Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC244901, CC215318
Bamattre-Manoukian, Acting P.J.
In case No. CC125318, defendant Jure Dragos was convicted by no contest plea of lewd conduct on a child under 14 (Pen. Code, § 288, subd. (a)), with an admission of substantial sexual conduct (§ 1203.066, subd, (a)(8)). In case No. CC244901, defendant was convicted by guilty plea of eight counts of lewd conduct on a child under 14, with an admission of committing the offense against more than one victim (§ 667.61), and an admission of befriending the victims for the purpose of committing the offenses (§ 1203.066, subd. (a)(3)); four counts of inducing a minor’s involvement in performing sexual conduct (§ 311.4, subd. (c)), and one count of exhibiting harmful matter to a minor (§ 288.2, subd. (a)). The trial court sentenced defendant to the determinate term of 16 months and the indeterminate term of 45 years to life in case No. CC224901, consecutive to the determinate term of six years in case No. CC125318.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that the court abused its discretion and violated his Eighth and Fourteenth Amendment rights when, at the time it imposed sentence, it failed to consider as a mitigating factor that defendant was a minor at the time the offenses were committed. Defendant further contends that the sentence constitutes cruel and unusual punishment. In a concomitant argument, defendant contends that his counsel rendered ineffective assistance by failing to contest the sentence on the above grounds. Lastly, defendant contends that the matter should be remanded for resentencing because the trial court was unaware that it had the discretion to impose a concurrent rather than a consecutive sentence in case No. CC125318, and counsel rendered ineffective assistance by failing to advise the court of that option. The Attorney General concedes that the record supports defendant’s last contention. To the extent that the record is ambiguous as to whether the trial court understood its discretion, we agree that the matter should be remanded. Therefore, we will reverse the judgment and remand the matter to allow the trial court to exercise its discretion to impose concurrent or consecutive sentences.
Defendant has also filed a petition for writ of habeas corpus, which this court previously ordered considered with the appeal. We have disposed of the petition by separate order filed this day. (Cal. Rules of Court, rule 8.264(b)(4).)
BACKGROUND
Facts
The facts underlying defendant’s convictions are taken from the probation report.
On October 15, 2001, the mother of six-year-old John Doe I informed San Jose police officers that defendant, her usual babysitter, was seen entering her gated patio late at night and exiting approximately five minutes later. Suspicious of defendant’s activities, she searched her patio and found a shoebox in an ice chest, which contained pictures of John Doe I and several items with defendant’s name on them. The pictures showed John Doe I nude and asleep, with a large penis in his face and near his buttocks, as well as John Doe I with a Q-tip swab protruding from his anus. John Doe I’s mother also informed the officers that defendant had been a babysitter for another young boy, John Doe II.
John Doe I told the officers that defendant had touched and played with his “ ‘private part,’ ” that defendant had showed John Doe I his private part, that defendant had placed his mouth on John Doe I’s private part, and that defendant had kissed him on the lips and touched his chest. John Doe I also said that defendant told him to keep it a secret.
During the investigation of the matter, officers seized approximately 85 photo CDs, and discovered some of the disks had images of John Doe II being molested by defendant. John Doe II, age 10, told officers that defendant had touched his private parts on several occasions, and had showed him his penis. Defendant had also “ ‘flash[ed]’ ” him and walked around with his pants pulled down. In addition, defendant showed John Doe II pornography on the computer, and sometimes John Doe II would awaken to find defendant’s face near his abdomen area. John Doe II did not like the fact that defendant took photos of him, and he stated that defendant had offered him money to pose nude for a photo.
Prior Procedural History
The following procedural history is taken from the opinion in defendant’s prior appeal in these cases: People v. Dragos (July 15, 2005, H027410) [nonpub. opn.].
On the court’s own motion on July 3, 2007, the court stated it would take judicial notice of its record in case No. H027410.
