Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF146018 Roger A. Luebs, Judge.
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, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Defendant Reed Salameh Maaia molested his stepdaughter between the time she was six and 14 years old. He 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.
Defendant claims on appeal that the trial court abused its discretion by refusing to strike his prior conviction as to some or all of the counts pursuant to People v. Superior Court (Romero)13 Cal.4th 497 (Romero) based on the fact that the prior conviction occurred after he committed some of the acts that constituted the crimes in this case.
I
PROCEDURAL BACKGROUND
Defendant was convicted of four counts of violating Penal Code section 288, subdivision (a) against a child under the age of 14 years. Count 1 occurred in 1998, and the other three counts (counts 2-4) occurred between 1999 and 2006. Defendant was convicted in counts 5 and 6 of forcible penetration by a foreign object. (§ 289, subd. (a)(1).) In a bifurcated proceeding, after waiving his right to a trial, defendant admitted he was convicted on August 1, 2003, of a prior serious or violent felony conviction. (§§ 667, subds (c), (e)(2)(A)) and 1170.12, subd. (c)(2).) The trial court denied defendant’s motion to strike the prior conviction as to all counts.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced under the three strikes law to 24 years in state prison, as set forth in more detail, post.
II
FACTUAL BACKGROUND
A. People’s Case-in-Chief
The victim, L.C., was 16 years old at the time of trial. Defendant was L.’s stepfather and had been with L.’s mother, M.M., since L. was one year old. L. considered defendant to be her father.
In 1998, L., defendant and the rest of the family lived in an apartment in Riverside. L. was six years old at the time. They lived at the location for less than one year. While living there, L. had misbehaved, and defendant had hit her on the buttocks. Several days later, defendant told L. to come into his bedroom so that he could see if he had hurt her when he hit her. Defendant told her to lie down on the bed. Defendant pulled down her pants and underwear. Defendant rubbed his hand on her vagina. Defendant had L. put her hand on his penis. He grabbed her wrist and moved her hand up and down. When L. got up to the leave the room, defendant told her not to say anything to anyone. L. complied because defendant was physically abusive to her and her family.
L. and her family moved to a house in Riverside (House No. 1) sometime after 1998. They lived at the location for three to four years. On at least five occasions when they lived at that location, defendant had L. rub his penis with her hand. On another occasion, defendant put his mouth on her vagina and moved his tongue up and down on the outside. Defendant also had L. put her mouth on his penis, but nothing came out.
When L. was in third grade, she fell asleep while riding in the car with defendant. When she woke up, she was “laying on his lap, and they were parked near an orange grove. Defendant unzipped his pants and pulled out his penis. L. tried to move her head, but defendant told her to put her mouth on his penis. L. was afraid. Defendant ejaculated; L. stated that is tasted “bitter” and “gross.” On several other occasions, defendant took L. to the orange grove and had her touch his penis with her hand. Also, while they were living at House No. 1, defendant put his finger on her vagina another time while she was asleep on the couch.
L. initially testified that defendant had put his finger inside her vagina while they lived at House No. 1. However, she quickly clarified that he only put his finger on, not in, her vagina at House No. 1.
Defendant went to jail for some time, and L. and her family lived in motels. They could not afford their house after defendant went to jail, as he had provided for the family. They had a hard time finding enough food to eat.
In sixth grade, L. and her family moved to another location in Riverside (House No. 2). Defendant moved in with them after being released from jail. More than five times while they lived at that location, defendant made L. touch his penis, and he touched her vagina.
L. was asleep one time and defendant started touching her vagina. He placed his finger inside her vagina. He moved his finger, and it hurt L. L. tried to move his hand but he would put it back. L. said nothing to defendant or her sister (who was also in the room at the time) because she did not want defendant to turn his attention to her sister.
L. and her family moved to another home in Riverside (House No. 3). One time, defendant started rubbing her vagina. Defendant then inserted his finger into her vagina. L. started crying, so defendant stopped. Defendant put his finger in her vagina at least two more times while they were living at that location. Defendant also had L. touch his penis while they lived there. After L. turned 14, defendant rubbed her vagina one time.
