Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC627609
McAdams, J.
Defendant pleaded no contest to three felonies involving S., his granddaughter: a lewd and lascivious act upon a child under 14 years of age; indecent exposure, with a prior conviction; and annoying or molesting a child, having been convicted of a specified prior conviction. (Pen. Code, §§ 288, subd. (a), 314.1, 647.6, subd. (c)(2).) Defendant also admitted that he had suffered three prior convictions for violations of section 288, subdivision (a). (§§ 667, subds. (b)-(i), 1170.12.) The prior convictions involved his daughter, S.’s mother. The court sentenced defendant to an indeterminate term of 50 years to life, consecutive to five years. Defendant’s sole contention on appeal is that the trial court abused its discretion in denying his Romero motion to strike one or more of his prior convictions under the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) We affirm.
Unless otherwise indicated, all statutory references are to the Penal Code.
The facts summarized here are drawn from the probation report and the preliminary hearing transcript.
Current Offenses
Twelve-year-old, S. told police that when she was “little” defendant, her grandfather, showed her his penis. He also kissed her. Specifically, she told them about an occasion when she, her younger brother, and defendant were playing a game of “Truth or Dare.” Her brother dared her to kiss defendant, and when she did so, their tongues “got together.” She also said that on another occasion, when she was sitting on defendant’s lap, defendant showed her his penis, and this upset her grandmother.
Police interviewed S.’s grandmother, who is defendant’s ex-wife. She told police that defendant had been convicted of molesting their daughter (S.’s mother) when she was a child. The grandmother disapproved of S.’s mother allowing defendant to spend the night at her home when the children were present, and she herself sometimes limited defendant’s contact with the children. She recalled an occasion approximately three years earlier when she saw S. “sitting next to the defendant, who rubbed his hand up and down [S.’s] leg and on her inner thigh close to her crotch. He then rubbed her breasts, over her clothes. … She had ‘caught’ the defendant attempting to touch [S.] inappropriately at least half a dozen times.”
S. testified at the preliminary hearing. She was 13 years old at that time. She did not recall defendant touching her in the crotch area while in the swimming pool with him. She did recall that on another occasion he pulled his swimsuit down and showed her his penis, then her grandma came outside. Other times, her brother would dare her to kiss grandpa. When she kissed him, their tongues touched. She did not recall defendant touching her on her chest or any other private place on her body.
Defendant’s Admissions
The police also interviewed defendant. He said that for the past couple of years, he had been staying at S.’s house on weekends. He admitted that “one day while [S.] sat on his lap, she put her hand on his penis, over his clothing and asked if that were his ‘pee pee.’ He responded affirmatively and brushed her hand away. She then asked if she could see his penis and he told her she could not. He then went inside and lay down on the floor to take a nap and she followed him, asking again if she could see his penis, and again he declined to allow her to do so. It was at this point [S.’s] grandmother entered the room and ‘chased’ [S.] out.”
Another time, he admitted, he was playing with S. in a swimming pool by pushing her feet with the palms of his hands. “As he pushed, [S.’s] knees buckled, her legs came apart and his hand accidentally made contact with her crotch area.” Yet another time, he was sitting around by the pool when S. approached him and “began lifting up the hem of his swimming trunks, while stating, ‘Let me see, let me see.’ He then maneuvered his trunks so that she could see the liner inside and what he described as a ‘bulge.’ He told [S.] the suit had a liner so people ‘don’t see this,’ at which point he pulled the liner away, exposing his penis.” He told the officer than his penis was not erect and he was not sexually aroused, but he knew he should not have done it.
He also admitted kissing S. on the lips during a game of “Truth or Dare” but he described it as a “peck” and denied that their tongues touched.
Defendant told the probation officer, in the presence of his attorney, that for the previous five years he had been living in an emergency shelter and frequently visiting his daughter, who shared an apartment with her mother (defendant’s ex-wife), two children, and her ex-husband. He admitted to two instances of playing “Truth or Dare” with his granddaughter, but maintained that the kisses both times involved closed mouths. He also admitted giving his granddaughter a “quick peek” at his penis when she expressed curiosity about it, at which point his ex-wife “appeared on the scene” and he lost the opportunity to give S. a “quick rebuke” about her curiosity.
Defendant admitted a 25-year history of marijuana use and limited experimentation with cocaine and methamphetamine, but he maintained that he ended all drug use in 1995. In addition, he said he “does not consider himself to be a pedophile and feels his behaviors in the present offenses were misunderstood and that he has been ‘grossly overcharged.’ Similarly, he does not feel his actions deserve his spending the rest of his life in prison” but he did not blame anyone but himself for his predicament.
