Opinion
E065275
05-19-2017
THE PEOPLE, Plaintiff and Respondent, v. RONNELL ALONZO SPEARS, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1401007) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Ronnell Alonzo Spears was charged by amended information with pimping (Pen. Code, § 266h, subd. (a), count 1) and pandering by procuring another person for prostitution (§ 266i, subd. (a)(1), count 2). A jury found him guilty of count 2. However, it was unable to reach a verdict on count 1, so a trial court declared a mistrial as to that count. The court granted the People's subsequent motion to dismiss count 1, and it sentenced defendant to the middle term of four years in state prison on count 2.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
On appeal, defendant argues that the court abused its discretion in denying his request for the low term and instead sentencing him to the middle term. We affirm.
FACTUAL BACKGROUND
Officer Flores was part of a police task force that investigated prostitution, pimping, and pandering. He responded to an advertisement on Backpage.com for prostitution, which was associated with a person named Jesse. Officer Flores met her at hotel and arrested her. He went to the front office of the hotel to ask for information on the person who rented the room she was in. He found out the room was rented by defendant.
Officer Flores subsequently interviewed Jesse at the sheriff's station. During the course of the interview, her cell phone kept ringing. The phone number was later determined to belong to defendant. Jesse gave Officer Flores consent to search her phone. He read through the texts and testified that the texts between Jesse and defendant were related to pimping and prostitution. Officer Flores noticed that a lot of the texts were reference dates, the arrival times of different Johns, amounts of money received, good locations to go, and places to stay away from. Defendant would sometimes text and tell her she was doing a good job. In one text, Jesse told him she had to get more condoms, and he said, "Go get them." She also asked if she could buy cigarettes. Some texts showed defendant setting a time limit for Jesse and a particular John and directing her on how to act.
Two weeks after Jesse was arrested, the police made a pretext call to defendant, pretending that his apartment had been broken into, and that he needed to come by his apartment to see if anything had been taken. Defendant responded. After he arrived, the police told him they were there for another purpose. The police transported him to the sheriff's station and interviewed him there. He admitted to renting the hotel room and to texting Jesse; however, he called the texting "a game that they would play."
At trial, defendant testified on his own behalf. He admitted renting a room at the hotel, but he said it was for him and Jesse to have sex. Defendant said he never took or received any of her money, and he had "no clue" why she would send him text messages about the money she was making.
ANALYSIS
The Court Properly Sentenced Defendant to the Middle Term
Defendant argues that the trial court abused its discretion in denying his request for the low term. He asserts that he had no prior felony convictions, and that he had not previously been sentenced to prison. He also points out that Jesse had been a prostitute for years, that he was not "instrumental" in persuading her to become a prostitute or continue in that profession, and that there was no evidence he received money from her activities. We conclude there was no abuse of discretion.
A. Relevant Law
When the court imposes a sentence of imprisonment, it must select the upper, middle, or lower term on each count for which the defendant has been convicted. The choice of the appropriate term shall rest within the sound discretion of the court. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(a).) "In exercising his or her discretion in selecting one of the three authorized terms of imprisonment referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court, rule 4.420(b).) "Neither section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.) "[T]he broad discretion given to trial courts by section 1170 is subject to review for an abuse of discretion." (Ibid.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).)
B. Sentencing Hearing
The court held a sentencing hearing and heard arguments from both parties. Defense counsel asked for the low term, pointing out that defendant was 45 years old, had no history of felony convictions, had not been imprisoned before, had not received medical attention for paranoia, schizophrenia or his seizures, and that the victim was a willing participant. The prosecutor argued that defendant had gotten away with taking advantage of other people for years. He also argued that defendant was just using the victim, and when she called to tell him she had been arrested, he just "cut her off" and was callous toward her.
After hearing the arguments, the court noted the "seriousness and the gravity and the ugly underbelly of . . . the life of a pimp and a prostitute." It described defendant's behavior as "certainly appalling" and "abysmal." The court noted that, in his probation officer's interview, defendant went back to "attempting to sell the probation officer the same story that the jury didn't buy," which was that he did not know what was going on, and he only rented the room. The court saw no remorse or acceptance of responsibility on defendant's part. The court then stated it was going to go along with the probation officer's report and impose the middle term, considering that defendant had not been in prison before. It added that the case was "[not] even close to the mitigated term." The court said its decision was also based on the facts it heard at trial, and the numerous contacts and convictions defendant had, even though they were misdemeanor convictions. The court proceeded to sentence defendant to the middle term of four years.
C. There Was No Abuse of Discretion
The court here read the probation officer's report and recommendations, heard the arguments of counsel, weighed the alleged aggravating and mitigating circumstances, and imposed the middle term. "Since one aggravating factor is sufficient to aggravate a defendant's term [citation], then, a fortiori, several of these factors should also be sufficient to justify imposition of the middle term." (People v. Martinez (1985) 175 Cal.App.3d 881, 897 (Martinez).)
The probation officer's report cited three factors in aggravation pursuant to the California Rules of Court: (1) the defendant occupied a position of leadership or dominance in the crime (rule 4.421(a)(4)); (2) the manner in which the crime was carried out indicates planning, sophistication or professionalism (rule 4.421(a)(8)); and (3) the defendant's prior convictions as an adult, are numerous and of increasing seriousness (rule 4.421(b)(2)). The report indicated one circumstance in mitigation: the victim was a willing participant in the incident. (Cal. Rules of Court, rule 4.423, subd. (a)(2).) The record clearly showed that defendant occupied a position of leadership or dominance in the crime, and that the crime was carried out in a manner that indicated planning. (Rule 4.421(a)(4) & (a)(8).) He rented a room for Jesse at the hotel so she could engage in prostitution. He communicated with her by text messages concerning the arrival of different Johns, amounts of money received, good locations to go, and places to stay away from. Defendant would encourage her and tell her she was doing a good job. He told her to go get more condoms, and she apparently asked him permission to buy cigarettes. He would set time limits for her and tell her how to act. In addition, as the court noted, defendant had numerous misdemeanor convictions (the record reflects eight prior convictions). Moreover, the court considered the "gravity and the ugly underbelly of . . . the life of a pimp and a prostitute," and deemed defendant's behavior appalling. It also noted that defendant showed no remorse or acceptance of responsibility for his behavior. These factors were more than sufficient to justify imposition of the middle term. (See Martinez, supra, 175 Cal.App.3d at p. 897.)
Defendant asserts that several mitigating factors supported the lower term, including that he had no prior felony convictions and had not previously been to prison, and that Jesse was already a prostitute and was a willing participant in the current case. These factors, with the possible exception of the fact that Jesse was already a prostitute, were raised at the sentencing hearing and considered by the trial court. We note that "a trial court may 'minimize or even entirely disregard mitigating factors without stating its reasons.' " (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) Furthermore, the court commented that it would have been tempted to impose the upper term, had the prosecutor argued for it; however, it considered the fact that defendant had not previously been to prison and determined that the middle term was appropriate.
We conclude that defendant has failed "to clearly show that the sentencing decision was irrational or arbitrary." (Alvarez, supra, 14 Cal.4th at pp. 977-978.) The court properly exercised its discretion in imposing the middle term.
DISPOSITION
The judgement is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.