Opinion
E051958 Super.Ct.No. RIF149954
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. CEDRIC DEWAYNE BROWN, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of Riverside County. Sherrill A. Ellsworth, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Cedric Dewayne Brown guilty of four counts of committing lewd acts on a child under 14 years old (Pen. Code, § 288, subd. (a); counts 2-5) and furnishing a controlled substance to a minor (Health & Saf. Code, § 11353; count 7). The jury also found true that the victim was more than four years younger than defendant. In a bifurcated proceeding, the trial court thereafter found true that defendant had suffered two prior serious and violent felony convictions (§ 667, subd. (c) & (e), 1170.12, subd. (c)) and two prior prison terms (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total indeterminate term of 100 years to life, plus a determinate term of four years with credit for time served. On appeal, defendant contends (1) the trial court erred when it determined counts 2 through 5 were committed on separate occasions and did not arise from the same set of operative facts; and (2) the trial court abused its discretion in denying his motion to strike his prior serious and violent felony convictions. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The jury was unable to reach a verdict as to count 1 (rape of a child under 14 years old and 10 or more years younger than defendant (§§ 261, subd. (a)(2), 269, subd. (a)), and the trial court declared a mistrial as to that count. In addition, the court granted the People's motion to dismiss count 6 (unlawful sexual intercourse with a minor (§ 261.5).
I
FACTUAL BACKGROUND
Jane Doe met defendant in 2008 when she was 13 years old. While walking to a friend's house in Moreno Valley, defendant approached Jane and asked her how she was doing and where she was going. Defendant also told Jane that he sold drugs, and the two exchanged telephone numbers. Defendant and Jane thereafter began talking on the telephone, and Jane began to "sneak out" of her parents' house to go with defendant on "drug deals" or to other people's homes. Defendant supplied Jane with marijuana, cocaine, and crack and used the drugs with her. He also sexually abused Jane on several occasions.
Jane was 14 years old at the time of trial.
--------
Specifically, on one occasion, defendant and his friend Jeremy picked up Jane from her house and took her to a hotel in Moreno Valley. Once inside, Jane sniffed some crack cocaine and smoked some marijuana. Jane thereafter recalled being on the bed with her clothes off with one man on each side of her. Jeremy was rubbing her chest and thigh. Defendant tied a shoe string around his penis, got on top of Jane, and inserted his penis inside Jane's vagina. Jane then had sexual intercourse with Jeremy.
In another incident, defendant picked up Jane from her house and drove her to Lake Elsinore. Once there, they smoked cocaine together in the back seat of defendant's car. After some time, defendant inserted his penis into Jane's vagina and ejaculated.
On another occasion, defendant made Jane orally copulate him while Jane's friend and the friend's baby were in the car. Defendant got into the back seat of the car and told Jane, "'Show this white girl how to suck dick.'" Jane said "[N]o"; however, defendant unzipped his pants and pushed her head with his hand towards his penis. Jane eventually "gave up" and performed oral sex on defendant.
At another time, defendant again forced Jane to perform oral sex on him while at March Mountain.
In November 2008, defendant sexually assaulted Jane after he picked her up from her house and took her to an area "where people smok[ed]." Defendant told Jane to get into the back seat of his car and take off her pants. Jane refused because she did not want to have sex with defendant. Defendant then "yank[ed]" down her sweat pants to her ankles and ripped her underwear. He pulled down his pants, took the shoe string from his shoe, and tied it around his penis. He thereafter got on top of Jane and inserted his penis into her vagina. Jane said "no" and pushed up. Defendant pushed Jane down and proceeded to sexually assault her. After defendant ejaculated, Jane grabbed her sweat pants and put them on. Defendant drove Jane back to her home and told her not to say anything to anyone.
Jane stopped seeing defendant after the assault and reported the assault to her probation counselor in February 2009. Defendant was eventually arrested.
At trial, defendant admitted smoking marijuana with Jane, having sexual intercourse with her three or four times, and having her perform oral sex on him five times or more. He believed that Jane was 19 years old and that the sexual activity was consensual. Defendant admitted that he had been convicted of robbery in 1995 and of armed robbery in 1992.
II
DISCUSSION
A. Consecutive Sentencing on Counts 2 through 5
Prior to sentencing, defense counsel asserted, "Don't have a lot of options [as to sentencing] here, Judge." After the court responded, "Correct," defense counsel argued, "It's just a question of whether you go full and separate on each count. This Court knows the law. . . . If it arises out of the same set of facts, you can sentence [defendant] to 25 years to life. The testimony at trial, however, said they were different occasions. So I think you can at least not impose the 25 to life on the 11353 because that did happen at the same time as one of the sex acts. But with that, I'll submit."
The court found that counts 2 through 5 were committed on separate occasions and did not arise out of the same set of operative facts and therefore sentenced defendant to consecutive terms of 25 years to life on each of the counts. The court, however, found that count 7 (furnishing a controlled substance to a minor (Health & Saf. Code, § 11353, subd. (a)) occurred at the same time as the sexual act, and sentenced defendant to a concurrent term of 25 years to life on that count.
Defendant contends the trial court erred in imposing consecutive sentences on counts 2 through 5, because some of the acts upon which the jury could have relied in convicting him on these counts were committed on the same occasion or arose from the same set of operative facts. In other words, he argues because the jury's verdicts on counts 2 through 5 did not reflect on which lewd acts the jury based its guilty verdicts, the trial court was bound, under People v. Coelho (2001) 89 Cal.App.4th 861, 864-865, to assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms.