Defendant was charged in case No. CC125318 by felony complaint filed October 18, 2001, with lewd conduct on a child under 14 (§ 288, subd. (a)) as to John Doe I, with a special allegation of substantial sexual conduct (§1203.066, subd. (a)(8)). On January 2, 2002, defendant pleaded no contest to the charge and admitted the special allegation.
Defendant was charged in case No. CC244901 by felony complaint filed April 8, 2002, with six counts of lewd conduct on a child under 14 (counts 1-4, 6 & 8) and two counts of inducing a minor’s involvement in performing sexual conduct (§ 311.4, subd. (c), counts 5 & 7) as to John Doe I, and two counts of lewd conduct on a child under 14 (counts 9 & 10), and one count each of exhibiting harmful matter to a minor (§ 288.2, subd. (a), count 11) commercial use of a minor in sexual conduct (§ 311.4, subd. (b), count 12), and inducing a minor’s involvement in sexual conduct (count 13) as to John Doe II. The complaint further alleged as to counts 1 through 3, 6, and 8 through 10, that defendant committed the offense against more than one victim (§ 667.61); as to counts 1 through 4, 6, and 8 through 10, that he befriended the victim for the purpose of committing the offense (§ 1203.066, subd. (a)(3)); as to counts 2, 3, 8 and 10, that he had substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)); and as to count 4 that he had forcibly administered a controlled substance to the victim (§§ 12022.75, 667.61). On July 11, 2002, defendant entered a negotiated no contest plea to counts 1, 2, 3, 5, 6, 9, 10, and 13, and admitted the special allegations as to each count. Conditions of the plea included that the terms on counts 5 and 13 were to be served concurrently with the 15-year-to-life terms on the other counts, and that the remaining counts would be dismissed at the time of sentencing.
On September 12, 2003, with new counsel, defendant filed a motion to withdraw his plea in case No. CC244901, contending that he was deprived of the effective assistance of counsel prior to entry of his change of plea. The prosecutor filed opposition to the motion on September 24, 2003, and after a hearing the trial court denied the motion. On April 8, 2004, the trial court sentenced defendant to 90 years to life in case No. CC244901, with a concurrent determinate sentence of six years in case No. CC125318. Defendant filed notices of appeal as to both cases, and obtained a certificate of probable cause in case No. CC244901.
On appeal defendant contended that his conviction in case No. CC244901 must be reversed because the trial court erred in denying his motion to withdraw his plea, and because he was never advised of his right to a jury trial regarding the facts supporting the six consecutive 15-year-to-life sentences the trial court imposed. Finding that the record on appeal supported the trial court’s determination that his counsel misadvised defendant regarding the terms of the plea agreement, and that defendant had established that he was prejudiced by counsel’s misadvice, as there was a reasonable probability that defendant would have rejected the plea offer had it been accurately presented and had he understood that his minimum sentence would be 90 years, we reversed the judgment and remanded the matter to allow defendant to withdraw his plea in case No. CC244901.
Present Appeal
The trial court granted defendant’s previous motion to withdraw his plea in case No. CC244901 on November 8, 2005.
On July 20, 2006, an amended felony complaint was filed in case No. CC244901 charging defendant with six counts of lewd conduct on a child under 14 (§ 288, subd. (a), counts 1-4, 6 & 8) and two counts of inducing a minor’s involvement in performing sexual conduct (§ 311.4, subd. (c), counts 5 & 7) as to John Doe I, and two counts of lewd conduct on a child under 14 (counts 9 & 10), and one count each of exhibiting harmful matter to a minor (§ 288.2, subd. (a), count 11), commercial use of a minor in sexual conduct (§ 311.4, subd. (b), count 12), and inducing a minor’s involvement in sexual conduct (count 13) as to John Doe II. The complaint further alleged as to counts 1 through 4, 6, and 8 through 10, that defendant committed the offense against more than one victim (§ 667.61), and that he befriend the victim for the purpose of committing the offense (§ 1203.066, subd. (a)(3)); and as to count 2, 3, and 8 through 10, that he had substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). At a hearing on July 20, 2006, the prosecutor amended count 12 to allege a violation of section 311.4, subdivision (c), and defendant entered a guilty plea to all charges in the complaint as amended, and admitted all of the enhancement allegations, without any conditions or promises and with the understanding that the maximum sentence was 120 years to life consecutive to 11 years eight months, and the minimum sentence was 15 years to life consecutive to three years.
