Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. KA084553, Charles E. Horan, Judge.
Vanessa Place, 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, Susan Sullivan Pithey and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted Ronnie Ventura (defendant) of two counts of committing a lewd act upon a child in violation of Penal Code section 288, subdivision (a). The trial court found true the allegations that defendant had suffered one prior serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and that he had suffered a serious felony conviction within the meaning of section 667, subdivision (a)(1).
All further references to statutes are to the Penal Code unless stated otherwise.
After denying defendant’s Romero motion, the trial court sentenced defendant to 21 years in state prison. In count 1, the trial court imposed the midterm of six years, doubled to 12 years due to the prior strike conviction. In count 2, the trial court imposed a consecutive sentence of one-third the midterm (two years) doubled to four years due to the strike. The trial court added a consecutive term of five years under section 667.5, subdivision (a)(1).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Defendant appeals on the ground that the trial court abused its discretion in denying his request to strike his prior serious felony conviction.
FACTS
Prosecution Evidence
Alysia C. (Alysia) was 14 years old at the time of trial. Between the ages of 11 and 14, she lived with her grandmother Phyllis (grandmother), her father, her two uncles and her grandmother’s boyfriend, defendant. Alysia slept in the living room. Alysia and defendant got along fine, and she called defendant “granddad.” Alysia’s grandmother worked at night. Beginning in 2006, while everyone was sleeping, defendant would touch Alysia in a way she did not like. He would rub and kiss her over and under her nightclothes, which would cause her to awaken. This occurred multiple times. He would kiss her breast, her face, and her lips. He also touched her vagina and placed his mouth on it. He pulled her hand to his penis once or twice. Alysia did not say anything because she was scared. She would not open her eyes because she was scared to look at his face. She knew it was defendant because she looked at him one time. She tried to keep her legs closed but he would open them. She did not try to get up because she was afraid he would hold her back. This would go on for a couple of minutes. Once or twice defendant touched her when she was in a bedroom sleeping with her sisters. At some point in 2007, defendant told Alysia not to tell anyone about what he was doing.
Alysia wrote her grandmother a note about the touching in July or August 2008, but her grandmother did nothing except talk to Alysia and ask her how long it had been going on. Defendant did not touch Alysia after that. Later, Alysia told her sisters about the touching in August 2008. Her two sisters told Alysia’s mother at Alysia’s request. Alysia reported the incidents to police on September 18, 2008.
Detective Amber Montenegro (Detective Montenegro) of the Los Angeles County Sheriff’s Department interviewed defendant on the afternoon of September 19, 2008, while he was in the hospital. He had been arrested the night before for the instant offenses. The interview was recorded, and the recording was played for the jury. Defendant described to Detective Montenegro an incident when he was waking Alysia up for school and he touched her shoulder. Alysia was scared. Defendant said he and Alysia had always played and joked around, and they were close. Defendant said that, on one occasion, Alysia sneaked out of the house and got in trouble. She made up a story to get the attention away from her and throw it at defendant. She did it again when she got in trouble for smoking marijuana.
When told that Alysia’s sister saw the touching, defendant said he “never touched those girls.” When told that Alysia just wanted to know defendant would not hurt her, defendant said “I don’t remember.” He said he drank a lot and may have done something that he did not remember. When asked if he had sex with Alysia, defendant denied it. When asked how far it went, defendant said “She just touch her breast.” Detective Montenegro asked, “You just touched her breast?... What else?” Defendant replied, “That is it.” Defendant said he used only his hands. Detective Montenegro told defendant, “It’s okay, Ronnie. As long as you feel bad about what happened.” Defendant said he did because “she’s my granddaughter.” When asked how many times a week it happened, defendant said it happened only “a couple times.” When asked again how far it went, defendant said, “I just touched her.”
Defense Evidence
Grandmother, testified that Alysia “tells lots of lies.” Alysia did not like the rules grandmother laid down. Alysia told grandmother she had volleyball tryouts after school, and grandmother found out it was a lie. This was in September 2008. Alysia wrote grandmother a letter in 2008 about defendant, and grandmother discussed it with Alysia. Grandmother asked Alysia if she was sure. In the letter, Alysia said defendant had touched her inappropriately one time. Alysia asked grandmother to talk to defendant, and she did so. Defendant said that if he touched Alysia’s breast it was by accident. Grandmother acknowledged a 1996 felony conviction for welfare fraud.
