Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. INF042911. H. Morgan Dougherty, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
Defendant and appellant Michael Reid McFeely appeals after he pleaded guilty to one count of continuous sexual abuse of a child, and admitted a prior serious or violent strike felony. He contends that he was improperly sentenced and that his counsel was ineffective in the sentencing proceedings. We reject defendant’s contentions and affirm.
FACTS AND PROCEDURAL HISTORY
Between approximately 1992 and 1994, the victim was between eight and 10 years old. The victim’s stepfather had allowed defendant, who was homeless, to reside in the home for a short period of time. Defendant, who was about 20 years old, was described as “a[n] irresponsible young adult who failed to maintain a steady job or pay rent[;] thus he always asked for money and food.” The relationship between the victim’s stepfather and defendant developed into a landlord and tenant relationship. In time, defendant was considered a family friend, and he often babysat the victim and her siblings, even after he had moved out of the residence.
At the time, the victim regarded defendant as an “older brother who she enjoyed playing with.” Defendant invented a “‘question game’” for them to play, which led him to ask the victim if she was willing to perform certain acts with him. The victim recalled one of the games to include giving defendant a “‘hand job.’” At the time, the victim was unaware of what the game or the questions meant, as defendant made it all seem “normal and ‘ok.’” Among other things, defendant also frequently visited the victim in her room and rubbed her breasts and vagina. He would also place his fingers inside her vagina, and she recalled that at times he kissed and sucked her breasts. Sometimes, he took off his clothes and had her touch his penis. He wanted her to place her mouth on his penis, which she refused, but she recalled that he sometimes placed his mouth on her vagina. Defendant would sometimes hold the victim on his lap and “‘rock’” her; he also told her that he loved her.
The victim’s family eventually moved away. The victim reported nothing until 2002, when she was 18 years old. The victim told her therapist about the molestations and the victim’s mother then called police, who began to investigate.
Police eventually located defendant in the State of Washington, where defendant had been incarcerated for another felony child molestation.
Defendant’s prosecution was delayed, as the information was not filed until March 2006. The information alleged one count of continuous sexual abuse of a child under age 14, under Penal Code section 288.5. Trial began in June 2007, but on the second day of trial defendant decided to change his plea. The prosecutor filed an amended information adding a prior strike allegation, a burglary conviction in 1991. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) Defendant pleaded guilty to the charged offense and admitted the strike prior.
The court sentenced defendant to state prison for a term of 32 years; the aggravated term of 16 years was doubled as a second strike offense.
The trial court declined to exercise its discretion to dismiss defendant’s prior burglary strike conviction. (See, e.g., People v. Williams (1998) 17 Cal.4th 148, 161; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).)
Defendant appeals his sentence, and urges that his counsel represented him ineffectively with respect to sentencing.
ANALYSIS
I. The Imposition of Sentence Under Amendments to the Determinate Sentencing Law Did Not Result in an Ex Post Facto Violation
Defendant committed the charged offense between 1992 and 1994. He pleaded guilty in 2007. The trial court indicated at sentencing that it would apply recent amendments to the determinate sentencing law (DSL) in this case.
At the time defendant committed the offense, the DSL provided for a range of three possible sentences as to most offenses; the middle term was presumptively to be imposed unless the court made factual findings as to the preponderance of aggravating or mitigating circumstances to justify imposing the aggravated or mitigated terms, respectively.
In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the United States Supreme Court concluded that the former DSL sentencing scheme violated the Sixth Amendment’s guaranty of a jury trial by assigning to the trial court, rather than to the jury, the authority to make the factual findings that could subject a defendant to an aggravated term. (Cunningham, at p. 871; see also People v. Black (2007) 41 Cal.4th 799, 805 (Black).)
