Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Super.Ct.No. SWF016681. F. Paul Dickerson III, Judge. Affirmed.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Sixty-two-year-old John Michael Mahoney (defendant) appeals as an abuse of discretion the trial court’s decision not to grant his Romero motion to dismiss a prior serious and violent felony. Finding no abuse of discretion, we affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTS AND PROCEDURAL HISTORY
Sometime in 1992, defendant’s ex-wife reported to police that he had sexually molested her older daughter, then 19. The daughter confirmed that from the time she was eight years old until she was 14, defendant had repeatedly molested her. The molestation consisted of his exposing his penis, making her pull down her pants to expose her vagina, and then making her masturbate him with her hands until he ejaculated or forcing her to orally copulate him. Defendant told her that if she told anyone about what he was doing, he would kill her mother. The victim had not in fact said anything about the molestations until her mother told her that defendant had been molesting her younger half sister. The younger girl revealed that defendant had molested her repeatedly, and two neighbor friends of hers, from the time she was six or seven years old. Her father would show the three girls pornographic movies, then expose his penis and have them masturbate him and/or orally copulate him. On one occasion, defendant had his daughter lie on the bed while he “put his dick in my private part.” On another occasion, he gave one of the neighbor girls a dildo and told her to go into the bathroom and put it inside herself “to make her bigger.”
By calculation, these acts would have occurred between 1981 and 1987.
These molestations were reported to have occurred between 1990 and 1991.
In September 1993, defendant was convicted of two counts of forced oral copulation of a child under 14 (Pen. Code, § 288, subd. (b)(1)), and was sentenced to 16 years in state prison. He was also required, pursuant to the provisions of section 290, to register for life as a sex offender. At the time of defendant’s conviction, section 290 included a requirement that a registrant notify law enforcement of a new address within 10 working days of any move. (§ 290, former subd. (f).) Defendant was released sometime in 2001 after serving about half of his sentence. In July of that year, he was picked up on a parole violation and returned to prison “[t]o finish [his] term.” But defendant did not finish his term. At some point, he was again released, only to be arrested in April 2002 for a second parole violation and once more returned to prison “[t]o finish [his] term.” Defendant was released early a third time and then committed the current offense.
All further statutory references are to the Penal Code unless otherwise indicated.
The time limit to reregister is now five working days. (§ 290, subd. (b).)
We are unable to see the exact dates of defendant’s releases in the record and estimate them based on his rearrest dates.
On February 21, 2006, defendant completed and signed a Department of Justice form 8047, giving his address as 39415 El Toro Road in the unincorporated area of Anza and acknowledging his obligation to register with law enforcement within five days should he relocate. On April 9 defendant was evicted from the rented trailer at the El Toro Road address in Anza where he had been living with his caretaker/girlfriend Katherine Bianco. After the eviction, defendant moved to San Jacinto, but did not reregister with law enforcement and did not make an appointment to do so.
Defendant was arrested on May 16, 2006, as he left the Department of Motor Vehicles office in Hemet. After waiving his Miranda rights, defendant told the arresting officer that he had been “kicked out” of the Anza trailer and admitted that he had not reregistered as a sex offender when he moved to San Jacinto.
Miranda v. Arizona (1966) 384 U.S. 436.
An amended information filed November 2, 2006, charged defendant with failure to register as he was required to do under section 290 and based on his 1993 felony child molestation convictions. The information further alleged that the two prior convictions were serious and violent felonies within the meaning of section 667, subdivisions (c) and (e)(2), and section 1170.12, subdivision (c)(2). During plea negotiations, defendant turned down an offer of 32 months, apparently because he believed he had an extra day in which to register.
On the day trial was to begin, July 2, 2007, and after the jury was selected, defendant changed his plea to guilty and admitted the priors. The court referred defendant to the probation department for a presentencing report.
Defendant first told the probation officer that he had not reregistered because he was “scared.” Then he said he “forgot.” He accepted full responsibility for failing to register, but attributed his actions to his having recently had a series of strokes. The strokes, he explained, affected his ability to keep track of dates and times. He said he had also had a heart attack and was taking a lot of medication. Defendant hoped the court would grant his Romero motion and dismiss one of his strikes. He did not believe that his offense fell within the spirit of the “Three Strikes” law or that it warranted a sentence of life imprisonment. His original offenses, he claimed, had arisen “out of the same set of circumstances.” Defendant explained that health problems had kept him from completing the two-year perpetrator counseling program he was supposed to take after he was released on parole. He said his second parole violation had resulted from a “paperwork mix-up.”
On July 5, 2007, defendant filed a Romero motion asking the court to dismiss one of his prior strike allegations. His motion argued that he fell outside the spirit of the Three Strikes law; that his recent offense was nonviolent and without a victim; that despite his failure to register, he was always available to law enforcement by virtue of having regularly received disability benefits from the state; and that he was a very sick man who, if he received a six-year sentence as a second strike offender, would likely be too old and weak to offend again upon release and so would not pose a continuing danger to society.
In opposition, the People reiterated the details of defendant’s 1993 sex crimes as well as of his recent failure-to-register offense and provided the court with a copy of his lengthy criminal history going back to 1965. The prosecutor argued that defendant was not in fact weak and debilitated, that his phone conversations with Bianco from jail demonstrated that he was a continuing threat to society, and that his failure to register posed a risk to the young children near whom he lived at the trailer park in Anza because their parents would not know of the need to protect them from a sexual predator.
