Filed 7/22/14 P. v. Molina CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B248873

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA032071)
         v.

HECTOR FRANCISCO MOLINA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen
Blanchard, Judge. Affirmed.
         Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
                                    INTRODUCTION


       Hector Francisco Molina contends that the trial court deprived him of his Sixth
Amendment right to a jury trial on his eligibility for probation before the court sentenced
him to indeterminate life terms under former Penal Code section 667.61.1 We affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND


       A jury convicted Molina on four counts of committing lewd acts upon a child in
violation of section 288, subdivision (a). In counts 1, 2, and 3, the jury found Molina
guilty of sexually molesting his five-year-old granddaughter on three separate occasions
in 2004 and 2005. In count 4, the jury found Molina guilty of sexually molesting a three-
year-old guest in his home in 2011. The jury found true the multiple victim circumstance
allegation as to each count. (§ 667.61, subd. (e).)
       Pursuant to section 667.61, the “one strike” law, the trial court denied Molina
probation and sentenced him to an aggregate state prison term of 40 years to life,
consisting of a term of 25 years to life on count 4, a consecutive term of 15 years to life
on count 1, and concurrent terms of 15 years to life on counts 2 and 3. Molina timely
appealed.


                                      DISCUSSION


       Molina argues that his indeterminate sentences on counts 1, 2, and 3 under former
section 667.61 must be reversed because the trial court imposed these sentences without
jury findings beyond a reasonable doubt regarding whether he was eligible for probation


1      Statutory references are to the Penal Code. References to former section 667.61 in
this opinion are to the statute as it existed in 2004 and 2005, when Molina committed the
offenses charged in counts 1, 2, and 3.


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under former section 1203.066.2 Molina argues that these sentences are unconstitutional
because of a violation of his Sixth Amendment right to a jury trial under Apprendi v. New
Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and its progeny, such as
Alleyne v. United States (2013) ___ U.S. ___ [133 S.Ct. 2151, 186 L.Ed.2d 314] and
Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].
       Section 667.61 “sets forth an alternative and harsher sentencing scheme for certain
enumerated sex crimes . . . .” (People v. Mancebo (2002) 27 Cal.4th 735, 741; People v.
Rodriguez (2012) 207 Cal.App.4th 204, 211.) The statute provides, among other things,
for mandatory sentences of 15 years to life sentences for defendants convicted of one of
the sex offenses enumerated in section 667.61, subdivision (c), and under one of the
circumstances listed in section 667.61, subdivision (e).3 (Former § 667.61, subd. (b); see


2      Molina does not challenge his sentence on count 4.
3         Former section 667.61 provided, in relevant part:
          “(a) A person who is convicted of an offense specified in subdivision (c) under
one or more of the circumstances specified in subdivision (d) or under two or more of the
circumstances specified in subdivision (e) shall be punished by imprisonment in the state
prison for life and shall not be eligible for release on parole for 25 years except as
provided in subdivision (j).
          “(b) Except as provided in subdivision (a), a person who is convicted of an
offense specified in subdivision (c) under one of the circumstances specified in
subdivision (e) shall be punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 15 years except as provided in subdivision (j).
          “(c) This section shall apply to any of the following offenses: [¶] . . . [¶] (7) A
violation of subdivision (a) of Section 288, unless the defendant qualifies for probation
under subdivision (c) of Section 1203.066. [¶] . . . [¶]
          “(e) The following circumstances shall apply to the offenses specified in
subdivision (c): [¶] . . . [¶] (5) The defendant has been convicted in the present case or
cases of committing an offense specified in subdivision (c) against more than one victim.
[¶] . . . [¶]
          “(h) Probation shall not be granted to, nor shall the execution or imposition of
sentence be suspended for, any person who is subject to punishment under this section for
any offense specified in paragraphs (1) to (6), inclusive, of subdivision (c).”
          The Legislature has amended section 667.61 to delete the provision allowing
probation if the court makes these findings under section 1203.066.


