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People v. Owten

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 17, 2012
F061880 (Cal. Ct. App. Feb. 17, 2012)

Opinion

F061880

02-17-2012

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM OWTEN, Defendant and Appellant.

Stephen Merritt Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF131028A)


OPINION


THE COURT

Before Gomes, Acting P.J., Kane, J. and Detjen, J.

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Stephen Merritt Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellant, William Owten, of mayhem (count 1/Pen. Code, § 203), a lesser included offense of the aggravated mayhem offense charged in that count, and assault on a peace officer with a deadly weapon, other than a firearm, or by means of force likely to produce great bodily injury (count 2/§ 245, subd. (c)), assault with a deadly weapon, other than a firearm, by means of force likely to produce great bodily injury (count 6/§ 245, subd. (a)(1)) and three counts of resisting an executive officer (counts 3, 4, & 5/§ 69). The jury also found true a great bodily injury enhancement (§ 12022.7) in counts 2 and 3. In a separate proceeding the court found true a serious felony enhancement and allegations that Owten had three prior convictions within the meaning of the three strikes law.

Unless otherwise indicated, all further statutory references are to the Penal Code.

On February 4, 2011, the court denied Owten's motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike two of his prior strike convictions and sentenced him to an indeterminate term of 100 years to life, plus eight years as follows: consecutive terms of 25 years to life on counts 2, 4, 5 and 6, a five-year serious felony enhancement, a three-year great bodily injury enhancement, and stayed terms on counts 1 and 3.

On appeal, Owten contends the court abused its discretion when it denied his Romero motion. We affirm.

FACTS

On February 16, 2010, shortly before 8:00 p.m., Martin Garcia was drinking at his home in Bakersfield when Owten approached him and forcefully asked him for money. Garcia told Owten to go to work and not to be asking him for money. Owten became upset, chased Garcia, and struck him on the head with a bottle. Owten then bear-hugged Garcia and punched him twice on the head. After Garcia fell to the ground, Owten kicked him on the head four to five times and stomped on him before walking away, leaving Garcia bleeding profusely.

Bakersfield Police Officers Jess Beagley and Felipe Juarez responded to the location and shined their patrol car's two spotlights on Owten. The officers identified themselves and yelled at Owten to stop. Owten responded by throwing a bottle into the street. He also continued walking away and ignored the officers' commands to put his hands on his head. Officer Beagley then grabbed Owten's upper arms, placed him on the ground, and ordered him to put his hands behind his back. Instead, Owten placed his hands underneath his body, near his waistband, causing Officer Beagley to punch him twice in the face. The officers attempted to keep Owten on the ground, but he was able to stand up and began fighting with Officer Juarez. After Officer Beagley hit Owten twice on the back of the leg with a baton, Owten punched Officer Beagley in the face and bit off a chunk of flesh from Officer Juarez's scalp.

As a hostile crowd of onlookers gathered, Officer Andrea Pflugh arrived on the scene and shot Owten with a taser, but it did not seem to affect him. After Officer Pflugh used the taser on Owten again, he swung at her and landed a glancing blow on her shoulder. Officer Pflugh shot Owten with the taser again, but again it seemed to have no effect on Owten. Officer Beagley then punched Owten, causing him to fall. The crowd formed a semicircle around the officers, momentarily diverting Beagley's attention from Owten. However, when Beagley saw Owten on top of Officer Juarez, he kicked Owten two times in the face, which caused Owten to lose consciousness and allowed the officers to handcuff him.

Garcia was taken to the hospital by ambulance where he received stitches for a cut over his eye. Officer Juarez was hospitalized for four days. The bite inflicted by Owten left Juarez with a depression in the back of his head.

At a police lineup conducted by Officer Samuel Aguirre, Garcia peered through a partition and told Aguirre that Owten was not the person who assaulted him. Aguirre turned towards Garcia and saw that his eyes were wide open, his body was shaking and his chin was quivering. Aguirre then looked at Owten and saw that Owten was leaning forward showing his teeth and that his eyes were wide open, his nose was flared, and his jaw muscles were protruding. After Owten was removed from the area, Garcia began crying and told Aguirre that Owten was in fact the man who had assaulted him. Garcia confirmed his identification in a subsequent recorded interview. He also explained that he did not initially identify Owten because he was afraid of retaliation.

At the trial in this matter, the defense presented evidence that prior to assaulting Garcia, Owten was gathered with family members at a nearby residence because Owten's father was dying of cancer. Owten was drinking heavily that night.