Senate Bill No. 40 (S.B. 40), amended Penal Code section 1170 in response to Cunningham. The Cunningham court had suggested that the DSL could be rendered compatible with the jury trial guaranty by allowing trial courts broad discretion to select a term within a statutory range. The Legislature thus amended Penal Code section 1170 to provide: (1) the middle term was no longer the presumptive term to be imposed, (2) the trial court was granted discretion to impose any of the three available terms, but (3) the sentence choice had to be based upon reasons stated.
In addition to the legislative response to Cunningham, the California Supreme Court, in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), exercised its inherent judicial authority to bring its sentencing procedures within the strictures of the United States Constitution, by adopting the same method provided in S.B. 40: namely, to exercise a broad discretion in imposing any available sentence, while stating reasons for its sentencing selection. The Sandoval court also held that the United States Constitution did not prohibit applying the revised sentencing procedures to defendants whose crimes had been committed before the decision in Sandoval. (Sandoval, at p. 857.) In addition, under S.B. 40’s “removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance[, the new procedure was] not intended to—and would not be expected to—have the effect of increasing the sentence for any particular crime.” (Sandoval, at p. 855.) Whether there could or would be any “increased punishment” as to any defendant as a result of the sentencing reforms was purely conjectural or speculative, and thus insufficient to demonstrate any ex post facto effect.
Defendant recognizes that the California Supreme Court has decided the issue of ex post facto effect of S.B. 40 adversely to his position, but argues that Sandoval was incorrectly decided, and that it does have the actual effect of increasing punishment, by making it “easier” to impose an aggravated sentence than it had been under the former DSL provisions.
We reject the contention, but in any case, find defendant’s argument inapplicable here. In the first place, defendant pleaded guilty and he agreed that the court could rely on the police report to make any additional factual findings about the offense. Thus, under either the old or the new sentencing scheme, defendant had admitted all the facts of the offense, he had admitted his prior conviction, and he admitted that the trial court could rely on any factual matters in the police report. (Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely) [an exception to Sixth Amendment right to jury trial on aggravating factors is, any facts admitted by the defendant].)
In the second place, under either the old or the new sentencing procedures, defendant’s criminal record is another matter which the court may consider without any interference with the Sixth Amendment. (See Blakely, supra, 542 U.S. at p. 303.) Here, defendant’s record showed a misdemeanor theft conviction when he was 18 years old, and a prior strike conviction for burglary when he was 19 years old. Defendant had progressed from misdemeanor to serious felony offenses. For his burglary conviction, defendant was shown great leniency, as he was granted probation. Yet, within the next year, when defendant was age 20, he began molesting the victim. This conduct continued unchecked for the next two years. Defendant’s criminal conduct with the victim stopped only when she and her family eventually moved to another state.
Defendant’s criminal record rendered him eligible for imposition of the aggravated term, under either the old or the new sentencing procedures. “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black, supra, 41 Cal.4th at p. 813.)
In the third place, there was no “ex post facto” effect. The ex post facto clause prohibits laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Collins v. Youngblood (1990) 497 U.S. 37, 43 [111 L.Ed.2d 30, 110 S.Ct. 2715].) “The basic purpose of the clause is to ensure fair warning of the consequences of violating penal statutes, and to reduce the potential for vindictive legislation.” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171.) The standard for determining whether a law violates the ex post facto clause has two components, “a law must be retrospective—that is, ‘it must apply to events occurring before its enactment’—and it ‘must disadvantage the offender affected by it,’ . . . by altering the definition of criminal conduct or increasing the punishment for the crime . . . .’” (Lynce v. Mathis (1997) 519 U.S. 433, 441 [137 L.Ed.2d 63, 117 S.Ct. 891].)
Defendant’s claim here must fail on the requirement of “disadvantage to the offender” as a result of the changes. Here, defendant was unquestionably eligible for the aggravated sentence under either the old or the new sentencing scheme. Thus, there was no “increase” in punishment for which he was eligible. Although the former version of the DSL contained a presumption that the middle term would be imposed, that presumption was necessarily defeated ab initio by defendant’s clear eligibility for the aggravated sentence. There is no realistic possibility, under any standard of review, that defendant would have received any term but the aggravated term for this offense.