Once the jury has made a determination of guilt, "the trial court reviews the relevant evidence concerning the unlawful acts the defendant was convicted of and determines whether they occurred on the same or different occasions and under the same or different circumstances." (People v. Coelho, supra, 89 Cal.App.4th at p. 884.) Under the three strikes law, "the court must impose a consecutive sentence for each current offense 'not committed on the same occasion, and not arising from the same set of operative facts . . . .' [Citations.]" (Coelho, at p. 864, fn. omitted.) "[W]here a sentencing court determines that two or more current felony convictions were either 'committed on the same occasion' or 'aris[e] from the same set of operative facts' . . . , consecutive sentencing is not required under the three strikes law, but is permissible in the trial court's sound discretion." (People v. Lawrence (2000) 24 Cal.4th 219, 233.)
"The statutory phrase 'committed on the same occasion' refers to 'at least a close temporal and spatial proximity between the acts underlying the current convictions.' [Citation.] The statutory phrase 'arising from the same set of operative facts' refers to 'sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted.' [Citation.]" (People v. Coelho, supra, 89 Cal.App.4th at p. 864, fn. 1.) "[I]f the jury could have based its verdicts upon a number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms." (Id. at p. 865.)
The trial court here correctly imposed consecutive sentences as to counts 2 through 5. Each of those counts was based on a separate act of sexual conduct, with each crime committed on a separate occasion and arising from a different set of operative facts. As the trial court noted, "[E]ach of the sex acts were not committed on the same occasion. They are arising out of separate and distinct acts. In fact, the very acts themselves, some were vaginal, some were oral, there were even times with sex in front of others that were discussed and at least considered, and each of those sex acts are distinct and separate."
The record reflects that the trial court properly considered and understood whether to utilize the full strength consecutive sentences provision of section 667.6, subdivision (c). (See People v. Quintanilla (2009) 170 Cal.App.4th 406, 414.) It also mentioned the following circumstances as supporting the imposition of full strength upper term consecutive sentences with respect to counts 2 through 5: "the vulnerability of the victim, the advantage that was taken of the victim as well as the drugs that took place and were being used during the time of the ongoing sexual acts," the manner in which the crime was carried out, defendant's commission of the acts reflected sophistication and planning, and the significant age different between defendant and the victim. We conclude that the trial court did not abuse its discretion in determining that these circumstances supported the imposition of consecutive sentences pursuant to section 667.6, subdivision (c). (See People v. Coelho, supra, 89 Cal.App.4th at p. 888 [trial court provided adequate statement of reasons for imposing consecutive sentences where trial "court could reasonably find that the objectives behind the touching and digital penetration were separate and distinct: to achieve different forms of sexual gratification, first by being passive and having the victim manipulate his genitals; and then by being active and penetrating her genitals," and noting that "a defendant who decides to commit different types of sexual acts -- e.g., digital penetration, oral copulation, and sodomy -- may reasonably be deemed more culpable than a person who repeats one of those acts three times, perhaps in rapid succession without much thought"].)
B. Motion to Dismiss Prior Strikes
Defendant contends the trial court abused its discretion in denying his motion to strike one or both of his prior serious and violent felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree.
In Romero, the Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under Penal Code section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) When exercising its discretion, the court must consider "'whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony, supra, 33 Cal.4th at p. 375.) "[A] trial 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.) "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 . . . , 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." (Id. at p. 378.)
Defendant argues the trial court should have struck one or both his prior felony strikes because his prior strikes were remote in time, and his criminal record did not reflect him to be a career criminal. He also argues that the trial court did not adequately consider his record and history. We reject these contentions.
The trial court did not abuse its discretion in denying defendant's Romero motion. Prior to denying defendant's Romero motion, the trial court here noted that it had read the parties' sentencing memoranda, defendant's motion to strike his priors, the People's opposition, a letter written by Jane, and the probation report. There is a "'strong presumption' [citation] that the trial judge properly exercised [her] discretion in refusing to strike a prior conviction allegation." (In re Large (2007) 41 Cal.4th 538, 551.) "On appeal the basic rule is that it will be assumed that the trial court impliedly found every fact, necessary to support its ruling, to be true. [Citations.]" (People v. Castaneda (1969) 1 Cal.App.3d 477, 484.) "Absent a showing to the contrary, we presume the trial court fulfilled its duty to make the requisite determination. [Citations.]" (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836.) the
Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. His past criminal history, while not extensive, includes two serious and violent felonies for robbery in 1992 and in 1995, possession of drugs in 1999, and driving under the influence in 2003. His criminal record also demonstrates his poor performances on probation. The record also indicates that defendant abused drugs and supplied his 13-year-old victim with drugs during his ongoing sexual acts with the victim. Defendant's current crimes of repeatedly sexually abusing Jane were cruel and egregious.
The trial court here could not overlook the fact that defendant continued to commit criminal offenses and violate the terms and conditions of his parole even after repeatedly serving time in prison. His conduct as a whole was a strong indication of his unwillingness or inability to comply with the law. His disregard for the law is evidenced by his probation violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful. Indeed, defendant's prospects for the future look no better than the past, in light of defendant's record of prior offenses and apparent substance abuse. All of these factors were relevant to the trial court's decision under Romero.
A trial court abuses its discretion in striking a prior conviction if it is "'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' [Citation.]" (Romero, supra, 13 Cal.4th at p. 531.) There is no indication from the record here that the trial court failed to consider and properly balance relevant factors or that it abused its discretion in determining that defendant was not outside the spirit of the three strikes law. (People v. Carmony, supra, 33 Cal.4th at pp. 375, 377-378.)
Even though under the three strikes law defendant is subject to a lengthy sentence, which in effect will result in his spending the rest of his life in prison, this does not require the trial court to strike one or both of defendant's prior strike convictions. Based on the totality of the relevant factors, we cannot say the trial court abused its discretion in refusing to dismiss one or both of defendant's prior strike convictions.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
MILLER
J.