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People v. Craig

California Court of Appeals, First District, Third Division
Jul 11, 2008
No. A119492 (Cal. Ct. App. Jul. 11, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RONALD KENNETH CRAIG, Defendant and Appellant. A119492 California Court of Appeal, First District, Third Division July 11, 2008

NOT TO BE PUBLISHED

Lake County Super. Ct. No. CR910162.

Pollak, J.

Defendant Ronald Kenneth Craig, convicted on a plea of guilty to two sexual offenses against his minor grandchildren, challenges the imposition of an aggravated sentence based on facts neither admitted nor found by a jury. Sentence was imposed in October 2007, subsequent to the amendments to Penal Code section 1170 that became effective on March 20, 2007. (Stats. 2007, ch. 3, § 2.) Defendant acknowledges that his contention that application of the amended sentencing statute to his offenses violates his ex post facto and due process rights has been foreclosed by the California Supreme Court’s decision in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). However, “for purposes of preserving the arguments for subsequent federal review” he asserts that Sandoval was wrongly decided. As defendant recognizes, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, this court is bound to affirm.

All statutory references are to the Penal Code.

By an amended information filed on April 27, 2007, defendant was charged with two counts of committing a lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (a) (counts I & VI)), one count of attempting to commit a lewd and lascivious act upon a child under the age of 14 (§§ 664, 288, subd. (a) (count II)), three counts of annoying and molesting a child (§ 647.6, subd. (a) (counts III, IV, & IX)), one count of exposing his person and private parts in a public place (§ 314, subd. (1) (count V)), one count of committing an act of sexual penetration against a minor under the age of 14 and at least 10 years younger than defendant (§ 289, subd. (j) (count VII)), and one count of committing a lewd and lascivious act upon a minor 14 or 15 years old and at least 10 years younger than defendant (§ 288, subd. (c)(1) (count VIII)).

Defendant pled guilty to count II (attempting to commit a lewd and lascivious act upon a child under the age of 14, in July 2006) and count VIII (committing a lewd and lascivious act upon a minor 14 or 15 years old and at least 10 years younger than defendant, in June 2006). The court denied probation and imposed the upper term of four years under count II plus a consecutive one-third the midterm, or eight months, under count VIII, for a total prison sentence of four years eight months. The court explained its sentencing choice as follows: “With regard to the sentencing choice, the court does elect to impose the upper term because the defendant took advantage of a position of trust or confidence to commit the crimes, the court gives great weight to that. In the defendant’s favor, he has no prior record and up until these incidents began, appeared to be a good citizen. However, in weighing all those, the court gives greater weight to the fact that he violated a position of trust and also the age of the victim in count two, and I elect to impose the upper term.”

Defendant’s challenge to the imposition of the upper term sentence rests on a two-step analysis. First, he asserts that under California’s sentencing scheme that existed prior to the amendment of section 1170, under which the midterm was presumptively the appropriate sentence absent a finding of factors in aggravation, Cunningham v. California (2007)549 U.S. 270 (Cunningham) precluded imposition of the upper term here because the aggravating factors relied on by the court were not admitted or found true by a jury beyond a reasonable doubt. Secondly, although by the time defendant entered his plea and was sentenced, section 1170 had been amended to remove the midterm presumption and the need to find factors in aggravation, he asserts that sentencing him under the amended statute for offenses committed before the amendment had been adopted “violate[s] his ex post facto or due process rights.” He makes no suggestion that the sentence selected by the court was an abuse of discretion or otherwise improper if the amended statute was validly applied to this case.

At the time of defendant’s sentencing, section 1170, subdivision (b) included the new sentence, “The court shall select the term which, in the court’s discretion, best serves the interests of justice.”

We shall assume that defendant is correct that, consistent with Cunningham, the upper term could not have been imposed under the prior statutory scheme without additional jury findings. Nevertheless, as he acknowledges, in Sandoval the California Supreme Court rejected his constitutional arguments addressed to application of the amended determinate sentencing law. The court concluded that “affording the trial court discretion to select among the three available terms, without requiring a finding of aggravating and mitigating circumstances, would change the sentencing system in a manner that would eliminate the constitutional defect identified in Cunningham,” and that “the federal Constitution does not prohibit the application of the revised sentencing process . . . to defendants whose crimes were committed prior to the date of our decision in the present case.” (People v. Sandoval, supra, 41 Cal.4th at pp. 852, 857.) Hence, as defendant recognizes, we are bound to uphold the sentence imposed upon him under the revised statutory scheme. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450.)

The judgment is affirmed.

We concur: McGuiness, P. J., Siggins, J.


Summaries of

People v. Craig

California Court of Appeals, First District, Third Division
Jul 11, 2008
No. A119492 (Cal. Ct. App. Jul. 11, 2008)
Case details for

People v. Craig

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RONALD KENNETH CRAIG, Defendant…

Court:California Court of Appeals, First District, Third Division

Date published: Jul 11, 2008

Citations

No. A119492 (Cal. Ct. App. Jul. 11, 2008)