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Name: People v. Retanan
Case #: C049493
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/14/2007

The trial court’s finding under section Penal Code section 667.61, subdivision (g) was not subject to Blakely requirement. On appeal from his conviction for multiple sex offenses against children, appellant argued that several of the “one strike” sentences had to be reversed for Blakely violations. The trial court found that each of the crimes occurred on separate dates or at separate times. Appellant claimed that the section 667.61 subdivision (g) finding of separate offenses is a fact which increases the maximum sentence, and is therefore subject to the rule of Blakely. The appellate court rejected the argument. The maximum penalty in the case was established when the jury convicted appellant of the predicate offenses and sustained the special circumstance allegations. If subdivision (g) applied, it would only act to reduce liability if appellant’s culpability was less than the statutory penalty. Mitigating the maximum punishment does not fall within the rule of Blakely and Apprendi. The trial court’s finding that subdivision (g) didn’t apply did not increase appellant’s maximum sentence. Even if Blakely applied, the error was harmless because the evidence overwhelmingly proved that appellant committed the charged offenses against separate victims on separate occasions. Further, appellant’s sentence of 135 years to life was not cruel and unusual punishment because he could not possibly serve the sentence. The sentence was not disproportionate to either the offender nor the offenses.