Opinion
E054696
07-31-2012
THE PEOPLE, Plaintiff and Respondent, v. REED SALAMEH MAAIA, Defendant and Appellant.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Marissa Bejarano, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF146018)
OPINION
APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed with directions.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
This is defendant Reed Salameh Maaia's second appeal in this case. Defendant was convicted of four counts of committing lewd conduct with a minor under the age of 14 and two counts of forcible penetration by a foreign object. He admitted that he had one prior serious or violent felony conviction. He was sentenced to 24 years in state prison. In his first appeal, we affirmed defendant's convictions but remanded the matter to the trial court for resentencing based on the reversal of the sentence on several counts. (People v. Maaia (May 25, 2011, E050105) [nonpub. opn.] (Maaia I).) Upon remand, the trial court denied defendant's motion to strike the prior conviction pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero), and he was again sentenced to 24 years in state prison.
Defendant claims in this second appeal that the trial court abused its discretion by denying his Romero motion and by failing to order a supplemental probation report. He also asks this court to correct the abstract of judgment.
I
PROCEDURAL BACKGROUND
Defendant was convicted in counts 1 through 4 of violating Penal Code section 288, subdivision (a)against a child under the age of 14 years. Count 1 occurred in 1998, and counts 2 through 4 occurred between 1999 and 2006. Defendant was convicted in counts 5 and 6 of forcible penetration by a foreign object. (§ 289, subd. (a)(1).) Defendant admitted he was convicted on August 1, 2003, of a prior serious or violent felony conviction. (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2).) The trial court denied his Romero motion brought to strike the conviction on all counts.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to the middle term of six years on count 1, doubled pursuant to the three strikes law, for a total of 12 years. On counts 2, 3, and 4, the trial court imposed a sentence of 12 years on each count (six years, doubled) and ordered that the sentences run concurrent to the sentence on count 1. On counts 5 and 6, the trial court imposed a sentence of six years (the low term of three years, doubled) on each count, and they were ordered to run consecutive to the sentence on count 1.
In the prior appeal, we agreed with defendant that counts 1 through 4 could have been committed prior to 2003 and therefore could not be subject to doubling under the three strikes law. However, we determined that counts 5 and 6 were committed after 2003 and could be subject to doubling. We remanded the case to the trial court in order for it to resentence defendant in light of our decision that the sentences in counts 1 through 4 could not be doubled.
Upon remand, defendant made an oral request for the trial court to reconsider his Romero motion. The trial court denied the Romero motion, as will be discussed in more detail, post.
The trial court vacated the prior sentence. It then sentenced defendant to 24 years in state prison. Defendant was sentenced to the middle term of six years on count 1, the principal term. The trial court imposed a sentence of 12 years (the middle term of six years, doubled) on count 5 and to six years (the low term of three years, doubled) on count 6. Counts 5 and 6 were to run consecutive to each other and to count 1.
II
FACTUAL BACKGROUND
A summary review of the facts shows that defendant starting molesting the victim, L. (his stepdaughter), when she was six years old and continued until the time she was 14 years old. In 1998, when L. was six years old, defendant rubbed his hand on her vagina and made her put her hand on his penis. From 1998 until about 2002, on at least five occasions, defendant made L. rub his penis with her hand. During this time, he also drove her to locations where he would either put his mouth on her vagina or have her put her mouth on his penis. When L. was in sixth grade, defendant touched her vagina and made her touch his penis. He also penetrated her vagina with his finger. After they moved to another house, defendant again rubbed her vagina and inserted his finger in her vagina. He only stopped when she started to cry. He did this two more times at this location. After L. turned 14 years of age, defendant only rubbed her vagina once.
III
ANALYSIS
Defendant contends in this second appeal that the trial court upon resentencing failed to properly exercise its discretion by refusing to strike his prior conviction. In addition, he contends that in the exercise of its discretion, the trial court should have ordered a supplemental probation report, and the failure to order a supplemental probation report requires yet another remand to the trial court for it to properly exercise its sentencing discretion.
A. Additional Factual Background
The resentencing upon remand was held on September 23, 2011. The trial court stated on the record that this court had determined that it had improperly applied the "so-called three strikes law . . . ." It then stated, "Basically, as I understand the Court of Appeal decision, counts 5 and 6, violations of Penal Code section 289, subdivision (a), subsection (1) . . . should be sentenced pursuant to the three strikes law. In this case, there was one strike proven. [¶] But Counts 1, 2, 3, and 4, violations of Penal Code section 288, subdivision (a) should not, based on the evidence at this trial, be sentenced pursuant to the three strikes law, and I made [an] error when I applied the three strikes law to . . . Counts 1 [through] 4, according to the Court of Appeal." The trial court asked the parties if that was their understanding of this court's opinion, and they both agreed.
The trial court then stated that it was able to reconsider the entire sentence. It stated, "To do that, I've had the benefit of refreshing my recollection regarding the case. I've had the benefit of reviewing the probation report that I reviewed initially when I sentenced [defendant]. That was the report dated November 6, 2009. I, of course, reviewed the Court of Appeal opinion. I reviewed the Information itself and the abstract as well as the sentencing minutes. I reviewed a sentencing memorandum submitted by the District Attorney's office dated as of August 25, 2011, and I reviewed a resentencing brief submitted by [defendant's counsel], dated as of September 22nd, 2011."
The trial court then stated its tentative sentence. It was required to impose mandatory consecutive sentences on counts 5 and 6. In determining whether to impose the low, middle, or upper term, the trial court noted that, "[b]ecause I've previously found the strike true, and I don't intend to revisit the issue of striking the strike, those terms would be doubled . . . ." It also noted that defendant was not eligible for probation.
