People v. Wychocki
| Decision Date | 21 January 1987 |
| Citation | 188 Cal.App.3d 1063,233 Cal.Rptr. 830 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Stanley H. WYCHOCKI, Defendant and Appellant. A033603. |
John K. Van De Kamp, Atty. Gen., Dane R. Gillette, Christopher J. Wei, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Mark D. Greenberg, Berkeley, for defendant and appellant.
Stanley H. Wychocki appeals from a judgment of imprisonment for lewd and lascivious acts upon a child under 14 (Pen.Code, § 288, subd. (a)) and oral copulation with a child under 14 (Pen.Code, § 288a, subd. (c)). We reverse the judgment as to the sentence imposed and remand the cause for resentencing.
According to a probation report, Wychocki molested his niece in June 1979 when she was nine years old. In April 1985, when an officer investigated the incident, the victim told the officer that Wychocki had fondled her breasts and vagina, played with her anal area, committed oral copulation upon her vagina, and attempted to place his tongue on her anus. When the officer interviewed Wychocki, he admitted committing the oral copulation.
Wychocki pleaded nolo contendre to both counts. On October 2, 1985, the court sentenced him to two concurrent six-year prison terms.
Preliminarily, the Attorney General contends the appeal must be dismissed because Wychocki's notice of appeal was not timely filed.
When persons are in custody, however, an appeal is timely if the notice of appeal was delivered to the inmate's custodian within the time for appeal. (People v. Milton (1969) 270 Cal.App.2d 408, 410, fn. 1, 75 Cal.Rptr. 803.) Based on defense counsel's declaration in support of a request for findings on appeal (Cal. Rules of Court, rule 23), we find that on November 26, 1985, Wychocki delivered to a guard an envelope containing the notice of appeal, addressed to his trial attorney; the guard did not post the envelope until December 2; the trial attorney received the envelope on December 4 and filed the notice of appeal that day.
Accordingly, the appeal is not to be dismissed. The notice of appeal was delivered to Wychocki's custodian within the time for appeal.
Wychocki contends the concurrent mid-term six-year sentences were cruel and unusual in view of "the nature of the offense and the offender, with particular regard to the degree of danger which both present to society...." (In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.) He cites his favorable military and employment record, his attendance at counseling sessions, the absence of reported molestation incidents since the present offenses, recommendations by the probation department and a psychiatrist that he be placed on stringent probation, and the absence of violence in the commission of the offenses.
The factors cited by Wychocki, however, are offset not only by the eggregiousness of the offenses, which Wychocki concedes he cannot "go far in trying to mitigate," but also by Wychocki's history of child molestation. The probation report stated that the victim's mother and three sisters and Wychocki's stepdaughter had all been molested by Wychocki when they were very young. The psychiatrist, despite recommending probation, reported that Wychocki "has shown evidence of child molestation with hints of pedophilia for many years," and testified that Wychocki should not be around young children. Despite the mitigating factors cited by Wychocki, the concurrent mid-term six-year sentences were not cruel or unusual in light of the nature of the offenses and the danger to society presented by Wychocki's history of pedophilia.
Wychocki correctly contends the cause must be remanded for resentencing because the court failed to state any reasons reasons whatsoever for denying probation. (See People v. Romero (1985) 167 Cal.App.3d 1148, 1151, 213 Cal.Rptr. 774.)
The Attorney General concedes the error, but contends resentencing is unnecessary because it is not reasonably probable a different result would have occurred had the court made the required statement of reasons. However, the two opinions cited in support of this argument are to be distinguished from the present case. In People v. Romero, supra, 167 Cal.App.3d at pages 1151-1152, 213 Cal.Rptr. 774, no resentencing was necessary because the...
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Jordan, In re
...California Rules of Court. 1 (See People v. Lepe (1987) 195 Cal.App.3d 1347, 1349, fn. 2, 241 Cal.Rptr. 388; People v. Wychocki (1987) 188 Cal.App.3d 1063, 1065, 233 Cal.Rptr. 830.) A recent Court of Appeal decision has held, however, that the prison-delivery rule no longer is applicable in......
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...long sentence on resentencing is great enough to justify the public expense involved in resentencing. (See People v. Wychocki (1987) 188 Cal.App.3d 1063, 1067, 233 Cal.Rptr. 830; People v. Dunnahoo, supra, 152 Cal.App.3d at p. 579, 199 Cal.Rptr. 796.) In the event of no resentencing, we wil......
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...Judge Jamar for failing to state reasons for denying probation and imposing a prison term (People v. Wychocki (1987) 188 Cal.App.3d 1063, 1066-1067, 233 Cal.Rptr. 830 [opn. by King, J.]; People v. Estes (Feb. 11, 1992) A055058 [nonpub. opn. by King, J.] ), for failing to state reasons for i......