The Romero Motion

Owten's three prior strike convictions were based on his three 1992 convictions for forcible lewd and lascivious conduct with a child under the age of 14. The incident that led to those convictions occurred on June 3, 1992. On that date Owten's girlfriend left her ten-year-old daughter, A.F., with Owten while she went to play Bingo. A.F.'s eight-year-old cousin, B., went to play with her that day. While A.F and B. were watching television, B. became sleepy and Owten carried her into a bedroom and placed her on a bed. When B. awoke, Owten was lying on top of her. He then began kissing her on the mouth and on her "private parts." When A.F. walked in to the room, Owten stopped the assault but he continued it once she left. B. then attempted unsuccessfully to get Owten off of her by telling him that her throat hurt. When she attempted to scream, Owten placed his hand over her mouth. The assault ended when A.F. entered the room again and screamed.

Owten's conviction was affirmed on appeal by this court on November 9, 1993, in an unpublished decision. Defense counsel attached a copy of that decision as an exhibit to his moving papers.

At Owten's sentencing hearing on February 4, 2011, in denying Owten's Romero motion, the court stated:

"I spent considerable amount of time looking at the underlying case back in '02 -- or I should say looking back at the case in 1992, the case involving the forcible assault, lewd and lascivious conduct on the minor, and also the appellate decision, the trial file itself, considered the gentlemen's background, and also his prospects for a meaningful crime-free life, and what struck me is that when you look at the totality of the record and that's what we have to judge this [Romero] issue on there is an escalating timeline of violence.
"In '92 he forcibly and unmercifully preys on one of our most vulnerable, an eight-year-old girl [B.], multiple acts.
"And now we see a situation where with force and violence he moves from a child, targeting officers, armed officers, and he aggressively attacks three of them, maiming one, assaulting two others, and it involves a situation where when you look at all of these factors and the violation of paroles, his record, this is a situation that I think the three-strikes law was designed for and I cannot make a finding that this gentleman -- and I certainly sympathize with the plight, the loss of his father and everything. I can't come close to finding that he is outside of the scope of the three-strikes law when I look at all of these factors and I respectfully deny the [Romero] motion to strike any of the priors -- or any of the strikes...."

DISCUSSION

We review a ruling on a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) The appellant bears the burden of establishing that the trial court's decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) "It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant's] prior convictions." (Ibid.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony))

Defense counsel filed a written motion pursuant to Romero and at Oweten's sentencing hearing argued that the court should strike two of his prior strike convictions because: 1) the serious nature of his three forcible child molestation convictions was mitigated by their remoteness; 2) they arose out of a "single instance of aberrant" conduct; 3) his current offenses were mitigated by his intoxication when he committed them and by the extreme mental duress he was suffering from as a result of his father's impending death; and 4) even if the court struck two of his prior serious felony convictions it could still impose a substantial determinate sentence that would adequately punish him. The trial court was well aware of its discretion to strike two of Owten's prior serious felony convictions pursuant to Romero and declined to do so noting the serious and violent nature of his criminal history and his current offenses. Its decision is supported by the circumstances underlying his current offenses and his dismal prior record.

Owten's probation report indicates that in addition to his three 1992 child molestation convictions and his 2002 misdemeanor conviction for failing to register as a sex offender (§ 290, subd. (g)(7)), as a juvenile Owten was adjudicated twice for petty theft (§ 488). As an adult he was convicted in 1981 of misdemeanor burglary, in 1986 of battery (§ 243) and resisting arrest (§ 148), in 1987 of transportation or sale of a controlled substance (Health & Saf. Code, § 11352), and in 1990 of misdemeanor domestic violence (§ 273.5). Owten served a three-year prison term on his drug conviction and a nine-year prison term on his child molestation convictions. He also violated his parole twice in the drug case and six times in his child molestation case.
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Moreover, although Owten's three child molestation offenses occurred 18 years earlier and resulted from one incident, during that incident Owten committed several distinct acts of forcible molestation and he continued assaulting the victim even after he was interrupted by the victim's cousin and had time to reflect on his conduct. Further, the significance of the remoteness of these convictions is also diminished by Owten's repeated re-incarcerations in that matter through May 2001 due to numerous parole violations and his conviction in 2002 for failing to register as a sex offender.

Owten is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. We decline his invitation to do so. " Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.'" (Carmony, supra, 33 Cal.4th at p. 378, quoting Myers, supra, 69 Cal.App.4th at p. 310.)

The record in this case affirmatively shows that the court understood its discretionary authority and it weighed all of the competing facts to reach a reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike two of the prior serious felony convictions. In view of these facts and circumstances, Owten has failed to show abuse of discretion. (See Carmony, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Owten

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Feb 17, 2012
F061880 (Cal. Ct. App. Feb. 17, 2012)
Case details for

People v. Owten

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIAM OWTEN, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 17, 2012

Citations

F061880 (Cal. Ct. App. Feb. 17, 2012)