Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF010474. Richard Todd Fields, Judge.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Richard Todd Fields, Judge. Petition denied.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant Joe Golman Harral appeals from judgment entered following jury convictions for five counts of child molestation, committed against two of his granddaughters while defendant was babysitting the girls. (Pen. Code, § 288, subd. (a).) The offenses were committed from January 2000 through November 2004. The molestation offenses alleged in counts 1 and 2 involved Granddaughter 1 and counts 3, 4, and 5 involved Granddaughter 2. The jury also found true that the One Strike law (§ 667.61, subd. (e)(5)) applied because defendant committed child molestation against more than one victim.
Unless otherwise noted, all statutory references are to the Penal Code.
The court sentenced defendant under the One Strike law to an indeterminate prison term of 30 years to life.
Defendant contends the matter should be remanded for resentencing because the trial court sentenced him under the current sentencing statutes rather than under the former One Strike law (§ 667.61) and former probation eligibility provision (§ 1203.066, subd. (c)), in effect when defendant committed the charged offenses. As a consequence, defendant’s sentence constituted an ex post facto violation. We agree, as do the People.
Reference in this opinion to the “former One Strike law” and “former section 667.61” is to the One Strike law, section 667.61, in effect from January 2001 through November 2004.
Section 1203.066, subdivision (c) is referred to in this opinion as section 1203.066(c). Reference to “former section 1203.066(c)” refers to the version of section 1203.066(c) in effect from January 2001 through November 2004.
Defendant further asserts that, on remand, he cannot be sentenced under the former One Strike law and must be sentenced to a determinate term under section 288, subdivision (a) since the former One Strike law requires findings by the jury that defendant does not qualify for probation under former section 1203.066(c), and this is not possible on remand. We reject this contention. A jury need not decide whether defendant qualifies for probation under former section 1203.066(c).
Section 288, subdivision (a) is referred to in this opinion as section 288(a).
Defendant has also filed a petition for writ of habeas corpus alleging that his trial attorney provided ineffective assistance of counsel by failing to object to the trial court sentencing defendant based on the incorrect version of the One Strike law and section 1203.066(c).
This court ordered defendant’s writ petition (case No. E045091) to be considered with the instant appeal for the sole purpose of determining whether an order to show cause should issue. The People filed an informal response noting that, because the People conceded in their respondent’s brief to defendant’s appeal that the matter should be remanded for resentencing pursuant to ex post facto principles, defendant’s petition is moot. We agree.
The judgment of conviction is affirmed, but defendant’s sentence is ordered vacated and the matter is remanded for resentencing. Defendant’s writ petition is denied.
1. Facts
Since the issues defendant raises on appeal concern sentencing error and do not raise significant evidentiary issues, the facts of the charged offense are summarily stated as follows.
In November 2004, Granddaughter 1, who was eight years old, told her mother she did not want to go to defendant’s house. On many occasions in the past, defendant and his wife had babysat Granddaughter 1 and she had been happy to go. When her mother asked her why she did not want to go, Granddaughter 1 said defendant had made her touch his penis. During a subsequent recorded interview, Granddaughter 1 also said defendant not only made her touch his penis but also exposed himself to her and masturbated in front of her. This happened at least two times when Granddaughter 1 was about eight years old.
Shortly after Granddaughter 1 revealed that defendant had molested her, Granddaughter 2, who was Granddaughter 1’s cousin, was asked if defendant had touched her. In response, Granddaughter 2, who was 12 years old at the time, told her mother defendant had touched her genitals, made her engage in oral sex, and made her masturbate him until he ejaculated. Defendant committed each of these acts against Granddaughter 2 at least five times over the past five years.
Defendant testified at trial that he did not molest either of the girls.
2. Ex Post Facto Violation
The parties agree that the court violated ex post facto laws by sentencing defendant based on amended versions of the One Strike law and the probation eligibility provision, section 1203.066(c), that were not in existence when defendant committed the charged offenses.
Under the ex post facto doctrine, “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Collins v. Youngblood (1990) 497 U.S. 37, 43.)
The offenses alleged in counts 1 through 5 were allegedly committed between January 2001 and November 2004, and thus predated the versions of the One Strike law and section 1203.066(c) in effect when sentencing defendant in 2007. The One Strike law in effect when defendant committed the section 288(a) offenses provided that, if the defendant qualified for probation under section 1203.066(c), the One Strike law did not apply. (Former § 667.61, subd. (b)(7).) Former section 1203.066, subdivision (a)(7), in effect when defendant committed the crimes, listed a section 288(a) offense as ineligible for probation if there were multiple victims. But former section 1203.066(c) provided an exception when the court found various factors existed. The amended versions of the One Strike law and section 1203.066(c), in effect at the time of the sentencing hearing, eliminated the probation exception. Probation was no longer permitted under 1203.066(c) for a section 288(a) offense under defendant’s circumstances.