                                             3
People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1261 [“section 667.61—otherwise
known as the one strike law[—] . . . provides for indeterminate terms of either 15 years to
life or 25 years to life for section 288, subdivision (a) and certain other sex offense if
certain circumstances apply, regardless of whether the defendant has prior convictions”];
People v. Palmer (2001) 86 Cal.App.4th 440, 443 [“California’s ‘One Strike’ law
requires a sentence of 15 years to life for a person convicted of certain enumerated sexual
offenses under particular aggravating circumstances”].) “Conviction of an enumerated
offense alone does not trigger the One Strike law. The People also must plead and prove
at least one aggravating circumstance specified in section 667.61, subdivision (d) or (e).”
(People v. Wutzke (2002) 28 Cal.4th 923, 930.)
       The jury found Molina guilty of committing lewd acts on children (§ 288,
subd. (a)), a sex offense listed in section 667.61, subdivision (c), against multiple victims,
a qualifying circumstance listed in section 667.61, subdivision (e). (Former § 667.61,
subd. (e)(5), now § 667.61, subd. (e)(4).) Under the applicable version of the statute,
Molina’s violations of section 288, subdivision (a), subjected him to an indeterminate life
term, “unless [he] qualifie[d] for probation under subdivision (c) of Section 1203.066.”
(Former § 667.61, subd. (c)(7).) Former section 1203.066, subdivision (c), provided the
possibility of an exemption from probation ineligibility for violations of section 288,
subdivision (a), where the court makes a series of findings regarding the defendant’s
relationship to the victim, the victim’s best interests, and the possibility of the
defendant’s rehabilitation. (Former § 1203.066, subds. (a)(7) & (c).)4 Nevertheless,



4      Former section 1203.066 provided, in relevant part:
       “(a) Notwithstanding Section 1203 or any other law, probation shall not be
granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a
finding bringing the defendant within the provisions of this section be stricken pursuant
to Section 1385 for, any of the following persons: [¶] . . . [¶] (7) A person who is
convicted of committing a violation of Section 288 or 288.5 against more than one
victim. [¶] . . . [¶]
       “(c) Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court
makes all of the following findings:

                                               4
“probation is not required where favorable findings under section 1203.066[, subdivision]
(c) are made. The sentencing court ‘retains the discretion’ to find the defendant
unsuitable for probation and to order imprisonment.” (People v Wutzke, supra, 28
Cal.4th at p. 932, fn. 7, quoting from § 1203.066, subd. (c)(5).)
       In Apprendi v. New Jersey, supra, 530 U.S. 466, 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; see Blakely v. Washington, supra, 542
U.S. at pp. 303, 304 [because the “‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant,” a judgment may not “inflict[] punishment that
the jury’s verdict alone does not allow”]; People v. Chism (2014) 58 Cal.4th 1266, 1335.)
       In Alleyne v. United States, supra, ___ U.S. ___ [133 S.Ct. 2151], the United
States Supreme Court extended “the logic of Apprendi” to mandatory minimum
sentences. (Id. at pp. ___, ___ [133 S.Ct. at pp. 2157, 2160].) The Supreme Court,
overruling Harris v. United States (2002) 536 U.S. 545 [122 S.Ct. 2406, 153 L.Ed.2d
524], held that “any fact that increases the mandatory minimum is an ‘element’ that must
be submitted to the jury.” (Alleyne, supra, at p. ___ [133 S.Ct. at p. 2155.) Thus, any


        “(1) The defendant is the victim’s natural parent, adoptive parent, stepparent,
relative, or is a member of the victim’s household who has lived in the victim’s
household.
        “(2) A grant of probation to the defendant is in the best interest of the child.
        “(3) Rehabilitation of the defendant is feasible . . . .
        “(4) The defendant is removed from the household of the victim until the court
determines that the best interests of the victim would be served by returning the
defendant to the household of the victim. . . .
        “(5) There is no threat of physical harm to the child victim if probation is granted.
The court upon making its findings pursuant to this subdivision is not precluded from
sentencing the defendant to jail or prison, but retains the discretion not to do so. The court
shall state its reasons on the record for whatever sentence it imposes on the defendant.”
        References in this opinion to former section 1203.066 are to the statute as it
existed in 2004 and 2005.