When L. was in third grade, she told a friend what defendant was doing to her. Her friend told her to tell M., but L. was afraid that defendant would hurt her and her family. L.’s friend did not tell anyone about the abuse. L. eventually lied to her friend and told her the abuse had stopped.
When L. was 15 years old, she confronted defendant. He apologized to her but told her not to tell anyone. L. was afraid that her family would end up homeless if she told anyone.
In September 2008, defendant and L. got into a fight. The next day at school, L. spoke with a counselor and told her that defendant had been touching her. The police and child protective services were called. L. did not tell her mother about the abuse until after she had spoken with the counselor at school. When L. finally told her mother, L. was crying and was very upset.
M. confronted defendant about L.’s allegations. M. asked defendant why he had hurt L. Defendant responded that he was sorry and that there was something wrong with him. He said he was “sick” and needed help. Defendant told M. that the sexual abuse had started when L. was six years old and ended when she was 13. Defendant also said that some of the molestations took place near an orange grove.
Defendant begged M. not to cooperate with the police. He wrote her a letter stating that this was his fault, he did not mean for this to happen, and he did not expect M. to forgive him. M. “absolutely” believed L.’s accusations.
B. Defense
Defendant’s sister and brother testified that they never saw inappropriate touching between L. and defendant. L. was not depressed or sad growing up. Defendant denied to them that the molestations happened. Defendant explained to them that L. was lying because he was too strict.
Defendant testified on his own behalf. He was 38 years old at the time of trial. Although defendant was not L.’s biological father, he had raised her as his own. Defendant admitted that he would hit L. on the bottom with a belt as discipline. M. was always present when he disciplined the children. Defendant denied that he ever touched L. when she was six years old. He never took her to the orange groves alone.
Defendant attended anger management in conjunction with his jail time for committing domestic violence against M. and handled disciplining differently once released. He denied he ever touched L. inappropriately after her 14th birthday.
Defendant apologized at trial for being verbally and physically abusive and strict with his children. Defendant denied to M. that he did anything to L. Defendant said L. made “ridiculous” allegations about when and where the abuse occurred. Defendant had never taken L. to the orange groves alone and had not touched her inappropriately. L. lied about what happened because she wanted to see her biological father and be with her boyfriend. Defendant apologized in his letters for the mental and physical abuse to M. and the family, not for any sexual abuse.
III
ROMERO ERROR
Defendant contends that the trial court abused its discretion by refusing to dismiss his prior strike convictions as to all or even some of the counts. He claims that since the acts constituting the crimes in this case could have been committed before he was convicted in August 2003, those crimes could not be enhanced by the prior conviction. Defendant requests that this court remand for resentencing. The People respond that the trial court did improperly sentence defendant but ask this court to resentence defendant on appeal.
A. Factual Background
Defendant filed a written motion to dismiss his prior strike conviction pursuant to Romero. Defendant stated that in 2003, he had pleaded guilty in a domestic violence case to making criminal threats (§ 422). He had received and successfully completed probation in that case. He had no other criminal record. He presented several character letters.
The People opposed the motion. They presented the facts of the prior conviction: On May 18, 2003, defendant and M. had an argument inside their home. During the argument, defendant dragged M. by the hair, hit her in the head, choked her, and held a knife to her throat. He said to her, “One of us will be leaving in an ambulance.” He was convicted of violating section 422, assault with a deadly weapon (§ 245, subd. (a)(1)) and domestic violence (§ 273.5, subd. (a)).
The People noted that defendant had started molesting L. at a young age and continued into her teenage years. The evidence supported over 30 sex acts. Defendant had denied the allegations and had shown no remorse. He continued his abuse of L. even after he had spent time in jail.
After defendant was convicted on the substantive crimes at trial, he admitted that he committed the crime of making criminal threats within the meaning of sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1).
