P. v. Hinkle 4/24/05 CA1/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A103315

Case Date: 07/13/2005

Preview:Filed 4/25/05 P. v. Hinkle CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE PEOPLE, Plaintiff and Respondent, v. JAMES THOMAS HINKLE, Defendant and Appellant. (San Mateo County Super. Ct. No. SCO51602A) A103315

I. INTRODUCTION By an information filed May 31, 2002, appellant was charged with committing 18 felony sexual offenses against the same minor between June 1, 1997, and June 30, 1999. After a trial in early 2003, a jury convicted appellant of 13 of those offenses, and the trial court sentenced him to a total of 31 years in state prison. Appellant claims this sentence was erroneous in that, under Penal Code section 1170.1, subdivision (a),1 as that section read at the time of the charged offenses, appellant could receive a maximum sentence totaling only five years on some of the counts on which he was convicted. As a consequence, he argues, his sentence was eight years too long on those counts and, thus, his maximum sentence should have been 23, not 31, years. Via a supplemental letter brief, appellant also contends that the trial court's sentence is contrary to Blakely v. Washington (2004) 542 U.S. ____, [124 S.Ct. 2531]

1

All subsequent statutory references are to the Penal Code. 1

(Blakely), in two respects, namely, in its use of the upper term on the count it selected for the principal term and also by its imposition of consecutive sentences. We agree with appellant's contention regarding the application of section 1170.1, subdivision (a) and, under Blakely, the court's imposition of the upper term on the principal count. We disagree with him regarding the application of Blakely to consecutive sentences. Accordingly, we remand the case to the trial court for resentencing. II. FACTUAL AND PROCEDURAL BACKGROUND2 In the summer of 1997 the victim, Sean L., was 11 years old. Appellant, who worked with Sean's father, a contract painter, was visiting at the father's house in Murphys in Calaveras County. At that time, the first sexual contact occurred between Sean and appellant when, according to Sean's testimony at trial, appellant asked Sean to both lick his penis and then masturbate him, both of which Sean did. In the spring of the following year, 1998, appellant moved into Sean's father's Millbrae home. By this time, Sean was 12 years old. The sexual contact between the two resumed, as appellant regularly invited Sean to smoke cigarettes and watch pornographic movies with him in appellant's room in that house. Appellant had Sean masturbate him and perform oral sex on him over an extended period, sometimes as often as twice a month. Sean also testified that appellant twice inserted his penis in Sean's anus and, on another occasion, asked Sean to do the converse; Sean attempted to do so but could not. With one exception, these contacts ended when appellant moved out of the house; Sean testified that this occurred "[a] couple of months" after Sean's grandfather died, which was in early September 1998. Other testimony confirmed that appellant moved out of the Millbrae house in late November or early December 1998. Appellant was charged with seven counts of engaging in lewd and lascivious conduct with a child under the age of 14 (

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