Defendant filed a sentencing memorandum, contending in part that his age of 17 years at the time of the offenses was a circumstance in mitigation, and requesting that the court sentence him to a total term of 15 years to life. The probation officer recommended that defendant be sentenced to the indeterminate term of 30 years to life consecutive to the determinate term of seven years four months. The probation report identified “defendant’s youthful age, and no significant criminal history as a Juvenile or Adult” as reasons for imposing only two consecutive 15-year-to-life terms.
At the sentencing hearing on December 11, 2006, two parents of the victims, the defendant’s mother, and defendant addressed the court. The prosecutor argued that, because defendant was likely to reoffend, he was requesting that the court impose consecutive terms on all counts. “[T]he recommendation by probation is wholly inadequate to protect future generations of victims in the case.” Defendant argued that concurrent sentences were permitted and consecutive sentences were not justified based on several mitigating factors: (1) that defendant was 17 years old, a minor, at the time of the offenses; (2) that he had no prior criminal record; (3) that he had been molested as a child; and (4) that he wanted to resolve the case early without requiring that the victims testify. “I believe that a term of 30 to life is more than ample protection to the community.”
The court sentenced defendant to the determinate term of 16 months and the indeterminate term of 45 years to life in case No. CC244901, consecutive to the determinate term of six years in case No. CC125318. The court stated that three consecutive 15-year-to-life terms were being imposed under section 667.61, subdivisions (b) and (e), “based on the multiple victim[s], separate occurrence, a violation of trust, planning and sophistication, vulnerability of the victim.”
Defendant filed a timely notice of appeal in both cases.
DISCUSSION
Mitigating Factor
In his opening brief, defendant contends: “Trial counsel, in accordance with the probation department’s recommendation, argued that two 15-year-to-life sentences should be assessed consecutively with the remaining [15-year-to-life] counts to run concurrently. Both the probation department and defense counsel argued that [defendant’s] minor status at the time the crimes had been committed should be considered as mitigating factors. The trial court assessed three consecutive 15-year-to-life sentences, imposing a 52-years, four months-to-life sentence, preventing [defendant] from being even eligible for parole until he is over 62 and a half years old. In so doing, the trial court failed to consider [defendant’s] minor status at the time the crimes were committed as being a mitigating factor. [¶] It is maintained that the failure of the court to consider [defendant’s] minor status as a mitigating factor was a violation of [his] Eighth and Fourteenth Amendment rights, and an abuse of discretion.”
The Attorney General argues that it is clear from the record that the trial court considered the fact that defendant was 17 years old at the time he committed the offenses, but rejected that fact as a factor in mitigation.
Section 667.61, the “one strike law,” mandates sentences of 25 years to life or 15 years to life for specified sex offenses. (§ 667.61, subds. (a) & (b).). A sentence of 15 years to life is mandated for every conviction under section 288, subdivision (a), when the defendant committed the offenses against more than one victim. (§ 667.61, subds. (b), (c)(8), (e)(5).) However, section 667.61 does not mandate that the sentences for such offenses be imposed consecutively. (Cf. § 667.61, subd. (i).) Therefore, the trial court retained discretion to impose either concurrent or consecutive terms for the multiple convictions under section 288, subdivision (a), that defendant sustained here. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 (Rodriguez); § 669.)
