Opinion
A148201
05-15-2017
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO OROZCO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR170903)
A jury convicted Fernando Orozco of 21 counts of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)) and found true two allegations he committed the acts against multiple victims (§ 667.61). The trial court denied probation and sentenced Orozco to state prison for 30 years to life.
All undesignated statutory references are to the Penal Code.
Orozco appeals. He contends he was entitled to a jury finding on "all components of the section 667.61" enhancement allegations. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying the convictions are not relevant to the issue on appeal. From approximately 2000 to 2006, Orozco sexually abused his stepdaughter (Jane Doe 1) and her friend (Jane Doe 2). The operative information alleged 23 counts of committing a lewd act on Jane Doe 1, a child under 14 (§ 288, subd. (a)); and 2 counts of committing a lewd act on Jane Doe 2, a child under 14 (§ 288, subd. (a)). The information also alleged two multiple victim enhancements (§ 667.61, subd. (e)(5)). A jury convicted Orozco of 21 counts of committing a lewd act on a child under 14 (§ 288, subd. (a)) and found true the multiple victim allegations (§ 667.61, subd. (e)(5)).
The prosecution recommended sentencing Orozco to state prison. In response, Orozco noted the jury had not made findings under section 1203.066 and urged the court to impose probation. At the April 2016 sentencing hearing, the court denied probation and sentenced Orozco to 30 years to life in state prison. The court explained: "the first decision the court has to make is whether or not to grant probation or to deny it. And the court has taken into account . . . Section 1203.066 as it existed at the time of these offenses, and as well as the fact that this is a discretionary decision by the court as to whether or not to grant probation. [¶] In making that decision the court . . . finds that it's not in the best interests of the victim to do so. Furthermore, the court finds first of all that this was a very serious and long standing abuse. The record reflects a time period of approximately six years repeated molestations over the course of those years. The victim [Jane Doe 1] because of her age was obviously very vulnerable. And defendant was in a position of trust. The court . . . understands it has the discretion to grant probation but chooses not to given the circumstances of this case."
When Orozco committed the offenses, the trial court had discretion to grant probation pursuant to section 1203.066, subdivision (c) if certain criteria were satisfied, including that a grant of probation was in the child's best interest. (See People v. Hammer (2003) 30 Cal.4th 756, 765-766 & fn. 8.)
DISCUSSION
Orozco contends his sentence must be vacated because the jury did not make findings regarding his probation eligibility (§ 667.61) in violation of the Sixth Amendment to the federal constitution.
Section 667.61 provides for a mandatory sentence of 15 years to life for a defendant convicted of a qualifying sex offense — including a violation of section 288, subdivision (a) — under one of the circumstances listed in section 667.61, subdivision (e). One of the circumstances in section 667.61, subdivision (e) is the crimes were committed against multiple victims. (§ 667.61, former subds. (b), (e)(5).)
Section 667.61 has been amended. (Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1, p. 8570.) --------
When Orozco committed the charged violations of section 288, subdivision (a), he was subject to an indeterminate life term unless he qualified for probation under section 1203.066, subdivision (c). (§ 667.61, former subd. (c)(7); § 1203.066, former subd. (c).) To be eligible for probation: (1) defendant must be the victim's natural parent or a member of the victim's household who has lived in the household, (2) a grant of probation is in the best interests of the child, (3) defendant's rehabilitation is feasible, (4) defendant has been removed from the household until the court determines that the best interests of the victim would be served by returning defendant to the household, and (5) there is no threat of physical harm to the child victim if probation is granted. (§ 1203.066, former subd. (c)(1)-(5).)
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely).) In Alleyne v. United States (2013) 570 U.S. ___, 133 S.Ct. 2151 (Alleyne), the Supreme Court extended "the logic of Apprendi" to mandatory minimum sentences and concluded "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." (Alleyne, supra, 133 S.Ct. at pp. 2157, 2155.) Alleyne cautioned that its holding did "not mean that any fact that influences judicial discretion must be found by a jury" and that "broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment." (Id. at p. 2163.)
Orozco's contention that he was entitled to jury findings regarding his probation eligibility has been rejected by People v. Benitez (2005) 127 Cal.App.4th 1274 (Benitez). There, a jury found the defendant guilty of numerous lewd and lascivious acts upon victims under the age of 14; the jury also found the offenses involved more than one victim, but the jury did not separately find the defendant ineligible for probation. On appeal, the defendant argued the absence of such a finding violated Blakely. (See Benitez, supra, 127 Cal.App.4th at pp. 1277-1278.)
The Court of Appeal disagreed and held the proviso in former section 667.61, subdivision (c)(7) disqualifying certain sex offenders from probation "is not an element of the enhancement to be negated upon proof to a jury." (Benitez, supra, 127 Cal.App.4th at p. 1278.) Benitez reasoned that eligibility for probation was not subject to Blakely because "[f]inding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court," and "a defendant's eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses." (Ibid.; see People v. Woodward (2011) 196 Cal.App.4th 1143, 1152 [ineligibility for probation is not a form of punishment],)
We are not persuaded by Orozco's claim that Benitez was wrongly decided. We conclude Blakely and Apprendi do not require a jury to make findings that may reduce the "statutory maximum" punishment by a grant of probation. (Benitez, supra, 127 Cal.App.4th at pp. 1277-1278; see Blakely, supra, 542 U.S. at pp. 301-302.) The jury made the findings required for the statutory maximum under former section 667.61: a conviction of violating section 288, subdivision (a), and a qualifying circumstance of section 667.61, subdivision (e). Orozco's sentence is not unconstitutional. Orozco's reliance on People v. Anaya (2013) 221 Cal.App.4th 252 — which did not concern section 667.61 — does not alter our conclusion.
Having reached this conclusion, we need not address the Attorney General's contention that Orozco was not prejudiced by the jury's failure to find him ineligible for probation.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.