People v. Benitez
Opinion
Opinion
A jury convicted defendant Jose Benitez of 30 counts of molesting the two children of his brother’s girlfriend. It also sustained the allegation that the offenses involved more than one victim. Based on these findings, the trial court sentenced the defendant to state prison for two consecutive indeterminate life terms for at least 30 years, with concurrent terms for all the remaining convictions. 1
On appeal, the defendant contends the prosecutor committed misconduct, and the trial court erred when it failed to instruct the jury to consider the past criminal conduct of a witness, allowed his trial to proceed in his absence after he failed to appear on the final day of trial, and violated his constitutional right to have a jury determine every necessary fact. In the published portion of our opinion we reject this last contention by holding that the proviso in Penal Code section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation), is not an element of the enhancement to be negated upon proof to a jury. We shall affirm.
The defendant’s arguments do not require us to summarize the entirety of the testimony at trial. To the extent necessary for context, we will incorporate facts in the Discussion.
Discussion
I, II *
*1277 III
As noted above, after returning 30 verdicts that found the defendant guilty of committing nondescript lewd and lascivious acts upon two victims under the age of 14 (Pen. Code, § 288, subd. (a); subsequent undesignated section references are to this code), the jury returned the self-evident finding that these violations involved two or more victims “within the meaning of . . . Section 667.61(e)(5).” Under section 667.61 (the internal cross-references in which render it a veritable hall of mirrors), a defendant convicted of any offense in subdivision (c) under one circumstance contained in subdivision (e) is subject to an indeterminate life term of at least 15 years. (§ 667.61, subd. (b).) Among the qualifying offenses (id., subd. (c)(7)) is section 288, subdivision (a), unless the defendant is eligible for probation (§ 1203.066, subd. (c)). Among the circumstances that qualify the offense for an enhanced sentence under section 667.61 is committing a “subdivision (c)” offense against more than one victim. (§ 667.61, subd. (e)(5).)
Under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531], any fact other than “recidivism” that increases the punishment for an offense beyond the “statutory maximum” (the maximum a trial court may impose on facts necessarily reflected in the jury verdict for the offense) must be the subject of a jury finding. (Id. at pp. 303 [159 L.Ed.2d at pp. 413-414].) Here, pursuant to the pleading and proof provision of section 667.61, subdivision (i), the jury expressly found the defendant guilty of an offense within the meaning of subdivision (e)(5), which in turn incorporates any offense in subdivision (c) committed against multiple victims. 4 The jury, *1278 of course, had already found the defendant guilty of section 288, subdivision (a). What the defendant faults is the lack of an explicit jury finding that he was ineligible for probation.
Contrary to defendant’s contention, we find that the proviso in Penal Code section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation) is not an element of the enhancement to be negated upon proof to a jury. Rather, it is a legislative grant of authority to the trial court to entertain a request for probation (should a defendant satisfy the criteria in section 1203.066, subd. (c)) despite eligibility otherwise for sentencing under section 667.61. Unlike the defendant, we do not find that this interpretation would render the proviso redundant. Subdivision (h) of section 667.61 concerns the prohibition of a grant of probation to persons committing the offenses in the other six paragraphs of subdivision (c) (§ 667.61, subd. (c)(1)—(6), which is an apparent effort to dispel any ambiguity resulting from the lack of any express reference to the subject of probation in those paragraphs. Thus, section 667.61, subdivision (c)(7)’s proviso and subdivision (h) do not address the same issue.
Finding 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. (People v. Superior Court (Kirby) (2003) 114 Cal.App.4th 102, 105-106 [7 Cal.Rptr.3d 440].) Because a defendant’s eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely. (Cf. People v. Barasa (2002) 103 Cal.App.4th 287, 293, 294-295 [126 Cal.Rptr.2d 628] [eligibility for diversion]; People v. Cleveland (2001) 87 Cal.App.4th 263, 270-271 [104 Cal.Rptr.2d 641] [section 654].) As a result, the enhancement of his molestation convictions did not offend his constitutional rights.
*1279 IV *
Disposition
The judgment is affirmed.
Blease, Acting P. J., and Hull, J., concurred.
A petition for rehearing was denied April 15, 2005, and appellant’s petition for review by the Supreme Court was denied July 20, 2005. George, C. J., and Baxter, J., did not participate therein.
Footnotes
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26 Cal. Rptr. 3d 262 (People v. Benitez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.