The trial court commented that it considered the conduct in regard to the current offenses to be "fairly serious in the range of this type of conduct," that the victim was vulnerable, that the defendant and the victim had a parent/child relationship, that defendant committed multiple acts over a period of time, and that L. would likely have long-term emotional injury. It also noted that the prior strike was not the worst it had seen, that defendant did not have a significant criminal record, and that defendant might be able to live in society successfully. It felt that 24 years in state prison was a reasonable sentence. The People agreed.
Defense counsel objected to the sentence. He renewed the original Romero motion on the ground that the strike prior was old and argued that if the court was considering a complete resentencing, it should reconsider striking the prior conviction. Defense counsel also argued that the current offenses did not involve violence and requested the low term sentence.
The trial court stated, "[T]he points you make, [defense counsel], I think are good points, but they're ones that I think point to the 24-year sentence as opposed to a 30-year type sentence, . . . and with respect to striking the strike, I went through that analysis, and I think you're correct. I can reconsider your motion to strike under 1385. I've had the benefit of everyone having briefed that earlier, I've had the benefit of the Court of Appeal opinion affirming my exercise of discretion in that regard, and I'm not persuaded to change my view. I think that the strike should not be dismissed."
Defendant was then sentenced, as detailed, ante.
B. Romero Motion
We review the trial court's ruling refusing to strike a prior conviction for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 504.) The discretion the Supreme Court recognized in Romero is extremely limited, and may only properly be exercised in the unusual case where, "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." (People v. Williams (1998) 17 Cal.4th 148, 161.)
A trial court at resentencing is entitled to consider any circumstances in reaching it sentence, even those circumstances occurring after the original commitment. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 463.)
Here, at the time of resentencing, the trial court reviewed its denial of the original Romero motion. It also reviewed the previous probation report. As we set forth in detail in the prior opinion, the trial court did not abuse its discretion at the time of the original sentencing by refusing to strike the prior conviction. At that time, it provided a detailed explanation as to why it was refusing to strike the conviction, taking into account defendant, the nature of the prior offense, and the fact that the prior conduct occurred close in time to the current offenses.
At the time of resentencing, the trial court, in reaching its sentence, revisited the issue. It felt that the conduct in the current offenses was fairly serious, the victim was vulnerable, defendant took advantage of the parent/child relationship, and L. would likely have long-term emotional injury. It also noted that the prior strike was not the worst it had seen, defendant did not have a significant criminal record, and defendant might be able to live in society successfully. Further, it considered defendant's resentencing brief, in which the only argument made was that the sentence should be reduced to 14 years, but admitted the prior strike could be applied to counts 5 and 6.
Defendant, at the time of resentencing, made no offer of evidence regarding his conduct in prison since the original commitment. The trial court noted that defendant would be capable of living in society at some point, but, based on the nature of the prior conviction and the seriousness of the current offense, that did not warrant striking the prior conviction. There is nothing in the record regarding defendant's conduct after the original commitment, and defendant does not provide an offer of even the type of evidence that the trial court should have considered. It is inconceivable that defendant's prison record would have impacted the trial court's decision to strike the prior conviction. The trial court properly exercised its discretion in denying his Romero motion.
C. Supplemental Probation Report.
Defendant claims that the trial court abused its discretion by failing to order a supplemental probation report. At the time of sentencing, the trial court asked defendant's counsel "[A]t this time, [defense counsel], on behalf of your client, you waive formal arraignment for judgment, time for sentencing, further referral to probation?" Defense counsel responded, "Yes."
We have previously found that where a defendant fails to request a supplemental probation report when he is ineligible for probation at resentencing and voices no objection when resentencing occurs without a supplemental probation report, the issue requiring a supplemental probation report is waived on appeal. (People v. Johnson (1999) 70 Cal.App.4th 1429, 1432-1433 [Fourth Dist., Div. Two]; see also People v. Begnaud (1991) 235 Cal.App.3d 1548, 1555-1556 and fn. 7 [Fourth Dist., Div. Two.) We see no reason to revisit the issue in this case, especially in light of the fact that defendant affirmatively waived a referral to the probation department, and conclude defendant has waived the issue on appeal.
Defendant was ineligible for probation due to his conviction of section 289, subdivision (a)(1). (§ 1203.065, subd. (a).)
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III
ABSTRACT OF JUDGMENT
Defendant requests that this court correct the abstract of judgment. Courts may correct clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Defendant notes that the abstract of judgment reflects that he was convicted in counts 5 and 6 of violations of section 288, subdivision (a)(1). However, he was actually convicted of violations of section 289, subdivision (a)(1).
Defendant next points to the fact that was resentenced on September 23, 2011, but the abstract reflects that the date of hearing was January 12, 2010. On the second page of the abstract of judgment, it is noted that the execution of sentence was imposed on September 23, 2011 "Re: Remittitur." Although no change is necessary, since we are ordering correction of the abstract of judgment, it would be better notated that the execution of sentence was at "resentencing per decision on appeal" with the date of September 23, 2011, on page two.
IV
DISPOSITION
The superior court clerk shall prepare an amended abstract of judgment reflecting that defendant was convicted in counts 5 and 6 of violations of Penal Code section 289, subdivision (a)(1). Further, the abstract of judgment should be amended on page two to check paragraph 13, subdivision (b), with the addition of the date of September 23, 2011. The corrected abstract of judgment should be forwarded to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.