P. v. Rodriguez

Filed 8/16/06 P. v. Rodriguez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bert L. Swift, Judge. Affirmed as modified.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Jose Louis Rodriguez (defendant) contends that the imposition of consecutive sentences of 15 years to life for four counts of lewd and lascivious conduct upon a child under the age of 14 constitutes cruel and unusual punishment in violation of the state and federal Constitutions. Defendant also contends that the abstract of judgment must be corrected to include additional custody and conduct credits. Respondent concedes that additional custody credits should be included in the abstract. Respondent, however, contends that an award of additional conduct credits is improper. We agree that additional custody credits should be included and the abstract of judgment should be modified; however, we reject defendant's other contentions and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

The facts and trial court proceedings which led to the current appeal are set forth in this court's previous opinion in this matter. (People v. Rodriguez (2005) 130 Cal.App.4th 1257.) We have granted defendant's request to take judicial notice of the record in that case. The following recitation is taken in part from People v. Rodriguez, supra, 130 Cal.App.4th 1257.

In 2001, an amended information charged defendant with four counts of lewd and lascivious conduct upon a child under the age of 14, in violation of Penal Code^[1] section 288, subdivision (a). The crimes involved defendant's two daughters as the victims, ages 8 and 10. The information further alleged that the lewd acts involved substantial sexual conduct on a victim under the age of 14, and were committed on more than one victim, within the meaning of section 1203.66, subdivisions (a)(7), (a)(8), and (b). The acts, â€