P. v. Myers

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Filed 12/21/06 P. v. Myers CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT TODD MYERS,
Defendant and Appellant.
A114474
(Sonoma County
Super. Ct. No. SCR-479926)
Robert Todd Myers appeals from a judgment imposed upon his guilty plea to two
counts of lewd and lascivious conduct on a child (Pen. Code, § 288, subd. (a)). The trial
court sentenced defendant to the aggravated term of 10 years in state prison. Defendant
contends that the trial court erred in imposing the aggravated term and that the sentence
violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403; 124 S.Ct. 2531]
(Blakely). We affirm.
I. FACTUAL BACKGROUND
On January 13, 2006, a felony complaint was filed charging defendant with
continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a) (count I)), three counts
of lewd and lascivious conduct on a child (counts II-IV); and willfully inflicting physical
and mental pain on a child (Pen. Code, § 273a, subd. (a) (count V)). The charges
stemmed from defendant’s abuse of his daughter over a 10-year period. His daughter
alleged that she was sexually molested from the age of six years, and that defendant
required her to orally copulate him and masturbate him on a regular basis. She stated that

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initially the molestation occurred a few times per week but that recently it took place
approximately once a month.
On May 10, 2006, the complaint was amended to add two additional counts of
lewd and lascivious conduct on a child (counts VI & VII). Defendant pled guilty to
counts VI and VII. The court dismissed the remaining counts with a Harvey1 waiver.
Defendant acknowledged that the court could sentence him to a maximum term of 10
years in state prison.
On June 29, 2006, the trial court sentenced defendant to the aggravated term of
eight years on count VI plus a consecutive term of two years (one-third the midterm) on
count VII. The court found that the aggravating factors—the seriousness of the charges,
the manner of the crime indicating planning, the vulnerability of the victim, defendant’s
pedophilia, his extreme danger to any child, and that he took advantage of a position of
trust—outweighed any mitigating factors.
II. DISCUSSION
Defendant contends that the trial court erred in failing to impose the midterm. He
argues that there are several factors justifying imposition of the midterm.
As the Attorney General argues, defendant waived his sentencing claim because
he failed to object to the aggravated term below. The issue is therefore waived. (People
v. Scott (1994) 9 Cal.4th 331, 352-353, 356 [“complaints about the manner in which the
trial court exercises its sentencing discretion and articulates its supporting reasons cannot
be raised for the first time on appeal”].)
To obviate a claim that defendant was denied the effective assistance of counsel,
we nevertheless address his sentencing issue. The record demonstrates that no error
occurred.
Defendant complains that the court relied on his pedophilia as an aggravating
factor although California Rules of Court, rule 4.423(b)(2) provides that a defendant’s
mental condition is a circumstance in mitigation. He cites two out-of-state death penalty
cases in support of his claim. (Crain v. State (Fla. 2004) 894 So.2d 59, 62; Com. v.
1 People v. Harvey (1979) 25 Cal.3d 754.

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Edmiston (Pa. 2004) 851 A.2d 883, 886.) While the Crain court recognized pedophilia as
a nonstatutory mitigation circumstance (Crain, supra, 894 So.2d at p. 67, fn. 9), the court
in Edmiston rejected the defendant’s claim that his trial counsel erred in failing to
introduce expert testimony that the defendant was a pedophile as a mitigating
circumstance (Edmiston, supra, 851 A.2d at pp. 892-893). Neither case is persuasive
authority for defendant’s claim here. In any event, a single factor in aggravation is
sufficient to impose the aggravated term. (People v. Osband (1996) 13 Cal.4th 622, 732.)
Defendant concedes that the factors of the offenses indicating planning, and the
vulnerability of the victim or taking advantage of a position of trust supported imposition
of the aggravated term. In addition, the court noted the seriousness of the offenses,
stating that it was taking into account the “incredibly long period of time” during which
the offenses occurred. The court had before it not only the two counts which defendant
admitted, but was permitted to consider the other charges that were dismissed with the
Harvey waiver in sentencing defendant. Given the continuous sexual molestation of the
victim over a 10-year period, the court properly relied on the seriousness of the offenses
as well as the other factors it cited in imposing the aggravated term.
In sentencing defendant, the court acknowledged defendant’s mitigating
circumstances of his early plea and his lack of a prior record, but determined that the
aggravating factors prevailed. (See People v. Zamora (1991) 230 Cal.App.3d 1627, 1637
[trial court may minimize or disregard mitigating factors without stating its reasons].)
Even if the court relied on an improper aggravating factor, any error was harmless. On
this record, it is not reasonably probable that defendant would obtain a more favorable
result on remand. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant also asserts that the trial court’s imposition of the upper term deprived
him of his right to a jury trial under Blakely because the sentencing decision was based on
facts neither admitted by him nor found true by a jury. He acknowledges that his claim
was recently rejected by our Supreme Court’s decision in People v. Black (2005) 35
Cal.4th 1238. In Black, our Supreme Court determined that Blakely does not apply to
California’s determinate sentencing scheme. “[T]he judicial factfinding that occurs when

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a judge exercises discretion to impose an upper term sentence or consecutive terms under
California law does not implicate a defendant’s Sixth Amendment right to a jury trial.”
(Id. at p. 1244.) We are bound by the court’s ruling. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) 2
III. DISPOSITION
The judgment is affirmed.
________________________
RIVERA, J.
We concur:
___________________________
RUVOLO, P.J.
___________________________
SEPULVEDA, J.
2 We note that Blakely’s applicability to our determinate sentencing law is now
before the United States Supreme Court. (People v. Cunningham (Apr. 18, 2005,
A103501) [nonpub. opn.], cert. granted sub. nom. Cunningham v. California (2006)
___ U.S. ___ [164 L.Ed.2d 47; 126 S.Ct. 1329].)

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