P. v. Ramirez

Filed 3/27/07 P. v. Ramirez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 for the County of Los Angeles. Thomas C. Falls, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Ricardo Ramirez appeals from the judgment entered following his conviction of multiple counts of sexual abuse of a minor under the age of 14 years. He contends the trial court erred in sentencing him pursuant to Penal Code section 667.61.[1] We affirm.

FACTS

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that on June 15, 2004, defendant lived in a house with several other people including his 15-year-old cousin, J.M., and J.M.s father. That day, J.M. found a videotape in defendants room that showed defendant having sex with Jane, a 7 or 8-year-old girl J.M. recognized as the niece of a friend. J.M. showed the tape first to his uncle and then to his father. That night, they turned the tape over to the police.

Janes mother, K.O., testified that she and Jane lived in a house with K.O.s mother, step-father and siblings. K.O. and Jane shared a room and a bed. Defendant was related to K.O. by marriage and was also a close family friend. As such, he was a frequent visitor to K.O.s home. Defendant also baby-sat both for Jane and for K.O.s younger siblings almost every day. He did not have a key to the house and was usually let in by K.O.s 14-year-old brother. Defendant was often alone with Jane, sometimes taking her on outings. K.O. did not know defendant was sexually abusing Jane, and K.O. did not give defendant permission to enter her home or her bedroom to do so. K.O. saw defendant with video equipment just once, about a month prior to the discovery of defendants actions. K.O. did not know that he was videotaping Jane when he came over to baby-sit.

In a search of defendants room, police found a video recorder which contained a video cassette of defendant having sex with Jane, as well as computer diskettes containing similar images. It appeared that the tapes depicted defendant sexually abusing Jane on multiple occasions, including many times in the bedroom Jane shared with her mother.

PROCEDURAL BACKGROUND

Defendant was charged with 52 counts of sexual abuse, occurring between January 1, 2001 and June 16, 2004, and comprised of multiple violations of various Penal Code sections including section 288, subdivision (a) ( 288(a)) (lewd or lascivious acts on a child under the age of 14 years).[2] As to 18 of the section 288(a) counts, defendant was charged under former section 667.61, subdivisions (a) and (d) ( 667(a), (d)), with committing the offenses during a burglary.

Following a court trial, defendant was found guilty of many but not all the charges, including 14 counts of violating section 288(a). As to those counts, the trial court also found true the section 667.61 allegation. Defendant was sentenced to a total of 50 years in prison comprised of consecutive 25 years to life on two counts ( 667.61(a), (d); 288(a)); sentences imposed on the remaining counts were either concurrent or stayed pursuant to section 654.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendants sole contention on appeal is that he should not have been sentenced pursuant to former section 667.61(a), which mandated a 25 years to life sentence for a violation of section 288(a) when committed during the commission of a burglary. He asserts: [w]hile [defendant] may have hyper technically violated the letter of section 667.61, it is clear he did not violate its spirit. As we understand it, defendant makes three arguments in support of this contention: (1) the more severe sentence mandated by section 667.61 should be imposed only on perpetrators who violate section 288(a) after committing a burglary by breaking and entering the victims home, not those who enter with permission albeit with a felonious intent; (2) although he was not technically a relative or member of Janes household as that phrase was defined in section 667.61s mandatory sentencing provision, his status as a close family friend and regular babysitter brings him within the spirit of that exception; and (3) he was denied equal protection as a result of the application of section 667.61 under the circumstances of this case. We disagree.

We begin with the language of the statute at the time defendant was sentenced. In pertinent part, section 667.61(a) provided: A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for life and shall not be eligible for parole for 25 years . . . . (Italics added.) Under subdivision (c)(7), section 288(a) is a specified offense unless the defendant qualifies for probation under subdivision (c) of section 1203.066.[3] Subdivision (d)(4) named commission of a violation of section 288(a) during a burglary of an inhabited dwelling as a specified circumstance.

Section 667.61 is part of the sentencing scheme that has become known as the One Strike Law, which was enacted to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 26 (1993-1994 1st Ex. Sess.) as amended May 4, 1994, p. 15.) Section 667.61 mandates indeterminate sentences of 15 or 25 years to life where the nature or method of the sex offense place[d] the victim in a position of elevated vulnerability. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 26 (1993-1994 1st Ex. Sess.) as amended May 25, 1994, pp. 2-3, italics added.) (People v. Palmore (2000) 79 Cal.App.4th 1290, 1296.)

Section 667.61, subdivision (d)(4) reflects a legislative intent to deter by harsher punishment those who burglarize homes and exploit the vulnerability of people inside to commit sex offenses. (People v. Alvarado (2001) 87 Cal.App.4th 178, 187.) The statute expressly divests trial courts of authority to avoid these severe sentences: it provides that courts are barred from exercising their traditional discretion to strike any of the triggering circumstances specified in the One Strike law. (People v. Hammer (2003) 30 Cal.4th 756, 761 (Hammer); see  667.61, subd. (f).)

a.      Defendant Comes Within the Spirit of Section 667.61

Here, defendant does not challenge the sufficiency of the evidence to support the finding that he violated section 288(a) during the commission of a burglary. After all, it is well settled that [a]nyone who enters a building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. [Citation.] Thus, the current law is that one may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter. [Citations.] (People v. Nunley (1985) 168 Cal.App.3d 225, 232.) The evidence that defendant did not have a key to Janes home, did not store any clothes there, did not sleep there and did not pay rent, was sufficient to establish that he did not have a possessory interest in the home. From the evidence that he brought with him the video equipment that he used to record his sexual abuse of Jane, it is reasonable to infer that he entered Janes home with the intent to commit that felony. Nevertheless, defendant argues that none of the claimed reasons for the severe enhancement are present. The entries into neither the home nor Janes room were sudden or unexpected.