The selection of the appropriate sentence was within the broad discretion of the trial court. (People v. Avalos (1996) 47 Cal.App.4th 1569,1582 (Avalos).) “In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. (See § 669; Cal. Rules of Court, rule 4.425(a), (b).) Factual findings are not required.” (People v. Black (2007) 41 Cal.4th 799, 822 (Black).) The trial court need only cite “ ‘reasons’ ” for imposing consecutive sentences (§ 1170, subd. (c)), “and the reasons given for imposing a consecutive sentence need only refer to the ‘primary factor or factors’ that support the decision to impose such a sentence (Cal. Rules of Court, rule 4.406(a), (b); see § 1170, subd. (c); . . .)” (Black, supra, 41 Cal.4th at p. 822.) Only one criterion or factor in aggravation is necessary to support a consecutive sentence (People v. Davis (1995) 10 Cal.4th 463, 552), and the trial court need not explain its reasons for rejecting a factor in mitigation. (Avalos, supra, 47 Cal.App.4th at p. 1583.)
The criteria or factors the trial court relied on when imposing consecutive sentences were “the multiple victims, separate occurrence, a violation of trust, planning and sophistication, [and] vulnerability of the victim.” Defendant does not contend that the criteria or factors the trial court cited do not support its decision to impose consecutive sentences. Rather, he contends that the court erred in failing to consider as a mitigating factor that he was a minor at the time of the offenses. He cites Roper v. Simmons (2005) 543 U.S. 551 (Roper), in support of his argument. In Roper, the United States Supreme Court held that the Eighth Amendment prohibits imposition of the death penalty for crimes committed when the offender was under 18. Roper does not require the trial court to consider defendant’s age when exercising its discretion to impose consecutive life sentences in this case. “[T]he penalty of death is different in kind from any other punishment imposed under our system of criminal justice” (Gregg v. Georgia (1976) 428 U.S. 153, 188), and “is reserved for a narrow category of crimes and offenders.” (Roper, supra, 543 U.S. at p. 569.) “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.” (Id. at pp. 573-574.)
Defendant also contends that the court abused its discretion when it “balanced” the purported wishes of the victims and the prosecution with the probation department’s recommended sentence. In support of his contention, defendant points to the following comments by the trial court: “The conduct in this case is certainly meritorious of any sentencing within the range that is available to the court in this case. My job is to balance everybody and make a determination.” Defendant argues that “[t]here is nothing in the sentencing structure that requires, or even allows, a trial court to ‘balance everybody[’s]’ wishes during the sentencing of a defendant.”
Read in context, we find that the trial court properly stated that it was required to consider all of the comments and arguments presented at the sentencing hearing when making its sentencing determination. Contrary to defendant’s contention, California’s sentencing scheme does require that the trial court consider the parties’ (see e.g., § 1170, subd. (b)), the probation department’s (see e.g., § 1203, subd. (b)(3)), and the victims’ comments and wishes when sentencing a defendant (see e.g., §§ 679.02, subd. (a)(3); 1191.1). Defendant has not shown that the trial court’s sentencing decision was an abuse of discretion.
Cruel and Unusual Punishment
Defendant contends that the imposition of three consecutive 15-year-to-life sentences, consecutive to seven years four months, constitutes cruel and unusual punishment. Acknowledging that he raises this argument for the first time on appeal, defendant further contends that his counsel rendered ineffective assistance by not raising the issue below. The Attorney General argues that defendant’s claim is waived and, assuming it is not, it is baseless.
“ ‘Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]’ [Citation.] Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.)” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted.)
“The main technique of analysis under California law is to consider the nature both of the offense and the offender. (People v. Dillon (1983) 34 Cal.3d 441, 479.) The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendant’s individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d at p. 479; . . .) [¶] The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. (Harmelin v. Michigan [(1991)] 501 U.S. [957], 998 (conc. opn. of Kennedy, J.; People v. Dillon, supra, 34 Cal.3d at p. 477.)” (People v. Martinez (1999) 76 Cal.App.4th 489, 494; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213-1214.)
In case No. CC244901, defendant pleaded guilty to eight counts of committing a lewd act upon a child under 14, which are section 667.61, subdivision (c)(8) offenses. All of the counts stemmed from defendant’s separate acts in molesting two boys, six and 10 years old, respectively, on separate occasions. The boys were very vulnerable, because defendant was their regular babysitter. The boys’ parents entrusted their sons to his care, and he took advantage of their trust. The probation report also showed that defendant planned to commit at least some of the acts in advance: numerous photographs of the lewd acts were found during the investigation of the offenses.
