper terms of 16 years on each of the remaining three counts. Defendant
was awarded a total of 1,014 days of presentence custody credits, consisting of 882 days
actual custody credit and 132 days conduct credit.
DISCUSSION
Defendant contends that sentencing error occurred because the trial court
incorrectly believed that full-term consecutive sentences were mandatory under section
667.6, subdivision (d), rather than discretionary under section 667.6, subdivision (c). The
Attorney General argues that even if there were sentencing error it was harmless. We
hold that the trial court did not err, for it exercised its discretion.
A. Background Facts
Defendant’s conduct specified in counts 1 and 2 was alleged to have occurred on
or between May 1, 2002, and July 31, 2003. The conduct specified in count 3 was
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All statutory citations are to the Penal Code unless otherwise noted.
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alleged to have occurred on or between January 17, 1990, and December 31, 1995, and
the conduct specified in count 4 was alleged to have occurred on or between June 9,
1992, and June 9, 1999. Counts 1 through 4 each involved separate victims.
The prosecutor’s sentencing memorandum provided that the trial court was
required to impose full term consecutive sentences pursuant to section 667.6, subdivision
(d), and it also provided that full term consecutive sentences were authorized by both
subdivisions (c) and (d). The prosecutor’s sentencing memorandum “requested” that
defendant be sentenced to an aggregate term of 60 years in state prison, consisting of the
upper term of 16 years on counts 1, 2, and 3, and the middle term of 12 years on count 4,
because the crimes involved great violence, great bodily harm, threat of great bodily
harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal.
Rules of Court, rule 4.421(a)(1)), the victims were particularly vulnerable (Cal. Rules of
Court, rule 4.421(a)(3)), the manner in which the crimes were carried out indicates
planning, sophistication, or professionalism (Cal. Rules of Court, rule 4.421(a)(8)),
defendant took advantage of a position of trust or confidence to commit the offenses (Cal.
Rules of Court, rule 4.421(a)(11)), and defendant has engaged in violent conduct that
indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)).
At the sentencing hearing, the following exchange occurred: “[Trial court:] My
indicated is to sentence the defendant to the high term on each count consecutive. These
are full consecutive sentences under the law. Correct? [Prosecutor:] Yes. Separate
victims, separate occasions.” Defendant’s counsel stated that he agreed with the trial
court and the prosecutor. Thereafter, defendant’s counsel said, “I was hoping that the
court would consider the midterm consecutive.” The following exchange then occurred:
“[Prosecutor:] “I believe the high term is appropriate for this matter. There were four
different victims. It went for an extended period of time and the damage to the victims
are irreparable. . . . [Defendant] has earned high term consecutive. [¶] [Trial court:]
All right. He also, as I recall in both cases he committed these offenses in a position of
trust. One of the victims was the son of his closest friend or one of his closest
friends. [¶] [Prosecutor:] Two of the victims actually. [¶] [Trial court:] Two of the
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victims. And the other two were the stepchildren. [¶] [Prosecutor:] Yes.
Stepchildren. [¶] So given those factors and also that the defendant at the original
sentencing hearing basically blamed the victims for his predicament, he showed a distinct
lack of remorse at the time of sentencing. Adding those factors together I do think the
high term is appropriate.” The trial court invited defendant to address the court, but
defendant declined to do so. The trial court sentenced defendant to state prison for an
aggregate term of 64 years, consisting of the upper term of 16 years on count 1, and full
consecutive upper terms of 16 years on each of the remaining three counts.
B. Analysis
During the time defendant committed the offenses, section 667.6, subdivision (c)
provided that, “In lieu of the term provided in Section 1170.1, a full, separate, and
consecutive term may be imposed for each violation of . . . Section 288.5 . . . .”
(Emphasis added.) At that time, subdivision (d) provided that a full, separate, and
consecutive term of imprisonment must be imposed on certain listed sex offenses “if the
crimes involve separate victims or involve the same victim on separate occasions.”
As the Attorney General concedes, subdivision (d) of section 667.6 is not
applicable to defendant’s sentencing. Prior to 2006, the offense of continuous sexual
abuse of a child under the age of 14 (§ 288.5) was not listed as a sex offense in section
667.6 and, therefore, was not subject to the mandatory consecutive sentencing required
by section 667.6, subdivision (d). Section 667.6 was amended, effective on September
20, 2006, to add section 288.5 as an offense subject to mandatory consecutive sentences
when multiple offenses were committed against separate victims or on separate
occasions. (Stats. 2006, ch. 337 (S.B.1128), § 32.) Under ex post facto principles, a
statutory amendment cannot be applied retroactively if it increases the punishment for a
crime after its commission. (People v. Delgado (2006) 140 Cal.App.4th 1157, 1164.)
Because defendant completed his crimes on July 31, 2003—before the offense of
continuous sexual abuse pursuant to section 288.5 was included as a qualifying offense
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for purposes of section 667.6, subdivision (d), section 667.6, subdivision (d), did not
mandate full-term consecutive sentences.
The record reflects that the trial court properly sentenced defendant pursuant to
section 667.6, subdivision (c)—giving the trial court discretion to sentence defendant to
full-term consecutive sentences. It is true that the prosecutor’s sentencing memorandum
provided that the trial court was required to impose full term consecutive sentences
pursuant to section 667.6, subdivision (d). But it also provided that full term consecutive
sentences was authorized by subsection (c), and “requested” that defendant be sentenced
to an aggregate term of 60 years in state prison, consisting of the upper term of 16 years
on counts 1, 2, and 3, and the middle term of 12 years on count 4, based on several
aggravating factors. At the sentencing hearing, the trial court and counsel agreed that the
full consecutive sentences are to be imposed on defendant “under the law,” but
defendant’s counsel requested that the trial court impose on defendant the middle term
for each of the offenses. The prosecutor responded by saying that defendant had
“earned” the imposition of the high term consecutive for each count. The trial court
found that the upper term was appropriate as to each count because defendant committed
the offenses while in a position of trust because two of the victims were his stepchildren
and the other two victims were the sons of his closest friend, and that defendant’s
statements at the original sentencing hearing showed a distinct lack of remorse because
he blamed the victims for his predicament. This shows that the trial court exercised its
discretion in sentencing defendant to full-term consecutive sentences.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
KUMAR, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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