P. v. White

Filed 2/5/09 P. v. White CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed as modified.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * * *

Appellant Amos Lee White was convicted of two counts of forcible lewd acts upon a child under the age of 14. He appeals the resentencing hearing that followed this courts second remand for resentencing. We are therefore reviewing the trial courts sentencing determinations for the third time. Our first nonpublished opinion, People v. White (B185003), was filed on September 12, 2006(White I). Our second nonpublished opinion, People v. White (B196920), was filed on December 3, 2007 (White II). We have previously granted judicial notice of the records on the two prior appeals.

Appellant contends that the trial court abused its discretion at the third sentencing hearing when it refused to strike one or both of his prior serious felony strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The parties also dispute imposition of a penalty assessment and court security fee. We find no abuse of discretion in the Romero ruling, strike a $1,000 penalty assessment, increase the court security fee from $20 to $40, and otherwise affirm.

BACKGROUND ANDPROCEDURAL HISTORY

The two counts of child molestation involved B.H., appellants great-niece. The crimes occurred in August 2000, when B.H. was seven years old, and appellant was 49 years old. B.H. was 12 years old in June 2005, when she testified at the trial.

B.H. testified that, while she was alone with appellant in the garage, he asked her to stand on a stool and reach upward for a light bulb. When her hands were raised, he grabbed her wrists and tied them with a rope. He then danced around her, put his head on her chest, and held his body against hers as if they were dancing at a prom. He also sucked on her cheek. He stopped when another person entered the garage.

Two weeks or two months later, on an evening when appellant was babysitting B.H., the child awoke to find appellant on top of her, under the blanket. His shirt was off, and he had pulled her pajama bottoms down to her ankles. He ignored her screams to get off. Holding her arms above her head, he kissed her lower body, below her belly button. Appellants adult daughter, W.W., entered the bedroom at that point. W.W. pulled back the blanket and saw what was happening. She made appellant get off of B.H., called the police, and made a statement to an officer.

The jury convicted appellant of two counts of forcible lewd conduct upon B.H., a child under the age of 14. The jury could not reach a verdict on a third count pertaining to B.H.s sister, who was two years older than B.H. The trial court declared a mistrial with respect to that count and subsequently dismissed it. In a bifurcated court trial regarding prior conviction allegations, the court found appellant had suffered two prior serious felony convictions within the scope of the Three Strikes law and Penal Code section 667, subdivision (a)(1). Appellant was sentenced to 60 years to life in prison.

On the first appeal in this action (White I), this court affirmed the conviction but vacated the sentence and remanded for reconsideration of appellants Romero motion. We wrote that the trial courts explanation of its denial of the motion suggests it did not discharge its duty under Romero to consider the interests of society. Appellant was 49 years old at the time of the offenses and 54 at the time of sentencing. His strike convictions dated from 1969 and 1971, when appellant was 17 and 19, respectively. In the 29 years between the 1971 conviction and the current offenses, he suffered only two convictions, in total, and only one felony, in 1989.^[[1]^] Given the mandatory consecutive sentencing under Penal Code section 667.6, subdivision (d) and the mandatory 10 years of enhancements under Penal Code section 667, subdivision (a), appellant was subject to an aggregate term of 16 to 26 years if sentenced outside of the Three Strikes law, or 22 to 42 years if sentenced to a second strike term. The trial courts explanation suggests it failed to consider whether these sentencing alternatives would adequately protect society by providing a lengthy sentence for very serious offenses without verging into excess by imposing a term guaranteeing appellant will die in prison. (White I, supra, B185003 [at p. 9].)

On remand, the trial court reconsidered its ruling on the Romero motion, but again denied it and imposed the same sentence of 60 years to life.

We reviewed the second sentencing hearing in White II, supra,B196920. We found that the trial court based its analysis on an extremely significant factual error: it believed appellants convictions pertained to different victims. (White II, [at p. 6].) Given the fundamental factual error of the trial court and the courts great reliance upon its factual misconception, we conclude[d] the trial court abused its discretion. (White II,[at p. 7].) We therefore again reversed and remanded for reconsideration of the Romero issue.

The discussion part of White II ended with these words:

We do not hold that a denial of appellants Romero motion will in all cases be an abuse of discretion, but simply that the trial court must base its decision upon an accurate version of the facts and must also consider the adequacy of a sentence under Penal Code sections 667.6, subdivision (d) and 667, subdiv[i]sion (a), rather than the Three Strikes law for appellant, which it failed to do on the prior remand. Following a thorough consideration of all pertinent factors and the true facts, the trial court is free to exercise its discretion in accordance with Romero and its progeny. (White II, supra,B196920 [at pp. 7-8].)