That defendant did not physically break into Janes home in order to sexually abuse her, but was an invited guest entrusted with her care, does not bring him outside the spirit of section 667.61. On the contrary, it is the fact that defendant committed the offenses in Janes home a location where she was particularly vulnerable that makes his crime the kind to which the statue was intended to apply. (See People v. Alvarado, supra, 87 Cal.App.4th at pp. 186-187 [section 667.61 reflects legislative intent to deter by harsher punishment those who burglarize homes and exploit the vulnerability of people inside to commit sex offenses]; see also People v. Palmore, supra, 79 Cal.App.4th at p. 1296 [It is beyond dispute that where a sex offense occurs in a commercial establishment during hours it is closed, the lone victim is far more vulnerable than if the business were open. The victim is isolated, and his or her cries for help are less likely to be heard by others. This isolation may embolden the perpetrator to prolong the attack, further increasing the victims vulnerability].)

b.      Defendant Does Not Come Within the Exception for Household Members

We are also not persuaded by defendants suggestion that, while he does not come within the spirit of section 667.61s severe sentencing scheme, he does come within the spirit of the exception to that sentencing scheme, for a defendant who qualifies for probation under subdivision (c) of Section 1203.066. ( 667.61(c)(7).)[4] The trial court expressly found defendant was not eligible for probation because he was not a member of Janes household within the meaning of section 1203.066, subdivision (c)(1). (See People v. Wutzke (2002) 28 Cal.4th 923 [ 1203.066(c)(1) did not apply to defendant with grandfatherly bond to victims resulting from his long relationship with their grandmother, but no legal, blood or residential connection to the victims].) Moreover, the policy considerations behind the family member exception do not apply to defendant. Nothing indicates that a mandatory prison sentence for defendant in this case would have an adverse impact on Jane and her family.[5]

c.       Defendant Was Not Denied Equal Protection

Also without merit is defendants argument that his right to equal protection was violated because he was similarly situated but more severely punished than one who hypothetically commits the same offense against the same victim, but not in the victims home, the triggering circumstance for section 667.61.

 The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. [Citation.] (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, italics in original.)

People v. Wutzke, supra, 28 Cal.4th at page 943 is instructive. In that case, the defendant was convicted of sexually molesting the granddaughters of the woman with whom he lived for many years; although he had a grandfatherly bond with the victims, he had no blood, legal or residential connection with them. He was sentenced pursuant to section 667.61 after the trial court rejected his contention that he satisfied the subdivision (c)(7) exemption for persons eligible for probation under section 1203.066(c)(1) because he was the functional equivalent of a relative to the victims. Our Supreme Court rejected the defendants argument that failure to apply the exception to all close quasi-familial relationships violated his equal protection rights. It reasoned that the defendant was not similarly situated for sentencing purposes to relatives and household members because there is evidence of a unique dynamic between underage victims and the class of sexual offenders targeted by the statute, such that special measures are needed to prompt the reporting of such crimes in the first place. (Id. at p. 944.)

Here, our inquiry begins by determining whether persons who violate section 288(a) but do not do so during a burglary are similarly situated to persons who do so during a burglary. We conclude that they are not. While both have committed the same offense, the person who does so during a burglary has exploited the increased vulnerability of a victim inside her own home. (See People v. Alvarado, supra, 87 Cal.App.4th at pp. 186-187.) As such, that person is appropriately subject to a more severe sentence.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J. FLIER, J.

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[1] Section 667.61 was amended effective November 8, 2006. (Initiative Measure Prop. 83,  12, operative if approved at November 7, 2006, election.) Defendant was sentenced on January 14, 2005. Accordingly, we discuss the version of section 667.61 in effect at the time of defendants sentencing.

[2] All further undesignated statutory references are to the Penal Code.

[3] Like section 667.61, section 1203.066 was amended subsequent to defendants sentencing hearing. At the time of sentencing, section 1203.066, subdivision (a)(8) proscribed probation for any person who, in violating Section 288 . . . has substantial sexual conduct with a victim who is under 14 years of age. Subdivision (c) of section 1203.066 provided an exception to the proscription against probation if the trial court made various findings including that the defendant is the victims natural parent, adoptive parent, stepparent, relative, or is a member of the victims household who has lived in the victim's household. ( 1203.066, subd. (c)(1).)

[4] The current version of the statute contains no such exception.

[5] The rationale for the family member exception was described by the court in Hammer, supra, 30 Cal.4th at pages 769-770, as follows:  The exception to mandatory imprisonment for qualifying [intra]family sexual offenders is premised on the rationale that (1) in contrast to pedophiles who have an exclusive lifelong attraction to children, some adults with age-appropriate mates regress by molesting young family or household members for situational or opportunistic reasons, (2) such molesters can successfully reform if they receive both punishment and treatment, and (3) mandatory prison sentences, as opposed to jail time and probation, could do more harm than good in some [intra]family molestation cases, as the victim could feel a sense of guilt for bringing shame on the family or causing the household to dissolve, and loved ones who are emotionally and/or financially dependent on the molester could blame or even abandon the victim, which in turn could deter victims and their families from reporting the crime, from cooperating with law enforcement officials, and from participating in counseling to repair the damaged relationship.