Even if defendant’s sentence had been considered under a scheme requiring presumptive imposition of the middle term in the absence of aggravating or mitigating circumstances, all of the circumstances of this case that could be found by a trier of fact militated toward the aggravated term. As noted, defendant’s prior criminal record was poor. Even if the burglary strike offense was relatively remote as of the time of sentencing, the conduct constituting the present offense had taken place soon after the burglary conviction, and went on continuously for a period of two years. Defendant had committed the presently charged crime by abusing a position of trust, and he took advantage of a vulnerable victim. He expressed ostensible remorse for his actions, but he betrayed by his conduct that he had no true remorse, no true understanding of what he had done. In the interval between commission of this offense and his eventual arrest and trial, he had instead committed another offense of the same kind by the same means: He molested his live-in girlfriend’s daughter. Defendant had again taken advantage of a position of trust to gain regular access to and victimize a vulnerable young girl.
Defendant failed to learn from his mistakes, but continued to reoffend. He did not profit from the leniency that had been shown him in the past, but committed more crimes within a relatively short period of time.
There is nothing in the circumstances of this crime, or in defendant’s background or criminal history, which would support the imposition of any sentence other than the aggravated term, under either the old or the new DSL sentencing procedures. Defendant suffered no “disadvantage” as a result of the amended procedures. His ex post facto claim is therefore without merit.
II. The Court Did Not Abuse Its Discretion in Failing to Dismiss Defendant’s Strike Prior
Defendant next urges that the trial court abused its discretion in failing to dismiss his prior strike conviction. (Romero, supra, 13 Cal.4th 497.)
In deciding whether to dismiss a strike prior, the court should determine 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 [three strikes] 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, supra, 17 Cal.4th at p. 161; see People v. Garcia (1999) 20 Cal.4th 490, 498-499.)
Defendant correctly recognizes that we review the trial court’s determination under a deferential, abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 376.) Although he also correctly recognizes that cases finding an abuse of discretion in declining to dismiss a strike prior will be “‘extraordinary’” (id. at p. 378), he contends that his is just such a rare case.
Defendant urges that the present offense took place between 15 and 13 years before sentencing. His burglary strike conviction took place approximately 16 years before sentencing, when he was 19 years old. Thus, he argues, the strike conviction was “remote,” and he did not have any additional theft offenses since then.
The “current” offense was also relatively remote, having been committed when defendant was still a young man, age 20 to 22 years. Although defendant had a new conviction for a sex offense in Washington State, he “had an 11 year period of time when he was not in custody during which he sustained no additional convictions.” Defendant complains that, “notably absent from the court’s comments is any mention of [defendant’s] acknowledgment of guilt, and his expression of remorse.” Defendant believes that the trial court “failed to determine how long [defendant] should be kept as a public charge, and after what period of incarceration he would no longer be likely to reoffend.” He urges that 16 years (defendant was 35 years old at the time of sentencing) should be sufficient, as he would not be released until he was in his late 40’s.
Defendant’s contention does not withstand scrutiny. He has failed to show that he does not come within the spirit of the three strikes law. Defendant’s burglary conviction may be relatively remote, but soon after that conviction, he embarked on the present offense. The present offense was a continuous and ongoing nightmare for the victim, who was repeatedly abused for a period of two years. Defendant was not brought to account for that offense until approximately 10 years after it began, when the victim finally reported it. When law enforcement officers began to investigate, they finally located defendant in prison in Washington, where he had been convicted of a similar offense against another young girl.
That defendant did not commit another crime—at least, not an adjudicated one—for a period of 11 years, pales in significance in light of the new crime he did commit; again, he had taken advantage of a position of trust, and regular access, to molest a minor female child in a household where he resided. Far from showing that defendant could ever be considered “safe” to be released into society, his new offense demonstrates the opposite: No matter how much time has passed, he cannot refrain from new offenses if presented the opportunity. Indeed, he was unable to comply with the requirements of his sexual offender treatment program and was remanded to state prison; even inside prison, he was disciplined for continued prurient interest in the form of a “game” concerned with minors and sex acts.
