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People v. Pecci6/23/1999
CERTIFIED FOR PUBLICATION
Robert Michael Pecci was convicted of committing various sexual offenses including filming sexual conduct with a minor for a noncommercial purpose in violation of Penal Code section 3ll.4 subdivision (c). Section l203.065 subdivision (a) expressly prohibits a grant of probation if this enumerated offense has been committed. The trial court adhered to the letter of the law, ruled that appellant was not eligible for probation, and sentenced him to prison for the upper three year term. It also imposed consecutive terms for other sexual offenses for an aggregate term of five years.
Appellant contends: "The sentence must be vacated and this matter remanded for reconsideration of appellant's application for probation because the probation ineligibility provision as applied to appellant violated principles of substantive due process, equal protection of the law, and the prohibition against cruel and unusual punishment." We affirm.
Appellant committed the offenses against his l6 year old niece, "J." J. told appellant that she was interested in modeling and appellant offered to pay her to pose nude. They went to a motel room where he videotaped and photographed her in several explicit poses. Appellant told J. that she would be performing sexual acts with an anonymous l8 year old male model and that she would be blindfolded. Appellant blindfolded J., and pretended that the male model entered the room. Then appellant performed several sex acts with her. He filmed this activity.
Constitutional Challenges
At no time below did appellant object to the probation ineligibility section on theories that it deprived him of substantive due process of law, equal protection of the law, and resulted in a cruel and unusual punishment. He may not change theories for the first time on appeal. (People v. Borland (l996) 50 Cal.App.4th l24, l29; see also People v. Garceau (1993) 6 Cal.4th 140, 173; compare People v. Vera (1977) 15 Cal.4th 269, 272; People v. Mills (1978) 81 Cal.App.3d 171, 175-176 [rule relaxed where only a question of law is presented arising from undisputed facts]; People v. Butler (1980) 105 Cal.App.3d 585, 588 [same].)
These claims also fail on the merits. The Legislature is the sole Judge of what acts are punishable as crimes and what constitutes appropriate punishment therefor. (See, e.g., In re Lynch (1972) 8 Cal.3d 410, 414.) It would be difficult, if not impossible, for an appellate court to conclude that a defendant who is covicted of section 311.4 subdivision (c) should be eligible for probation as a matter of law or that a five year prison sentence deprives him of substantive due process of law. Even if appellant has been convicted of a lesser included offense of commercial sexual filming of a minor, for which probation is legislatively allowed, the two offenses are separate and distinct. Persons convicted of different offenses can be punished differently. (E.g. People v. Kilborn (l996) 4l Cal.App.4th l325, l330.) There is no constitutional impediment for the Legislature to declare that probation is precluded for a separate and distinct crime. As to cruel and unusual punishment, it is sufficient to Conclusionally observe that appellant has not demonstrated that the probation ineligibility provision and the resulting five year prison term "'shocks the conscience and offends fundamental notions of human dignity. . . .'" (E.g., People v. Macias (l982) l37 Cal.App.3d 465, 475; In re Lynch, supra, 8 Cal.3d 410, 424.)
Probation Eligibility
The properly framed issue, the one actually litigated in the trial court, concerns the disparity in probation eligibility for the commercial versus the
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