Tiffanie, Alysia’s cousin and grandmother’s niece, heard Alysia tell someone over the telephone in July 2008 that “she was going to make all this up towards [defendant] so that she [could] move back with her mom.” Alysia was going to say defendant was touching her. Tiffanie testified that Alysia was a liar who lied a lot to get out of trouble. Tiffanie acknowledged committing grand theft in 2005. Alysia’s second cousin, Kymberly, stated that Alysia was a liar who “lies about everything.” Kymberly heard the same conversation that Tiffanie heard, in which Alysia said she was going to say defendant touched her.
Grandmother’s mother, Lydia, testified that Alysia does not tell the truth. She would be dishonest in order to get out of trouble. Alysia would sneak out at night. Lydia routinely asked Alysia if anyone touched her, and Alysia said “no.” Grandmother’s sister, Betty, testified that Alysia is not a truthful person. When she stayed with Betty, Alysia lied about sneaking out of her room at night.
Dr. Gordon Plotkin, a psychiatrist and biochemist, reviewed defendant’s medical records. He stated that defendant was suffering from alcohol withdrawal while in the hospital. He was injected with an anti-nausea medication and Librium before his interview with the detective. He was also given two oral medications for diabetes. Librium is a sedative hypnotic drug. It can cause a type of blackout. Dr. Plotkin listened to the recording of defendant’s interview, and he believed there were pauses that could have been caused by the drugs he took. His mental state may have been clouded. The statements defendant made could or could not be reliable.
Defendant testified that he was a diabetic and had difficulty getting an erection. He drank a 12-pack of beer every evening at home. He did not remember touching Alysia when grandmother asked him about Alysia’s letter. He never touched Alysia on purpose in any way. He did not remember speaking to any member of law enforcement while he was in the hospital after his arrest. Alysia’s allegations in her testimony were not true. Defendant acknowledged that he and grandmother had been codefendants in a welfare fraud case.
Rebuttal Evidence
Detective Montenegro stated that defendant was alert and coherent during their interview. Defendant knew she was from the police. Grandmother told the detective that she could not remember what Alysia wrote in her letter to grandmother.
Surrebuttal Evidence
Detective Montenegro testified that Alysia never told her that defendant instructed her not to tell anyone about what he did.
DISCUSSION
I. Defendant’s Argument
Defendant contends that the trial court did not fully consider any of the factors in People v. Williams (1998) 17 Cal.4th 148 (Williams) except the fact of defendant’s prior conviction in denying his Romero motion. According to defendant, the second strike term must be reversed, and the matter must be remanded for reconsideration.
II. Proceedings Below
At the first sentencing hearing, defense counsel argued that defendant’s strike was extremely remote in that it occurred almost 30 years before. Since that time, defendant had only one police contact, and defendant did very well on probation in that case. For the past 30 years defendant had raised and supported a family and had been employed up until his recent layoff due to cutbacks. Over 30 people had written letters of support for defendant.
The prosecution argued that, although remoteness is a factor, it is not the only one. The strike offense was both violent and serious. Defendant was subsequently convicted of felony welfare fraud in 1996 and was on probation until 2001. The instant offenses began in 2006. The prosecution maintained that defendant exhibited a pattern of criminal behavior.
The trial court stated that, given defendant’s lack of a record, it would send defendant to the Department of Corrections for 90 days for an assessment of defendant’s physical and psychological condition pursuant to section 1203.03. The trial court took the Romero motion under submission until completion of the assessment.
At the subsequent sentencing hearing, the trial court stated it had read the probation report and the report prepared by the Department of Corrections, which recommended a state prison commitment. The trial court denied the Romero motion, stating that the only factor in favor of granting it was the age of the conviction, and that was not sufficient in the instant case.
III. Relevant Authority
We review the trial court’s ruling for abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162; Romero, supra, 13 Cal.4th at p. 530.) The burden is on the party attacking the sentence to establish that the sentencing decision was irrational or arbitrary. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434; People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [a defendant’s] prior convictions. Where 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 court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers, supra, at p. 310.)