                                              5
fact (other than a prior conviction) that increases the penalty beyond a statutory
maximum or that increases a statutorily prescribed minimum penalty must be proved to a
jury beyond a reasonable doubt. (See People v. Blakely (2014) 225 Cal.App.4th 1042,
1060; People v. Osuna (2014) 225 Cal.App.4th 1020, 1039.) The Supreme Court
cautioned, however, that its decision “does 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.” (Alleyne v. United States,
supra, at p. ___ [133 S.Ct. at p. 2163].)
       Molina argues that in this case “the jury made no findings as to [his] probation-
eligibility before the court sentenced him to indeterminate 15 year to life sentences on
counts” 1, 2, and 3, and that “[t]his omission was federal constitutional error under
Apprendi . . . and its progeny.” Molina argues that Apprendi applies because, “as a result
of the court’s apparent finding that [he] was not eligible for probation pursuant to . . .
section 1203.033 [sic], subdivision (c), [he] went from punishment on counts [1, 2, and 3]
with a determinate sentence to punishment under the alternate One Strike sentencing
scheme, requiring a life sentence.” According to Molina, “the statutory language of . . .
section 667.67, subdivision (c)[(7)], . . . describes a class of offenses subject to [the]
elevated One Strike penalties, requiring a jury finding as to a defendant’s probation
eligibility beyond a reasonable doubt before the life sentence can be imposed.”
       As Molina acknowledges, however, the court in People v. Benitez (2005) 127
Cal.App.4th 1274 rejected this very argument and held that “the proviso in . . .
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.” (Id., at p. 1278.) The court in Benitez further
explained that “[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. [Citation.]
Because a defendant’s eligibility for probation results in a reduction rather than an


                                               6
increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely
[v. Washington, supra, 542 U.S. 296].” (Ibid.; see People v. Anderson (2010) 50 Cal.4th
19, 32 [there is no right to probation; it is “‘an act of clemency and grace’”]; People v.
Mancebo, supra, 27 Cal.4th at p. 754 [“probation is not punishment”; it is “a matter of
privilege, not right”]; People v. Holman (2013) 214 Cal.App.4th 1438, 1474
[“[p]robation . . . is an act of clemency . . . , and ‘its primary purpose is rehabilitative in
nature’”].)
       We agree with Benitez that Blakely and Apprendi do not require a jury to make
findings that may reduce the “statutory maximum” punishment by a grant of probation.
(People v. Benitez, supra, 127 Cal.App.4th at p. 1278; see Apprendi v. New Jersey, supra,
542 U.S. at pp. 301-302.) A conviction under section 288, subdivision (a), combined
with any of the circumstances specified in former section 667.61, subdivision (e),
requires the court to impose an indeterminate sentence of 15 years to life. At the time
Molina committed his offenses the exception applied when the court made findings on all
five factors listed in former section 1203.066, subdivision (c), there was no other
statutory proscription against probation, and the court exercised its discretion to grant
probation rather than impose a prison sentence. Apprendi does not apply where, as here,
the jury made all of the factual findings required for the imposition of the “statutory
maximum” sentence for a violation of section 288, subdivision (a), and a qualifying
multiple circumstance of former section 667.61, subdivision (e), here the multiple victim
circumstance of section 667.61, subdivision (e)(5).
       Similarly, where the jury has made the requisite findings under section 288,
subdivision (a), and former section 667.61, subdivision (e), Allyene does not require that
the jury must make the findings that may qualify the defendant for discretionary
probation under former section 1203.066, subdivision (c). Failing to qualify for an
exemption to probation ineligibility does not increase the mandatory minimum
punishment for an offense because “‘[f]inding a defendant ineligible for probation is not
a form of punishment . . . .’ [Citation.]” (People v. Woodward (2011) 196 Cal.App.4th
1143, 1152; see § 1203, subd. (a) [probation is the “suspension of the imposition or