When defendant was sentenced in 2007, the trial court applied the current amended version of the One Strike law, rather than the law in effect when defendant committed the section 288(a) offenses. As a consequence, the court did not make any findings on whether the former section 1203.066(c) exception allowing probation applied. Under the current law relied on when defendant was sentenced, the court concluded defendant was ineligible for probation and imposed a 30-year-to-life sentence under the One Strike law.
Defendant asserts that under such circumstances, he is entitled to reversal of his sentence and the matter should be remanded for resentencing under the former versions of the One Strike law and section 1203.066(c). Under these former statutes, the trial court had the discretion to impose probation upon finding true the following five factors enumerated in section 1203.066(c): “[Defendant] is the victim’s ‘relative,’ . . . The four other factors bearing on probation eligibility concern the victim’s best interest with respect to probation; the defendant’s amenability to treatment and reform; the victim’s best interest with respect to any continuing household relationship or other contact with the defendant; and the threat of harm posed by probation.” (People v. Wutzke (2002) 28 Cal.4th 923, 932.)
We agree defendant’s sentence constituted an ex post facto violation and thus remand this matter to the trial court for resentencing under the former sections 667.61 and 1203.066 in effect when defendant committed the charged offenses (between January 2001 and November 2004).
3. Remand for Resentencing
Defendant contends that, if on remand, the trial court does not find true the five factors listed in section 1203.066(c), and thus determines defendant is ineligible for probation, the court’s imposition of an indeterminate sentence under the One Strike law would violate Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) because a jury determination of the five probation factors is required.
While we recognize, as the People assert, that no error has yet been committed in this regard because the trial court has not yet resentenced defendant on remand, defendant raises a concrete issue as to the manner in which the trial court must proceed when resentencing defendant upon remand. We address this issue since it a question of law applicable to the manner in which the resentencing proceedings shall be conducted on remand and, if the issue is not resolved in this appeal, it will likely reappear in a subsequent appeal.
Defendant contends the Apprendi rule requires a jury determination of the former section 1203.066(c) probation exception factors since these factual findings are prerequisites for imposing the sentence enhancement provisions of the One Strike law. In Apprendi, the United States Supreme Court found that the federal Constitution required that any fact that increases the maximum penalty for a crime must be charged and treated as a criminal element, submitted to the jury, and proved beyond a reasonable doubt. (People v. Martinez (2003) 31 Cal.4th 673, 700, citing Apprendi v. New Jersey, supra, 530 U.S. at pp. 476-490.)
Apprendi does not apply here. The factual findings that would qualify defendant for probation would not increase the maximum penalty for defendant’s crimes. As argued by the People, such findings would have the opposite effect, namely, reducing the penalty for the crime to probation as opposed to a prison term. The factual finding of committing a violation of section 288 against more than one victim may be required to be pled and proved beyond a reasonable doubt, because the fact would qualify defendant for the one strike sentence enhancement under former section 667.61, thereby increasing the maximum penalty for the crime. (See People v. Mancebo (2002) 27 Cal.4th 735, 753-754.) However, the factual criteria for applying the exception under former section 1203.066(c) in no way subjects defendant to a penalty greater than the statutory maximum.
In addition, probation generally is a matter left to the trial court’s discretion. Probation is defined as “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.” (§ 1203, subd. (a).) “[P]robation is not punishment [citation], and is further a matter of privilege, not right.” (People v. Mancebo, supra, 27 Cal.4th at p. 754.) The court, and not the jury, hears and determines the suitability of probation. (§ 1203, subd. (b)(3).) The court is vested with broad discretion in granting or denying probation in any given case. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) Probation, therefore, is a privilege in the form of a suspended sentence that may be granted by the court without any jury input. In suspending rather than increasing or enhancing a sentence, probation falls outside the reach of Apprendi.
We conclude that the trial court has no duty to submit the probation eligibility issue to the jury.
4. Disposition
The judgment of conviction is affirmed but defendant’s sentence is vacated and remanded for resentencing. Defendant’s petition for writ of habeas corpus is denied.
We concur:Ramirez P. J.McKinster J.