The trial court considered the Romero motion at the time of sentencing. It had reviewed defendant’s written motion and the People’s opposition. It tentatively had decided to deny the motion.
Defendant argued that the nature of the prior crime warranted it being stricken by the trial court. It involved a threat made during a domestic violence incident. In domestic violence cases, threats were the “norm.” Additionally, it was defendant’s only strike prior. Defendant was not a career criminal.
The People argued the prior crime was not simply that he had threatened M. but also that he had dragged her by her hair, cut her with glass, and put a knife to her throat. Further, defendant had molested L. for “nearly a decade.” When he got out of jail, he continued to molest L. He was not deterred by one year in jail.
Defendant then noted that his strike conviction had occurred after some of the acts in this case. He basically argued that if the qualifying strike offense occurred after some or all of the current offenses occurred, the strike should not be considered. In other words, it was not the date of conviction on the current offenses that controlled whether the strike applied, but the date the offenses occurred. Defendant argued, “And if there is some finding by this Court that the current charges actually started prior to the incident that relates to the strike prior, then I don’t even think it is proper to consider it a strike for purposes of this case.”
The trial court disagreed and believed that the pertinent date was the conviction date for the current offenses. Defendant then argued that the People had to prove that the felony conduct to which this strike is being applied had to predate the strike conviction. The People responded that some of the conduct occurred prior to the strike conviction and some after but argued, “... I believe it is a moot point either way the case law goes. I think it doesn’t really matter for our purposes today.”
The trial court ruled, “Well, I’m not making any specific finding in that regard, but the record is certainly maintained by [defense counsel]’s comment in that regard. [¶] I’m disinclined to change my tentative decision. I’m going to deny the motion. The domestic violence incident was an act of serious violence in addition to the crimes that he was convicted of recited by [the prosecutor]. It also appears from the probation report that the 12022 subdivision (b) subsection (1), personal use of a deadly weapon, was found true. He got a year sentence then, so it must have been a pretty serious event. [¶] So basically the strike that you want to have strike[n] is a true violent incident. And wasn’t simply a matter of folks shouting at each other. The current offenses are true violent crimes in the sense of hurting someone else by sexually assaulting them. So that is clearly within the intent of the three strikes law. The prior conduct is very close in time. There has been no significant kind of... wash-out period thereafter. So I simply can’t make the findings necessary to justify striking the prior for purpose of sentencing. And the motion is denied.”
At sentencing, the trial court imposed the middle term of six years on count 1, doubled pursuant to the three strikes law, for a total of 12 years. Count 1 was deemed the principal count. 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 forcible penetration counts, the trial court imposed a sentence of six years (the low term of three years, doubled) on each count. The trial court chose the low term on these counts, stating, “... I think on the spectrum of sexual penetration by force this is relatively on the low end. I think the aggravating aspect of it will adequately be taken into account in the other sentencing decisions I’ve made.” Counts 5 and 6 were ordered to run consecutive to the sentence on count 1. Defendant received a total sentence of 24 years in state prison.
B. Analysis
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 governing canons are well established: “This discretion... is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]” [Citation.]... “[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” [Citation.]’ [Citation.] [¶] The abuse of discretion standard ‘is deferential.... But it is not empty.’ [Citation.]” (People v. Gaston (1999) 74 Cal.App.4th 310, 314-315.)
“The purpose of [the three strikes law] is to deter and punish recidivism by making repeat offenders serve longer sentences. [Citation.]” (People v. Williams (1996) 49 Cal.App.4th 1632, 1638.) In ruling whether to strike or vacate a prior conviction allegation, 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 and hence should be treated as though he had not previously been convicted of the prior crimes. (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant does not appear to argue that the trial court abused its discretion by refusing to strike the prior in its entirety based on his prospects and criminal history. Nor would we find it an abuse of discretion. Defendant’s prior and current crimes were serious and did not warrant striking the prior.