A court’s power to dismiss a prior conviction is to be limited by the concept that the dismissal should be in the “furtherance of justice.” (Romero, supra, 13 Cal.4th at p. 530.) According to Williams, in order to “render Penal Code section 1385(a)’s concept of ‘furtherance of justice’ somewhat more determinate, ” justice should be sought within the “interstices” of the particular sentencing scheme, because the scheme itself suggests its spirit. (Williams, supra, 17 Cal.4th at p. 160.) This search must be “informed by generally applicable sentencing principles” relating to matters such as the nature of the current felonies, the defendant’s prior convictions, and his “background, character, and prospects, ” which are intrinsic to the scheme. (Id. at pp. 160, 161.) The court cautioned that the standard for review of an exercise of discretion is “deferential, ” although not “empty, ” requiring the reviewing court to determine whether a ruling exceeds the bounds of reason under the law and relevant facts. (Id. at p. 162.)
IV. No Abuse of Discretion
The record clearly demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the “Three Strikes” law in this case. At both sentencing proceedings, the trial court demonstrated that it had given a great deal of thought to the issue of whether to strike defendant’s prior conviction, and it even took the extra step of having defendant evaluated for 90 days.
At defendant’s initial sentencing proceeding, the trial court acknowledged the remoteness of defendant’s prior strike conviction. The trial court also stated that defendant’s criminal history, with one other felony conviction 15 years before, was relatively minor. The trial court was appreciative of the fact that defendant had held down a job and apparently worked hard.
The trial court nevertheless found it disturbing that defendant abused Alysia with such regularity and that he did it while drunk. Also, defendant was addicted to alcohol and did nothing to remedy this. By his own testimony, defendant would drink 12 beers a night. The trial court noted that defendant testified he had a sexual dysfunction, and the child had perhaps become a convenient target for him. Looking for some sort of sexual outlet, defendant decided to victimize a child who was being bounced back and forth between residences by her relatives. There was no doubt in the court’s mind that defendant was guilty and that the jury made the right call.
In order to give defendant every opportunity to show that there was cause to grant the Romero motion, the trial court sent him to the Department of Corrections for a physical and psychological assessment. Although the record does not contain a copy of the report, the trial court stated that the report recommended a prison sentence. After considering both the probation report and the assessment report, the trial court stated, “All things considered, the court does not feel there’s been a demonstration that the defendant falls without the spirit of the Three Strikes law. And nothing about his prospects, prior, the current conviction, or his behavior in the interim would point toward taking the rather extraordinary step of doing away with the prior. So the Romero motion is denied.”
The trial court also revealed its reasoning when responding to the People’s argument that defendant should receive the high base term. The trial court stated, “What’s a little disconcerting, not greatly so, and it doesn’t anger the court, but it is disconcerting that even at this point the defendant really has no remorse. His position is that this is all concocted. It’s not concocted. The defendant was convicted by a jury, and properly so, of some-of two counts of 288. He will not concede even the possibility to the prison authorities that that conduct occurred. That makes, in my opinion, his prospects for rehabilitation zilch, meaning zero, since he’s not even willing to concede the obvious, that the young lady was telling the truth.” The trial court noted that the family had aligned itself against the victim. The trial court stated, “the fact that he won’t speak to it and fess up, so to speak, and work with the prison authorities and indicate he’s willing to change, and so forth, and have some realization of what caused the conduct means it is apt to occur if he’s released anytime soon.” The trial court observed that the victim was a guest in defendant’s home, and she trusted him. Defendant took advantage of the position of trust.
The probation report confirms that defendant was convicted of assault with a deadly weapon in February 1981 when he was 19 years old. He was originally charged with shooting at an occupied dwelling. He received probation, which terminated in 1984. In 1996, he was convicted of welfare fraud and received five years’ probation. Although this is not a lengthy record, it is not an unblemished one. As the trial court noted, defendant’s prospects for rehabilitation were poor given his refusal to acknowledge any wrongdoing.
The record shows clearly that the trial court properly considered the “particulars of [defendant’s] background, character, and prospects” (Williams, supra, 17 Cal.4th at p. 161) as well as the circumstances of the current offense in denying defendant’s motion. The trial court took into consideration traditional sentencing criteria, as Williams suggests. (Id. at p. 160.) The trial court’s comments certainly reveal no evidence of “‘arbitrary determination, capricious disposition or whimsical thinking.’” (People v. Giminez (1975) 14 Cal.3d 68, 72.) Rather, they indicate that the trial court was guided by legal principles appropriate to the decision as set out in Romero, supra, 13 Cal.4th at pages 530-531. The trial court acted as a “reasonable judge” and properly determined that the extraordinary step of striking a prior serious felony conviction was not justified in the instant case. (See Williams, supra, at p. 159 [trial court must give reasons in the minutes for using “this great power”].)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.