Metropolitan News-Enterprise


Tuesday, September 14, 2021


Page 1


Court of Appeal:

Sentence of Seven Years, Fours Months for 83-Year-Old Not Cruel, Unusual Penalty  


By a MetNews Staff Writer


Sentencing an 83-year-old man to seven years and four months in prison for failing to register as a sex offender upon his release from prison and failing to file a change-of-address form was not cruel and unusual punishment, Div. Six of the Court of Appeal for this district held yesterday,

Presiding Justice Arthur Gilbert wrote the opinion, which was not certified for publication. The jurist rejected the contention of the appellant, Fredric Byron Small, that at his age, what he received was a life sentence.

In his opinion affirming the sentence meted out by San Luis Obispo Superior Court Judge Jacquelyn H. Duffy, Gilbert said:

“Small has not made a sufficient factual showing to identify the various facts that support a claim of an unconstitutional sentence. Advanced age with health conditions does not automatically and categorically immunize that group from punishment for crimes. If it did, it would have the impact of encouraging a certain demographic to commit crimes with impunity. This would undermine the integrity of the criminal justice process.

“Small is a recidivist with two prior serious felony convictions. The probation report reflects that he has a significant prior criminal record extending back from the 1950’s, 1960’s, 1970’s, 1980’s, 1990’s, and 2009, and that there are no factors in mitigation. Moreover, Small has not shown how a sentence he agreed to in his plea agreement is an unconstitutional sentence.”

Inaccurate Characterization

Gilbert added:

“Moreover, Small’s claim that he is subject to a life sentence is not accurate. As the People note, the trial court imposed a seven year four month sentence. But it then gave him presentence credits for 1,645 days. The People have calculated that Small ‘is eligible for parole this December.’ Small has not shown that he received an unconstitutional sentence.”

Small also argued that Duffy erred in declining to allow him to change his plea. At a hearing on April 6, 2020, he told her that his lawyers coerced him into pleading guilty.

He related that he has a bipolar condition that switches on and off, and noted he spent eight years at Atascadero State Hospital for a psychiatric condition. The defendant explained:

“So when I talk to the attorneys and they said just plead guilty, plead guilty. I said, ‘I want a trial because I’m innocent.’ I’m innocent in the first case, the second case, the third case. So it was coercion on the part of the attorneys and...I feel that I didn’t understand it and I wasn’t capable of making a true-true plea.”

A lawyer for Small responded:

“I have to represent to the court there’s not a basis, a legal basis for a withdrawal of plea.”

Conflicting Statements

Gilbert said that “there was a conflict between what Small claimed and what his attorney stated,” and remarked:

“Small has not shown why the trial court could not reasonably resolve the conflicting claims against him. The trial court exclusively decides the credibility of the parties before it….We do not decide credibility issues.”

For that reason, and based on other circumstances, the presiding justice said, Duffy did not abuse her discretion in disallowing a change of plea.

The case is People v. Small, B306178.


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