At the third sentencing hearing, the following discussion occurred on the Romero issue:

THE COURT: Mr. Slevin [defense counsel], youve read the Court of Appeals opinion?

MR. SLEVIN: I have, Your Honor.

THE COURT: And Mr. Burnley [the prosecutor], you have also read the Court of Appeals opinion?

MR. BURNLEY: Yes, Your Honor.

THE COURT: It is my understanding, the gist of the opinion is that the court abused its discretion by considering multiple victims as a factor, because one of the two victims in this particular case, the charge [that] was found not guilty by the jury, cannot be considered for purposes of sentencing.

MR. SLEVIN: Correct, Your Honor.

THE COURT: So I have to reassess the motion to strike the strikes in light of a one-victim case and not a two-victim case. [] Is that your reading of the case as well, Mr. Slevin?

MR. SLEVIN: That [it] is, Your Honor.

THE COURT: Thank you. Is that your reading of this as well, Mr. Burnley?

MR. BURNLEY: Yes, Your Honor.

THE COURT: All right. Let me inquire. Mr. Slevin, do you wish to be heard?

MR. SLEVIN: Just briefly. [] I would suggest, after reviewing the Court of Appeals decision, the court strike the prior strikes, which are ancient, no matter how you look at them, and it occurred when he was quite young. [] And given the testimony in the trial, I would urge the court to sentence him to the determinant term, perhaps as indicated by the Court of Appeals [sic], somewhere between 16 and 22 years.

THE COURT: I thought it was more like 22 and 42.

MR. SLEVIN: I think its 22 and 42 if its a second strike.

THE COURT: Oh, okay. If I strike both strikes.

MR. SLEVIN: If you strike both strikes. But I believe both strikes are, in essence, ancient.

THE COURT: All right. Anything else you wish to tell me?

MR. SLEVIN: No, Your Honor. Submitted. Thank you.

THE COURT: Give me a moment, Mr. Burnley, before I invite you to comment. [] Mr. Burnley?

MR. BURNLEY: Your Honor, its the Peoples position that the court should not strike the defendants ‑‑ one or both of the defendants prior strikes based upon the relevant inquiry that the court should have to undertake pursuant to Peopl[e] [v.] Williams [(1998) 17 Cal.4th 148]. [] And I understand that the Court of Appeals [sic] ruled that there were not two victims. But I think its important to note that there was one victim, and there were two separate acts of molestation which occurred on two separate occasions. And the People feel that that is an important factor. [] The court ‑‑ when the defendant was originally sentenced, the court went through the circumstances in which the defendant took advantage of a position of trust and confidence. [] And for the one victim that the defendant did molest, he took advantage of that position of trust and confidence, not one time but two separate times. [] And given the facts of the case and the defendants prior record, the People feel that striking any of the strikes would be inappropriate. And I would submit.

THE COURT: Mr. Slevin, I will give you the last ‑‑ do you wish to say anything further?

MR. SLEVIN: No, Your Honor. Thank you.

THE COURT: This case has been remanded for sentencing because the Court of Appeal felt that this trial judges decision on the Romero motion was not clear and abused its discretion. Ill lay out the basis for my decision in, again, denying the Romero motion.

I agree with the Court of Appeal that the age of the prior conviction is one factor that is in favor of the defendant. I had said the same thing in both earlier sentences.

However, the nature of the current and prior offense, using California Rules of Court, are circumstances that disfavor the defendant. Each of these factors individually outweighs the age of the prior conviction as the basis for striking the strike or strikes.

One, the crime involved great violence or other degree of viciousness or callousness. Here, the defendant molested his relative or committed a lewd act on a relative. He breached his trust to his family members that hes entrusted to protect.

Two, the victim is vulnerable. The victim is a minor; the defendant is an adult.

Three, the ma[nn]er in which the crime was committed indicates planning. Here, the defendant waited until the other adults were not around before he committed the crime against the minor.

Four, the defendant took advantage of a position of trust or confidence to commit the offense. As I recall, he was the baby-sitter and was in a position of trust in which he breached.

In weighing this case as a one-victim case, I am still convinced and exercise my discretion by weighing any individual factor against the age of the prior conviction or convictions. I am convinced that any of the two strikes should not be stricken and decline to do so.

