Lead Opinion
Opinion
On July 17, 1987, we filed an opinion in this case. Since that time, we have received and considered a petition for rehearing and an answer thereto. We granted rehearing and reheard oral argument. We now issue our opinion.
Respondent Jesus Sandoval was convicted following a court trial of oral copulation with a child under the age of 14, and more than 10 years younger than he, in. violation of Penal Code section 288a, subdivision (c). The court found true the allegation that respondent occupied a position of special trust and committed an act of substantial sexual conduct. (Pen. Code, § 1203.066, subd. (a)(9).) Respondent was sentenced to the low term of three years. The judgment was affirmed on appeal. On return of the remittitur, the trial court vacated respondent’s three-year sentence, suspended criminal proceedings, and granted probation conditioning its grant of probation upon respondent serving the first fifty-two days in county jail. The court then gave respondent credit for 52 days time he had already served.
The People appeal from that order, contending: “A. The trial court erred in failing to follow the law of the case set by this court (holding the mandatory minimum sentence to be constitutionally applicable to respondent); B. The trial court erred on the merits in determining the three year minimum penalty to be cruel or unusual as applied to a child molester who exploits a position of special trust, poses as a law enforcement officer, and walks the child behind a wall in order to engage in substantial sexual conduct with a seven year old, especially where psychotherapists are divided as to the danger of repeated offense, and suitability for probation; C. Given the legality of the sentence, the trial court erred in entertaining a motion purportedly under Penal Code section 1181 to reconsider the sentence and grant proba
Respondent was the child victim’s “tee-ball” coach. The offense is described in the unpublished opinion affirming respondent’s conviction: “On June 20, 1983, [the child] went to the first practice, accompanied by a babysitter. While at practice, [respondent] took [the child] behind a tree where he displayed a badge that had a bear and a star. Thereafter, [respondent] pulled [the child’s] trousers down and committed an act of oral copulation upon the boy. After the act was completed, [respondent] asked [the child] what kind of candy bar he wanted and told [the child] not to tell anyone about the oral copulation.” The court’s footnote 1 provides: “The mother of one of [the child’s] teammates testified [respondent] told her that he was a deputy sheriff.” (People v. Sandoval (Jan. 24, 1986) B007256.)
Following respondent’s conviction, the court appointed two doctors to examine respondent and submit psychiatric reports to the court. One doctor opined that respondent is an emotionally immature individual, prosocially motivated, and not inclined to repeat the same or similar behavior if allowed to remain in the community and receive appropriate counseling. The second doctor considered respondent to be a danger to the safety of the community and at risk for repeating the same type of offense, and did not recommend probation. A third opinion was offered by a psychologist at the request of respondent. The psychologist described respondent as a “relatively limited risk to the community at large” who would probably “rigidly adhere to all probationary conditions.”
The probation officer, in his first supplemental report, recommended that in light of the conflicting information received from the appointed psychiatrists, respondent be committed to the Department of Corrections for diagnosis and recommendation. Respondent was committed for diagnosis and recommendation pursuant to Penal Code section 1203.03. The Department of Corrections recommended that respondent be considered for a formal grant of probation.
The People submitted points and authorities contending that the “court is without discretion to grant probation under P. C. 1203.066.” The defense
After stating “no further social purpose would be served in sending Mr. Sandoval to prison in terms of his own punishment or to benefit society with respect to deterring conduct of others” and after discussing People v. Superior Court (Beasley) (1984)
Respondent appealed. He argued with regard to the issue that “under the Lynch-Foss guidelines, appellant’s commitment to state prison for three years is cruel and unusual punishment, and grossly disproportionate to appellant’s individual culpability.” The appellate court affirmed the judgment of the trial court, holding that the conviction was supported by sufficient evidence, that respondent was properly found to have occupied a position of special trust within the meaning of subdivision (a)(9) of section 1203.066 of the Penal Code, and that the trial court had properly determined that the statutorily mandated state prison sentence did not constitute cruel or unusual punishment. With regard to cruel or unusual punishment that opinion states: “ ‘Appellant’s final contention must also fail. “[A]t the time of sentencing, the trial court was aware of the decision in People v. Dillon (1983)
In his petition for rehearing, respondent again argued that “appellant’s commitment to state prison for three years is cruel and unusual punishment” within the Lynch-Foss guidelines (In re Lynch (1972)
Following the return of the remittitur, the case was called for probation and sentencing on September 17, 1986. The court had before it the probation officer’s second supplemental report, made in connection with the September 1986 hearing which report revealed no commission of crimes by respondent since the original sentencing hearing. Counsel for respondent
The trial court explained that at the time of original sentencing the law was unclear and it had presumed the cruel or unusual punishment determination would be made by the appellate court. Accordingly, it had made factual determinations regarding respondent and the crime, but had left the determination of whether a prison sentence would constitute cruel or unusual punishment for the appellate court to determine. The trial court interpreted the opinion affirming the conviction as requiring it to make that determination. The trial court reviewed its prior findings
The trial court had jurisdiction to consider an application for probation upon the filing of the remittitur, because respondent had not begun serving his sentence in state prison before he was released on bail pending appeal. (In re Stallings (1970)
The trial court was bound by the law of the case doctrine, however, to adhere to the appellate determination that the sentence was not cruel or unusual punishment. (See People v. Shuey (1975)
The trial court misinterpreted our opinion. That opinion does not remand to the trial court for a determination in the first instance of whether the sentence constitutes cruel or unusual punishment. (See People v. Leigh, supra,
On the return of the remittitur, the trial court resentenced respondent based upon facts before it that existed prior to respondent’s appeal. Those facts were also before this court at the time of our first opinion when we rejected respondent’s contention that the sentence constituted cruel or unusual punishment. The trial court had no discretion upon the return of the remittitur to determine that the sentence constituted cruel or unusual punishment based upon those facts.