Defendant’s prior performance was poor; his prognosis was poor; he failed to benefit from lenient consideration; he failed to benefit from treatment programs; he did acknowledge some measure of guilt, but continued to minimize his conduct; he verbally expressed remorse, but his actions betrayed little insight into the harm he had caused. In short, defendant falls squarely within the concerns of the three strikes law; his background, his prospects, his criminal record all bespeak a need to segregate him from society for a substantial period of time.
III. The Court Did Not Abuse Its Discretion in Imposing the Aggravated Term
Defendant argues that even under the revised DSL sentencing procedures, the court abused its discretion in imposing the aggravated term, “because the general objectives of sentencing and the interests of justice are not served by such an excessive sentence.” He further urges that the factors the court relied upon were not sufficiently supported by the record.
The general objectives of sentencing, as defendant points out, are contained in California Rules of Court, rule 4.410, and include: “(1) Protecting society; [¶] (2) Punishing the defendant; [¶] (3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses; [¶] (4) Deterring others from criminal conduct by demonstrating its consequences; [¶] (5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration; [¶] (6) Securing restitution for the victims of crime; and [¶] (7) Achieving uniformity in sentencing.”
Defendant argues that his sentence of 32 years was excessive. He was 35 years old at the time of sentencing. He committed the instant offense when he was in his early 20’s. If he received the doubled middle term, 24 years instead of 32, that sentence would “more than adequately” meet the sentencing objectives.
He also urges that some of the court’s factual findings were not supported by the record. The trial court did mistakenly refer to defendant’s in-prison disciplinary offense as “sexually inappropriate behavior with young people,” whereas it appears that the disciplinary offense could not actually have involved minors. Nevertheless, the mistake does not undermine the finding that defendant was still behaving inappropriately where the subject of sex with minors was concerned.
Defendant urges that the court’s remark that his criminal history was “extensive” was unsupported by the record. Although there certainly may be criminal records which are more extensive, the characterization is still applicable to defendant. He committed a misdemeanor theft offense at age 18, and graduated to felony burglary at age 19. In his early 20’s he carried on a continuous sexual abuse of the victim here. There is a gap of several years before defendant’s next adjudicated offense, but it was again a molestation of a young girl with whom defendant stood in a position of trust. The gap in the record may not show that defendant offended continuously, but it also does not show that defendant is in any way rehabilitated from reoffending, or that his conduct is any safer for society. His record is “extensive” in length of time without rehabilitation, if not in length of time without more adjudications. After his latest conviction, he violated a treatment program, and he also incurred disciplinary action. In addition, he was convicted of failure to register as a sex offender. Defendant clearly remained a highly dangerous individual; the court’s characterization of him as a sexual predator was well warranted by the facts.
Imposition of the aggravated term in this case was well supported by the facts, and admirably serves the purposes of sentencing. Defendant’s contention otherwise is without merit.
IV. Defendant’s Claim of Ineffective Assistance of Counsel Fails
Defendant next contends that his trial counsel was ineffective for failing to object to the court’s imposition of the aggravated term, either in terms of his ex post facto claim, or as an abuse of discretion.
“‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof.’” (In re Avena (1996) 12 Cal.4th 694, 721.) Failure on either prong will defeat the claim. In many cases, it will be unnecessary to consider whether counsel’s performance was deficient: “‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079.) That is precisely the result here: Defendant cannot show that his counsel’s conduct resulted in any prejudice to him. Regardless of which sentencing procedure was followed, he was eligible for, and properly received, the aggravated sentence. Defendant cannot show that the result would have been any different, regardless of counsel’s alleged deficiencies.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., King J.