Sandoval

On July 17, 1987, we filed an opinion in this case. Since that time, we have received and considered a petition for rehearing and an answer thereto. We granted rehearing and reheard oral argument. We now issue our opinion.

Respondent Jesus Sandoval was convicted following a court trial of oral copulation with a child under the age of 14, and more than 10 years younger than he, in. violation of Penal Code section 288a, subdivision (c). The court found true the allegation that respondent occupied a position of special trust and committed an act of substantial sexual conduct. (Pen. Code, § 1203.066, subd. (a)(9).) Respondent was sentenced to the low term of three years. The judgment was affirmed on appeal. On return of the remittitur, the trial court vacated respondent’s three-year sentence, suspended criminal proceedings, and granted probation conditioning its grant of probation upon respondent serving the first fifty-two days in county jail. The court then gave respondent credit for 52 days time he had already served.

The People appeal from that order, contending: “A. The trial court erred in failing to follow the law of the case set by this court (holding the mandatory…

I also would reverse, but for reasons which differ from those of the majority. The majority places its reliance upon the law of the case. The first Sandoval opinion, quoted by the present majority, explicitly stated that the trial court was apparently aware of its power to consider whether the statutorily mandated state prison sentence might constitute cruel and unusual punishment. Based on this supposition the court, in the *489 prior opinion, stated that the trial court at sentencing had determined the question of cruel and unusual punishment adversely to appellant.

Based on the events from which the current appeal has been taken, the prior appellate decision simply was mistaken. Upon the initial remand, the trial judge expressly said that at the earlier sentencing “I was not satisfied that I did have that power [to determine if a prison sentence was cruel and unusual] and then I endeavored to have the appellate court exercise that power, but it’s clear from the decision in this case that the appellate court is putting the ball back into my side of the net and is telling me that it was my obligation to make that determination and make a ruling.” The trial court then proceeded…

McCLOSKY, J.

On July 17, 1987, we filed an opinion in this case. Since that time, we have received and considered a petition for rehearing and an answer thereto. We granted rehearing and reheard oral argument. We now issue our opinion.

Respondent Jesus Sandoval was convicted following a court trial of oral copulation with a child under the age of 14, and more than 10 years younger than he, in violation of Penal Code section 288a, subdivision (c). The court found true the allegation that respondent occupied a position of special trust and committed an act of substantial sexual conduct. (Pen. Code, § 1203.066, subd. (a)(9).) Respondent was sentenced to the low term of three years. The judgment was affirmed on appeal. On return of the remittitur, the trial court vacated respondent's three-year sentence, suspended criminal proceedings, and granted probation conditioning its grant of probation upon respondent serving the first fifty-two days in county jail. The court then gave respondent credit for 52 days time he had already served.

The People appeal from that order, contending: "A. The trial court erred in failing to follow the law of the case set by this court (holding…