The trial court also had before it a second supplemental probation report, prepared subsequent to the original sentencing hearing. That report contained no new facts, however, except the observation that respondent had been free on bail since the last sentencing hearing, on August 28, 1984, and that he continued to deny commission of the offense. Nothing contained in
The law of the case doctrine “generally precludes multiple appellate review of the same issue in a single case.” (Searle v. Allstate Life Ins. Co. (1985)
In light of our foregoing disposition, we do not reach appellant’s remaining contentions.
Respondent’s contention that to send him to prison, given the unusual postconviction history of his case, would be manifestly unfair is without merit. Respondent spent 79 days in actual custody, at the time of his arrest and during the diagnostic study, prior to his original sentencing and has spent no time in confinement on this conviction since that time. Unlike the defendants in People v. Tanner (1979)
The trial court’s order of September 17, 1986, is reversed. The trial court is ordered to correct the abstract of judgment to reflect the low term of three years for violation of Penal Code section 288a, subdivision (c).
Kingsley, Acting P. J., concurred.
Notes
We hereby take judicial notice of the confidential documents from the record in People v. Sandoval (Jan. 24, 1986) No. B007256, lodged with the court by appellant. (Evid. Code, §§ 452, subd. (d) and 459.)
The trial court stated: “In reviewing the file of this case, including the probation report, diagnostic study and the notes I have taken during the course of the trial, moving papers, doctors’ reports, I reaffirm the conclusions that I made at the time of the original sentencing during the hearing on the motion for new trial, that the defendant is a person who is not functioning at a level I would consider normal in terms of his intellectual capacity and his capacity to deal with people.
“And I found at that time, and I find now, that that conclusion is based largely on the reports of Dr. Sharma and Dr. Maloney, and the diagnostic studies received pursuant to section 1203.03 of the Penal Code.
“The defendant has a sense of grandiosity with regards to his own self-importance, which does not conform with the reality that surrounds him.
“The doctors in the examinations seem to feel that this problem was based in part on some organicity resulting from an injury that defendant sustained in childhood. I am not prepared to make a determination as to whether or not that is so. I do note that for the record.
“Looking at the defendant’s personal history and the lack of any criminal history, I am satisfied that he probably and most likely will not repeat sexual offenses of the type he has been convicted of.
“I don’t believe he would be committing any crimes knowingly, and this is borne out by the opinions of Dr. Sharma, Dr. Maloney, and the examiners of the State Department of Corrections; that it is their belief that they do not believe Mr. Sandoval is criminally oriented and that he is not likely to commit future criminal offenses.
“Again, as I indicated earlier, the sexual conduct was minimal and non-physically harmful, although it may have been psychiatrically or psychologically harmful to the victim; but it wasn’t an offense where the victim was caused any physical pain or abuse other than the oral copulation itself.
“I find no basis on which to find that Mr. Sandoval suffers from any mental disorders predisposing to the commission of sexual offenses and in particular pedophilia.
“The reports give a strong inference to the direction that Mr. Sandoval, despite his statements to the examiners has not really had a sexual history at all; that he is a sexually inadequate person, and whatever sexual history he gave to the examiners reflected the grandiosity of his self-impression that is not borne out by reality. It’s fairly apparent in the manner in which he related his reported past sexual experience.
“The court feels and the court did feel at the time of the last sentencing, as I feel now, that Mr. Sandoval is more child-like than anything else, in terms of his relationships or his attempted relationships with others, and that no socialist [s/c] purpose would be served in sending the defendant to state prison at this time.”
Concurrence Opinion
I also would reverse, but for reasons which differ from those of the majority. The majority places its reliance upon the law of the case. The first Sandoval opinion, quoted by the present majority, explicitly stated that the trial court was apparently aware of its power to consider whether the statutorily mandated state prison sentence might constitute cruel and unusual punishment. Based on this supposition the court, in the
Based on the events from which the current appeal has been taken, the prior appellate decision simply was mistaken. Upon the initial remand, the trial judge expressly said that at the earlier sentencing “I was not satisfied that I did have that power [to determine if a prison sentence was cruel and unusual] and then I endeavored to have the appellate court exercise that power, but it’s clear from the decision in this case that the appellate court is putting the ball back into my side of the net and is telling me that it was my obligation to make that determination and make a ruling.” The trial court then proceeded to find that a prison sentence was cruel and unusual in the present case.
The law of the case will be disregarded when necessary to avoid an unjust decision (Searle v. Allstate Life Ins. Co. (1985)
Therefore, respondent was entitled to have the trial court determine, after the first remand, whether a prison sentence, as mandated by Penal Code section 1203.066, subdivision (a)(9), is cruel and unusual. The trial court concluded that it was, for the reasons set forth in footnote 2 of the majority opinion, ante, page 486. These reasons focused on the first technique set forth in In re Lynch (1972)
Nevertheless, the technique used by the trial court is but one means toward resolution of the ultimate question involved in determining whether a sentence is so disproportionate as to be regarded as constitutionally cruel or unusual. That circumstance arises, the Supreme Court teaches us, when the punishment “is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, supra,
Therefore, I concur in reversing the judgment.
A petition for a rehearing was denied September 15, 1987, and respondent’s petition for review by the Supreme Court was denied November 25, 1987. Mosk, J., was of the opinion that the petition should be granted.
Assigned by the Chairperson of the Judicial Council.