Defendant’s claim is that the trial court misunderstood its discretion to strike the prior conviction as to the counts that included incidents occurring prior to the time that he suffered the prior strike conviction. He argues that remand for resentencing is required in order for the trial court to exercise its informed discretion. The People concede that count 1 occurred in 1998, prior to the strike conviction, and that the sentence could not be subject to doubling pursuant to the three strikes law. However, the People contend that both counts 5 and 6 and some of the acts in counts 2, 3, and 4, occurred after the strike conviction. They suggest that this court resentence defendant on appeal on count 2 as the principal term and the remaining sentence remains unchanged.
A prior felony has to occur before the crime for which the enhancement is pleaded. (People v. Flood (2003) 108 Cal.App.4th 504, 506-508.) “‘[P]rior felony convictions” in section 667, subdivision (c), falls with the general rule...: when guilt is established, either by plea or verdict, the defendant stands convicted and thereafter has a prior conviction.” (People v. Williams, supra, 49 Cal.App.4th at p. 1638.) The People bear the burden to prove the prior felony conviction allegation. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1020.)
Here, the prior conviction used to enhance defendant’s sentence was from a conviction suffered on August 1, 2003. As conceded by the People, count 1 was alleged in the amended information to have been committed in 1998. The evidence presented was that defendant committed the lewd conduct in count 1 in 1998. As such, since the conviction for making terrorist threats occurred in 2003, it could not be used to enhance count 1.
The People claim that some of the acts that constituted the convictions in counts 2, 3, and 4 occurred after 2003. In the amended information, the People pleaded that the acts occurred between 1999 and 2006. The evidence presented by the People detailed several acts occurring prior to 2003 and several other after 2003. The People did not elect to support the convictions by evidence that the only acts constituting the crimes in counts 2, 3, and 4 occurred after 2003. The jury was given a unanimity instruction that they must all agree on the acts that constituted the crimes in counts 2, 3, and 4. The jury could have concluded that all of the acts constituting the convictions in counts 2, 3, and 4 occurred prior to 2003. Based on the instructions and argument by the People, there is no way on the record for this court, or the trial court, to conclude that counts 2, 3, and 4 all occurred prior to the conviction in August 2003. Accordingly, these counts could not be enhanced by the prior conviction.
This leaves counts 5 and 6. In the amended information, the People alleged the acts occurred between 1999 and 2006. At the time of trial, L. originally testified that the penetration of her vagina occurred while living in House No.1, which was before 2003. However, later in her testimony, she clarified that at no time while living in House No. 1did he penetrate her. The remaining evidence on these counts was that, when defendant was released from jail and they lived in House Nos. 2 and 3, defendant penetrated her vagina with his finger. Although the amended information had stated the acts occurred between 1999 and 2006, the evidence presented at trial showed that the only acts were committed after 2003. As such, counts 5 and 6 could be enhanced by the prior conviction.
Defendant only refers to the reporters transcript page 85 to argue one of the five acts of penetration occurred prior to 2003. However, L. clearly clarified no such acts occurred prior to 2003.
We cannot correct the sentence on appeal. At the time of sentencing, the trial court stated it was imposing the low term on counts 5 and 6 due to the aggravated nature of the rest of the sentence. Upon resentencing, the trial court is allowed to “reconsider an entire sentencing structure in multicount cases where a portion of the original verdict and resulting sentence has been vacated by a higher court.” (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258; see also People v. Craig (1998) 66 Cal.App.4th 1444, 1448, 1450 [“after successful appeal of a conviction a defendant may not upon reconviction be subjected to an aggregate sentence greater than that imposed at the first trial” but “an unlawful or unauthorized sentence may be increased without offending double jeopardy”].) We believe remanding for resentencing so the trial court can exercise its discretion in accordance with this opinion is appropriate.
IV
DISPOSITION
The sentence is reversed and the matter is remanded to the trial court for resentencing in accordance with the opinion. In all other respects, we affirm the judgment.
We concur: MILLER, J., CODRINGTON, J.