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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Appellant, v. Jesus SANDOVAL, Defendant and Respondent.

Crim. B024330.

Decided: July 17, 1987

Ira Reiner, Dist. Atty., Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant. Edward P. George, Jr., Inc. and Edward P. George, Jr., for defendant and respondent.

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.

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 probation after appellate affirmance of the conviction and sentence;  D. The trial court erred in striking the section 1203.066 (position of special trust/substantial sexual conduct) finding in order to hold the statutory penalty unconstitutional as applied to respondent.”

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   The offense is described in the unpublished opinion affirming respondent's conviction:  “On June 20, 1983, [the child] went to the first practice, accompanied by a babysitter.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.1  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, typed opn. p. 3.)

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, pro-socially 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.”1  The reports note that respondent suffered a serious head injury in an automobile accident in 1981.

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 submitted points and authorities contending that respondent was eligible for probation on the grounds that a position of special trust had not been established within the meaning of Penal Code section 1203.066, subdivision (a)(9), and that imposition of a state prison sentence would constitute cruel or unusual punishment.   The trial court denied probation and sentenced respondent to the low term of three years in state prison.

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.2

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, “and grossly disproportionate to appellant's individual culpability.”   Petition for rehearing was denied.   Appellant made the same argument in his petition for review in the Supreme Court.   Petition for review was denied.

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.   Counsel for respondent made an oral motion that the court reconsider the sentence and grant probation under Penal Code section 1181.   The trial court resentenced respondent, granting probation.

The trial court explained that at the time of original sentencing the law was unclear and that it presumed that 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.   The trial court interpreted the opinion affirming the conviction as requiring it to make that determination.   The court reviewed its prior findings 3 and concluded that respondent “is not a dangerous person and not a person that ought to be sent to state prison for this single act under the circumstances of [his] state of mental development and personality development, that it would be cruel and unusual punishment within the meaning of [People v.] Dillon.”   It set aside its finding under Penal Code section 1203.066, subdivision (a)(9) “for that reason only” and granted probation.

[1] 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) 5 Cal.App.3d 322, 329, 85 Cal.Rptr. 96.)   His commitment to the Department of Corrections for diagnostic study pursuant to section 1203.03 of the Penal Code took place prior to sentencing, and was not an execution of judgment.  (See People v. Nicholson (1979) 98 Cal.App.3d 617, 622, 159 Cal.Rptr. 766.)

[2] 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) 13 Cal.3d 835, 841, 120 Cal.Rptr. 83, 533 P.2d 211.)   The determination that a sentence results in cruel or unusual punishment may be made by either the trial court or the appellate court.  (See People v. Williams (1986) 180 Cal.App.3d 922, 926, 225 Cal.Rptr. 842;  People v. Leigh (1985) 168 Cal.App.3d 217, 223, 214 Cal.Rptr. 61.)   Respondent fully briefed the issue to this court.   The issue was before this court, and a determination adverse to respondent on the issue was necessary to this court's affirmance.

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, 168 Cal.App.3d at p. 222, 214 Cal.Rptr. 61.)   It affirms the trial court's sentence of three years in state prison.

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 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 that report justifies a different outcome on the issue of cruel or unusual punishment.

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) 38 Cal.3d 425, 434, 212 Cal.Rptr. 466, 696 P.2d 1308.)   It will not be relied on to create an injustice.  (Id., at p. 435.)   Respondent has demonstrated no “manifest misapplication of existing principles resulting in substantial injustice” which would justify departing from the doctrine.  (See People v. Shuey, supra, 13 Cal.3d at p. 846, 120 Cal.Rptr. 83, 533 P.2d 211.)

In light of our foregoing disposition, we do not reach appellant's remaining contentions.

[3] Respondent's contention that to send him to prison, given the unusual post-conviction 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) 24 Cal.3d 514, 521, 156 Cal.Rptr. 450, 596 P.2d 328, and in People v. Holt (1985) 163 Cal.App.3d 727, 734, 209 Cal.Rptr. 643, respondent has not served a jail sentence as a condition of probation.   The erroneous grant of probation does not of itself preclude a subsequent prison sentence.  (See People v. Warner, (1978), 20 Cal.3d 678, 689, 143 Cal.Rptr. 885, 574 P.2d 1237;  People v. Almodovar (1987) 190 Cal.App.3d 732, 749, 235 Cal.Rptr. 616;  People v. Gonzalez (1979) 96 Cal.App.3d 725, 728, 158 Cal.Rptr. 205.)   Under the circumstances of this case, it is not manifestly unfair to require respondent to serve the statutorily mandated minimum state prison term.

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).

McCLOSKY, Associate Justice.

KINGSLEY, Acting P.J., and COLE, J.*, concur.