At the sentencing hearing on August 3, 2007, the trial court heard argument from defense counsel and the prosecutor. Defense counsel argued that her client was very ill and that he had moved from the trailer in Anza solely for the purpose of taking care of Bianco’s terminally ill father, not to avoid or escape registration requirements; he was, counsel maintained, a very good-hearted person who had helped a lot of other people in the community.
In response, the prosecutor pointed out that defendant had allegedly also been ill following heart attacks when he committed the original sex crimes; that the court could see for itself that he was a large man who did not appear to be weak and frail; and that his failure to complete the counseling program showed that he considered himself above the law. The prosecutor submitted evidence that after his second parole violation, defendant had not been released after only three days in custody, as he had told the probation officer, but after 60 days.
The prosecutor also submitted copies of “jailhouse tapes” of some of defendant’s recent conversations with Bianco. In the tapes, defendant instructed Bianco to come to court wearing a skirt and with no panties on. She was to, “[m]ake that fucker bald as a baby’s ass. When you bend over . . . I’ll be looking for a bald spot.” Defendant told Bianco to have her friend come to court attired the same way: “Tell her to wear no panties too. I want to see two bald spots tomorrow.” Defendant suggested that Bianco steal a camera and take pictures of herself and her friend “licking some peanut butter.” He told her, “I want some young food.” Defendant referred to prosecution witnesses as “rats” who should be “exterminated,” and spoke of “running with the Hell’s Angels” and of “fucking people up like a bag of potatoes.”
After considering the written motions and hearing all the argument, the court denied the Romero motion and explained the factors contributing to its decision. Although the current offense was not violent, it was very significant. Despite the fact that defendant understood his obligation to register under the law, he gave different reasons for his failure to do so, thus demonstrating both a lack of candor and disregard for his legal obligations. In addition, the court said, although defendant’s original convictions had occurred on the same date, they were for multiple acts that had occurred over a long period of time and were committed against several children. The “despicable and depraved” molestations by force “weighs heavily in the mind of the court.” Finally, despite his 16-year sentence, when defendant was released in 2001 he soon—twice—violated his parole and had to be sent back to prison. “In sum, given the record before the Court, it is the Court’s opinion that the defendant continues to represent a significant threat to the community and does not fall outside the spirit of the Three Strikes [l]aw.”
The court sentenced defendant to an indeterminate term of 25 years to life in state prison.
DISCUSSION
Three Strikes Law and the Standard of Review:
It is well settled that a trial court has discretion to strike a prior conviction that constitutes a “strike” within the meaning of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 151-152 (Williams); Romero, supra,13 Cal.4th at pp. 529-530; People v. Cline (1998) 60 Cal.App.4th 1327, 1337 (Cline).) This discretion is broad but limited in the sense that its exercise must further the interests of justice. In other words, the rights of society as well as those of the defendant must be considered when determining the propriety of striking a prior conviction for a violent and serious felony that constitutes a “strike” under the Three Strikes law. (Williams, supra, at p. 161; Romero, supra, at p. 530; Cline, supra, at p. 1337.)
When a trial court is faced with a motion to dismiss a “strike” in the interest of justice, it must determine whether, in light of the nature and circumstances of the present felony and the prior convictions, and the particulars of the defendant’s background, character and prospects, he may be deemed to be outside the spirit of the Three Strikes law, in whole or in part, and thus should be treated as though he had not previously been convicted of one or more serious or violent felonies. (People v. Garcia (1999) 20 Cal.4th 490, 498-499; Williams, supra, 17 Cal.4th at p. 161.)
We review a decision regarding whether to strike a prior serious or violent felony conviction for abuse of discretion. (Williams, supra, 17 Cal.4th at pp. 152, 158-159, 162; Romero, supra, 13 Cal.4th at pp. 531-532.) The standard is deferential but not empty. The appellate court considers whether the decision of the trial court falls outside the bounds of reason under the applicable law and the relevant facts. (Williams, supra, at p. 162.) Nonetheless, “The appellate courts do not have the power to substitute their discretion for that of the trial court or to direct the trial court to exercise its discretion to dismiss. [Citations.]” (People v. Benevides (1998) 64 Cal.App.4th 728, 735.)
Analysis:
The record here shows that the trial court properly weighed defendant’s interests and those of society in reaching its decision to deny his motion to strike one of his prior serious and violent felonies. The court carefully articulated its review of defendant’s prior and present crimes as well as his background, character, and prospects. As to his prior crimes, the court found defendant’s child molestations by force—involving several victims and occurring over a long period of time—“despicable.” His present crime, while not violent, was significant: defendant understood his obligation to register under the law, but demonstrated both a lack of candor about why he had not done so and a continued disregard for his legal obligations. Finally, defendant’s prospects were poor. He had repeatedly been released but within short periods violated parole and was right back in prison.
At least 10 years—see fns. 2 and 3, ante.
Although the court did not specifically mention it, it also had before it abundant evidence of defendant’s less-than-sterling character. Defense counsel dismissed defendant’s phone conversations with Bianco from jail as mere sexual exchanges between consenting adults, but his client’s words revealed both ongoing violent ideation and child-focused sexual fantasies. Defendant spoke of exterminating prosecution witnesses and of “fucking people up like a bag of potatoes.” And he repeatedly demanded sexual stimulation by multiple, youthful subjects: he wanted Bianco and her friend to show up in short skirts with their private areas “bald as a baby’s ass” and stated specifically that he wanted “some young food.”
To paraphrase the trial court, “In sum . . . it is [our] opinion that the defendant continues to represent a significant threat to the community and does not fall outside the spirit of the Three Strikes [l]aw.” And the court’s decision to deny defendant’s motion to strike one of his prior serious and violent felonies does not fall outside the bounds of reason.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., KING, J.