At the time of sentencing, defendant was 23 years old and he had no prior juvenile or criminal record. However, in addition to the eight counts of lewd conduct, defendant also pleaded guilty to four counts of inducing a minor’s involvement in sexual conduct involving the same two victims, and one count of exhibiting harmful matter to a minor. He also admitted that he befriended the victims for the purpose of committing the lewd conduct offenses and that he had substantial sexual conduct with the victim. The nature of defendant’s sexual conduct upon two neighbor boys who he knew to be particularly vulnerable is the type of sexual conduct that warrants harsh punishment. After considering the offenses and the offender under the totality of the circumstances, the trial court was warranted in imposing a sentence that would separate defendant from society for a lengthy period of time. Accordingly, defendant has failed to establish that his sentence is so disproportionate to his offenses that it shocks the conscience or offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424; People v. Dillon, supra, 34 Cal.3d at p. 479.)
CC125318
As noted above, at the original sentencing hearing, the trial court imposed a six-year determinate term for the one offense in case No. CC125318, and ordered the term to be served concurrently with the indeterminate 90-year-to-life term it imposed in case No. CC244901. However, upon resentencing, the trial court imposed a six-year determinate term in case No. CC125318, and ordered it and the determinate terms in case No. CC244901 to be served consecutively to the indeterminate 45-year-to-life term it imposed in case No. CC244901. Defendant contends, and the Attorney General concedes based on the transcript of the resentencing hearing, that the trial court was unaware of its discretion to impose a concurrent term in case No. CC125318. Both parties request that we remand the matter once more for resentencing in case No. CC125318.
At resentencing in December 2006, the court explained to defendant that “some of your determinate cases are on the big case and the one determinate count is on the other case. I am required to lump the determinate sentences together and I did for 7 [years], 4 [months], and then do the indeterminate sentences which I did.” Defendant’s counsel stated, “I concur with that. And I also concur with [case No. CC125]318 was the understanding, my understanding was [case No. CC125]318 was always to run consecutive with docket ending in 901.” The court replied, “It has to. They do. That’s correct.”
In case No. CC125318, defendant pleaded no contest to one count of lewd conduct on a child under 14 (§ 288, subd. (a)), and admitted a special allegation of substantial sexual conduct (§ 1203.066, subd. (a)(8)). There is nothing in sections 288, 1203.066, or 667.61 that requires that the term imposed in case No. CC125318 be served consecutively to the terms imposed in case No. CC244901. Accordingly, the trial court retained discretion to impose a concurrent term in case No. CC125318 (§ 669). As the court originally sentenced defendant to a concurrent term in case No. CC125318, the court was aware of its discretion to do so again. Based on the comments of trial counsel at the second sentencing hearing that the sentence was “always to run consecutive,” and the court’s response that “[i]t has to. They do. That’s correct,” both parties request that this court remand the matter for resentencing. We find that, in an abundance of caution on this ambiguous record, it is appropriate to remand the matter to the trial court for it to exercise its discretion to impose concurrent or consecutive sentences. As the court chose the determinate term in case No. CC125318 as the principal term, and imposed consecutive one-third the midterm determinate terms in case No. CC244901, upon remand the court may resentence defendant on his other convictions, but the aggregate determinate term may not exceed seven years four months. (People v. Castaneda (1999) 75 Cal.App.4th 611, 614; People v. Burns (1984) 158 Cal.App.3d 1178, 1184.)
DISPOSITION
The judgment is reversed and the matter is remanded for resentencing in accordance with this opinion. On remand, defendant’s determinate term, imposed in addition to his indeterminate term, shall not be longer than seven years four months. After resentencing, the trial court shall prepare a new abstract of judgment and forward a copy of it to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., MCADAMS, J.