                                                7
execution of a sentence and the order of conditional and revocable release in the
community under the supervision of a probation officer”].) Moreover, obtaining an
exemption from probation ineligibility under former section 1203.066, subdivision (c),
depends on the court’s exercise of discretion. Thus, even if a jury were to make findings
under former section 1203.066, subdivision (c), that the defendant was the victim’s
parent, probation was in the child’s best interest, rehabilitation was feasible, and there
was no threat of physical harm to the child victim if probation were granted, the court
would still have the discretion to deny probation. (See former § 1203.066, subd. (c)(5)
[“court upon making its findings pursuant to this subdivision is not precluded from
sentencing the defendant to jail or prison, but retains the discretion not to do so”].) The
Supreme Court in Allyene preserved such discretion when it took “care to note” that its
decision did not eliminate “the broad discretion of judges” in sentencing matters.
(Alleyne v. United States, supra, ___ U.S. at p. ___ [133 S.Ct. at p. 2163].)5
       Molina argues that Benitez was “wrongly decided” because the court in that case
misinterpreted former section 667.61. At the time, subdivision (c) of former section
667.61 listed seven convictions that required imposition of a life sentence (assuming one
of the qualifying circumstances applied). (See People v. Benitez, supra, 127 Cal.App.4th
at p. 1277, fn. 4.) The first six, subdivisions (c)(1) through (c)(6) of former section
667.61, said nothing about probation, but the seventh, a violation of section 288,
subdivision (a), contained the qualifying language, “unless the defendant qualifies for
probation under subdivision (c) of Section 1203.066.” Subdivision (h) of former
section 667.61 provided that “[p]robation shall not be granted to . . . any person who is
subject to punishment under this section for any offense specified in paragraphs (1) to
(6), inclusive . . . .” (People v. Benitez, supra, at p. 1277, fn. 4.) Molina argues that the


5      Where, however, the fact that the defendant is on probation when he or she
commits an offense increases the minimum sentence, Allyene may require that the
prosecution prove the fact of the defendant’s probation status to a jury. (See State v.
Lizardi (Ariz.Ct.App. 2014) 323 P.3d 1152, 1155-1156; State v. Large (Ariz.Ct.App.
2014) 321 P.3d 439, 443-445.)


                                               8
Benitez court’s interpretation of former section 667.61 is incorrect because it creates a
redundancy: the reference to probation in subdivision (c)(7) is surplusage because
subdivision (h) prohibits probation for subdivisions (c)(1) through (c)(6) convictions (and
not subdivision (c)(7) convictions), so that “the subdivision (c)(7) language just restates
what is already clear in subdivision (h).”
       We agree with the Benitez court’s rejection of this very argument too: “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)(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.” (People
v. Benitez, supra, 127 Cal.App.4th at p. 1278.)
       Molina also contends that former section 667.61, subdivision (c), “refers to
classification of ‘offenses’ to which this ‘section’ shall ‘apply.’” Molina argues that this
language “indicates that the probation qualification for section 288[, subdivision] (a)
offenses is meant to describe a class of offenses/offenders, not as a surplusage serial
directive authorizing a grant of probation which is already authorized under other law.
This specific class of offenses/offenders was discussed in People v. Jeffers [(1987) 43
Cal.3d 984, 994-1000]: incestuous and opportunistic intrafamilial offenders who have
brighter prospects for rehabilitation and eventual reunification with a healthy family. . . .
[¶] . . . Nothing in [former section 667.61, subdivision (c),] indicates the legislature
sought to eliminate the middle ground (determinate term) treatment[,] which punishes
and hopefully rehabilitates, yet permits eventual family reunification, for this class of
offenders. [Molina’s] construction [of former section 667.61, subdivision (c),] merely
places this class of offenses among a host of other sex offenses (including attempts and
statutory rape)[,] which are not necessarily subject to the drastic life terms.”
       The language of the statute does not support Molina’s argument. Former
section 667.61 did not create or describe a class of offenses or offenders entitled to


                                              9
determinate term treatment. It created a “‘limited exception’” to “the ban on probation”
otherwise applicable to convictions for “sex crimes qualifying for One Strike treatment”
under the statute. (People v. Wutzke, supra, 28 Cal.4th at pp. 930, 932.)
       The jury made all of 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). Molina’s sentence is not
unconstitutional under Apprendi.


                                     DISPOSITION


       The judgment is affirmed.



                                                 SEGAL, J.*


We concur:



              PERLUSS, P. J.



              ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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