PEOPLE OF MI V EDUARDO RAMIREZ CERVANTES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 19, 2008
Plaintiff-Appellee,
v
No. 273301
Gratiot Circuit Court
LC No. 06-005171-FC
EDUARDO RAMIREZ CERVANTES,
Defendant-Appellant.
Before: Markey, P.J., and Meter and Murray, JJ.
PER CURIAM.
Defendant was convicted of first-degree criminal sexual conduct (CSC I), MCL
750.520b(1)(b), and second-degree criminal sexual conduct (CSC II), MCL 750.520c(1)(b). On
September 5, 2006, he was sentenced to concurrent prison terms of 7 to 15 years for each
conviction. Defendant appeals as of right, raising only sentencing issues. We affirm defendant’s
sentences.
Defendant first argues that he is entitled to resentencing because the trial court erred
when it scored ten points for offense variable (OV) 4 and ten points for OV 10. Since defendant
challenged the scoring of OV 10 in his motion for resentencing, we review his challenge to the
scoring of OV 10 for an abuse of discretion, People v Kimble, 470 Mich 305, 309; 684 NW2d
669 (2004); People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003), upholding
the scoring decision if there is any evidence to support it, People v Cox, 268 Mich App 440, 454;
709 NW2d 152 (2005). Although defendant also challenged the scoring of OV 4 in his motion
for resentencing, we conclude that defendant waived any challenge to OV 4 when, at the hearing
on defendant’s motion for resentencing, defense counsel agreed that she had “abandoned” her
argument regarding the scoring of OV 4 based on a report from a clinician indicating that the
victim had suffered psychological injury.1 See People v Carter, 462 Mich 206, 215; 612 NW2d
1
In any event, we would uphold the scoring of OV 4 on its merits. Evidence that the victim
suffered the traumatic experience of being sexually penetrated and otherwise molested by her
stepfather, that she went to counseling as a result, and that she expressed that defendant’s sexual
molestation of her “put [her] through a lot of stress and pain mentally,” was clearly sufficient to
support a finding that she suffered serious psychological injury requiring professional treatment.
MCL 777.34; Cox, supra at 454.
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144 (2000) (defining waiver as “the intentional relinquishment or abandonment of a known
right”).
Ten points should be scored for OV 10 where the defendant exploited a victim’s youth,
“a domestic relationship,” or the defendant’s “authority status.” MCL 777.40(1)(b). In this
regard, “exploit” means “to manipulate a victim for selfish or unethical purposes.” MCL
777.40(3)(b). However, the mere existence of one of the relevant factors, i.e., a victim’s youth, a
domestic relationship, or authority status, does not automatically equate with victim
vulnerability. MCL 777.40(2). Here, however, there was evidence of all three factors.
According to the victim’s trial testimony, defendant penetrated her vagina with his finger
while she was sleeping. In our view, one could reasonably infer that defendant most likely knew
that the victim was or would be awakened by his conduct, which is further supported by the
victim’s testimony that she “jolted” when defendant penetrated her vagina. From this, it is
reasonable to conclude that defendant exploited the victim’s young age, his domestic relationship
with her as residents of the same household, and his authority status over her as her stepfather, to
commit the sexual penetration in reliance on her intimidation, fear, or deference to him which
would prevent her from resisting or reporting the penetration. Accordingly, there is ample
evidence in the record to support the trial court’s scoring decision. Therefore, the trial court did
not abuse its discretion when it scored ten points under OV 10. Cox, supra at 454.
Defendant next argues that the scoring of OV 4, OV 10 and OV 13 were improperly
based on facts not proven to the jury beyond a reasonable doubt, in violation of Blakely v
Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).2 Our Supreme Court has
definitively ruled that the limitation imposed on factual findings by Blakely applies only to
determinate sentencing schemes, and thus does not affect the indeterminate sentencing scheme
embodied in the Michigan sentencing guidelines. People v McCuller, 479 Mich 672, 676-681;
739 NW2d 563 (2007).
Defendant’s final argument on appeal is that he is entitled to resentencing on his CSC II
conviction because the trial court erred when it both failed to score sentencing guidelines for that
offense, resulting in a minimum sentence outside the appropriate sentencing guidelines range,
and imposed a sentence that violated the principles of proportionality. Whether the trial court
was required to score the sentencing guidelines for defendant’s CSC II conviction where it
scored the guidelines for his CSC I conviction, and the sentences for the two crimes are
concurrent, is a question of law which we review de novo. McCuller, supra at 681.
As previously noted, the trial court sentenced defendant to concurrent sentences for his
CSC I conviction, a class A felony, and his CSC II conviction, a class C felony. MCL 777.16y.
The trial court was therefore only required to score the sentencing guidelines for defendant’s
CSC I conviction (his highest crime class felony conviction). MCL 777.21(2); MCL
2
In Blakely the United States Supreme Court struck down, as violative of the Sixth Amendment,
a determinate sentencing scheme in which the sentencing judge was allowed to increase the
defendant’s sentence on the basis of facts that were not reflected in the jury’s verdict or admitted
by the defendant. Blakely, supra at 296.
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777.14(2)(e); People v Mack, 265 Mich App 122, 127-129; 695 NW2d 342 (2005).3
Accordingly, the trial court did not err when it failed to score sentencing guidelines for
defendant’s CSC II conviction. And as noted in Mack, whether defendant’s CSC II sentence is
proportional is not at issue because it did not exceed the concurrent sentence imposed for
defendant’s CSC I conviction. Mack, supra at 126-129.
Affirmed.
/s/ Jane E. Markey
/s/ Patrick M. Meter
/s/ Christopher M. Murray
3
Defendant argues that Mack was wrongly decided, citing People v Johnigan, 265 Mich App
463; 696 NW2d 724 (2005). Although the lead opinion in Johnigan questioned the holding in
Mack, that view was not adopted by a majority of the panel. See Johnigan, supra at 478-479
(opinion by SCHUETTE, J.) and 479-482 (opinion by O’CONNELL, J.). Mack is therefore
binding. Additionally, Johnigan’s lead opinion acknowledged that the result reached in Mack
would be correct if the Legislature were to have referenced section 14 of chapter XI (MCL
771.14) instead of section 14 of chapter IX (MCL 769.14) in MCL 777.21(2). Johnigan, supra
at 470-471. Since the decisions in Mack and Johnigan, the Legislature has amended MCL
777.21(2), effective January 9, 2007, to do just that. The newly amended statute now provides,
“[I]f the defendant was convicted of multiple offenses, subject to section 14 of chapter XI [MCL
771.14], score each offense as provided in this part.”
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