The Court [of] Appeal suggested in their opinion that to treat this as a second strike case will garner the defendant between 22 to 42 years; whereas, as a third striker, he will die in prison. This judge is not concerned.

The spirit of the Three Strikes Law as passed by the voters and reaffirmed by the voters in recent years through the rejection of a proposition modifying the original Three Strikes Law. [Sic.] This tells this judge that a career criminal that has not learned from his two prior strike offenses should stay in prison for the rest of his life. I weighed what he has done to the minor, his past criminal conduct and the public policy of protecting society against the suggestion of giving him a break for a 22 to 42-year sentence so that he may die in civil society instead of prison. It is this trial judges opinion that I am the trustee of the law of the people and not here to cut someone a break simply because he may die in prison as a result of this sentence.

This is the third time that Ive sentenced the defendant. The Romero motion and reconsideration thereto is denied. If the Court of Appeal feels compelled to mandate striking one or both of the strikes because they disagree with my assessment, they should do so with a mandate, and Ill abide by their decision to strike one or both of the strikes through a mandate.

That being the case, that is the decision of this court.

The court then imposed the same sentence as before: a total of 60 years to life, based on consecutive sentences of 25 years to life on the two counts, plus 10 years for two 5-year enhancements pursuant to Penal Code section 667, subdivision (a)(1). The court also gave credit for time served. Appellant filed another notice of appeal.

DISCUSSION

1. Refusal to Strike One or Both of the Prior Strikes

Our opinions in White I and White II contained this summary of the applicable principles:

A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. (Pen. Code, 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising this power, the trial court must consider the defendants background, his constitutional rights, the nature of the current offense, and the interests of society. (Id. at pp. 530-531.) The court should not dismiss or vacate a strike unless it concludes that the defendant may be deemed to be outside the anti-recidivist spirit of the Three Strikes law. (People v. Williams [, supra,] 17 Cal.4th [at p.] 161.)

The trial courts decision is reviewed deferentially. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) The court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) The Three Strikes law not only establishes a sentencing norm, it carefully circumscribes the courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances, such as where the court was unaware of its discretion or considered impermissible factors. (Id. at p. 378.) Where the record is silent . . . or [w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. [Citation.] Because the circumstances must be extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. [Citation.] (White I, supra, B185003 [at pp. 7-8]; see also White II, supra,B196920 [at pp. 3-4].)

In applying the above principles, we observe that the trial court clearly did not believe that the circumstances of this case justified a dismissal of any appellants prior strikes. As this court required in White II, the trial court utilized an accurate version of the facts and considered the adequacy of a sentence other than a Three Strikes law penalty, as it exercised its discretion on the Romero issue. The trial court was free to exercise its discretion, following consideration of the pertinent factors. (White II, supra,B196920 [at pp. 7-8].) Under People v. Carmony, supra, 33 Cal.4th 367, we find no abuse of discretion in the ruling that it made.

2. The Penalty Assessment and Court Security Fee

In imposing sentence, the trial court added a $1,000 penalty assessment pursuant to Penal Code section 1464 and Government Code section 76000. Both sides agree that the assessment must be stricken.

The trial court also ordered a $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1), which mandates that fee for every conviction for a criminal offense. Respondent contends that the fee should have been $40, as there were two counts of child molestation. Appellant counters that the issue was waived, as the People did not previously raise it. (People v.Tillman (2000) 22 Cal.4th 300, 302-303.) Appellants argument lacks merit, as the fee was mandatory, so the People can raise the issue for the first time on appeal. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1154, 1157.) We modify the judgment to include a $20 fee for each of appellants crimes. (People v. Schoeb (2005) 132 Cal.App.4th 861, 866; People v. Crabtree (Jan. 7, 2009, B192743) ___ Cal.App.4th ___ [2009 WL 32931, 23]; see also People v. Alford (2007) 42 Cal.4th 749, 752.)

DISPOSITION

We direct the trial court to modify the abstract of judgment to (a) strike the $1,000 penalty assessment pursuant to Penal Code section 1464 and Government Code section 76000, and (b) impose two $20 security fees (for a total of $40) under Penal Code section 1465.8. The amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P. J.

ONEILL, J.*

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[1] The record shows that one offense was a misdemeanor conviction in 1975 for drunk driving. The other was a felony conviction in 1989 for transporting or selling narcotics.

* Judge of the Ventura County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.