Prior Offenses
In 1986, defendant’s then 14-year-old daughter reported that “defendant had been coming into her room at night, taking her to his bedroom, and having her undress, as he undressed. He would then lie with her on the bed and fondle her. The behavior involved his ‘tongue kissing’ her and having her rub his penis. They would then ‘practice doing it,’ which she indicated meant he would put his penis between her legs, while lying on her and would rub it up and down” until he ejaculated on her stomach. He also kissed her breasts and vagina but did not have intercourse with her. This occurred once or twice a month from the time she was six years old. Defendant told his daughter that “he knew it was against the law, but he liked doing it, and he wanted to teach her what she needed to know when she wanted to have babies.’ ” Defendant was charged with and convicted of three counts of violating section 288, subdivision (a) and was sentenced to state prison for three years.
In 1995, defendant was convicted of failing to register as a sex offender (§ 290, subd. (g)(2)) and was sentenced to state prison for 32 months. The balance of defendant’s criminal record consists of nine misdemeanor convictions, seven of them for driving on a suspended license, one for reckless driving and one for exhibition of speed.
The Romero Motion
Defendant filed a Romero motion requesting that the court exercise its discretion to dismiss all or some of his strike prior convictions in the interests of justice. Citing People v. Garcia (1999) 20 Cal.4th 490, defendant argued that the Three Strike law’s purpose of ensuring longer sentences did not compel the trial court to impose the longest possible sentence. Furthermore, the “overarching consideration” for a trial court in deciding whether to strike a prior conviction is the defendant’s sentence “because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” The motion set forth the court’s four sentencing options: (1) striking all of the prior convictions and imposing a jail sentence as a condition of probation; (2) striking all of the prior convictions and imposing a prison sentence of four years four months to 11 years; (3) striking one of the prior convictions and imposing a sentence of 12 years four months to 27 years; and (4) not striking any of the prior convictions, and imposing a prison sentence of 50 years to life plus five years.
Defendant argued that his criminal history should not be singularly dispositive. Among other things, he pointed out that his prior convictions were 17 to 20 years old and therefore remote; his peripatetic childhood made it difficult to sustain friendships, and his father was a “violent disciplinarian” who spanked his sons with wooden planks for minor misdeeds; he served honorably overseas in the Air Force, was honorably discharged and continued as a reservist until 1970; he was gainfully employed for six years by a welding company and was considered an outstanding worker, but had fallen on hard times and had been homeless for the last eight years. In addition, defendant pointed to his early acknowledgment of guilt and his attempts to spare S. the ordeal of testifying. He also minimized his conduct, claiming that S. “was not touched therefore the impact on [her] was negligible.” On the strength of these “individualized considerations,” defendant argued, he should be treated as if he fell “outside the ‘spirit’ of the Three Strikes law … in whole or in part.”
The People filed a responsive memorandum setting forth the facts underlying the current offenses and the prior offenses, and arguing that it would be an abuse of discretion to strike any of the prior convictions because of the aggravated aspects of defendant’s past and present offenses (i.e., vulnerability of the victims, abuse of a position of trust, etc.), and because “[s]triking a strike and sentencing [d]efendant to a determinate sentence will only provide [d]efendant the opportunity for an early release and the ability to re-offend.”
At the hearing on the Romero motion, the court indicated that it had received and read in their entirety the “moving papers from both the prosecution and the defense” and the probation report, as well as re-read People v. Williams (1998) 17 Cal.4th 148, which it considered “the controlling case in terms of the standard as to viewing Romero.”
The court entertained argument by both sides. Defense counsel indicated that defendant was “in no … way minimizing what has occurred now nor what occurred with the previous victim,” although he characterized the current offenses as “misdemeanor conduct.” He pointed out that defendant was 62 years old, and that imposition of a high determinate term would punish defendant severely while still giving him “some hope, perhaps, of getting out at some point in his eighties.” The People argued that the seriousness of defendant’s past behavior, his failure to learn the lesson he should have learned and his apparent inability to control his conduct all indicated that “he would continue to be a danger to society at the age of 80.”
The court ruled: “I have read and considered the papers, listened to counsel’s argument. I certainly understand the logic of the defense argument. Part of the flaw in it . . . is the court is not constrained by an amorphous concept of justice. It’s within the context of a ‘Three Strikes’ law, which I need to find exceptional circumstances to believe Mr. Perkins falls outside of that law, and I don’t believe that has been shown in this case. The court is going to not [sic] exercise its discretion, is not going to strike any of Mr. Perkins’ prior convictions. I believe Mr. Perkins presents a danger to children in our community and would continue to present a danger to the children in our community if released. [¶] I think that the ‘Three Strikes’ law in part is designed to prevent people from being released that are dangerous to our community. So I’m going to deny the motion. I certainly in no way hold it against Mr. Perkins that he exercised his right to a preliminary examination. In fact, I think that it was to his benefit that he did resolve the case without going to trial.”
DISCUSSION
On appeal, defendant argues that the trial court should have granted the Romero motion because defendant is now 64 years old; his current convictions are for misdemeanor conduct; the Three Strikes sentence is the functional equivalent of a “virtual LWOP term”; and by striking some or all of the prior convictions under Garcia, the court could have achieved a lengthy sentence, “yet would have still held out some possibility of release before death.” He contends that “the court’s refusal to grant this very limited relief, which would have resulted in a substantial period of confinement, was entirely unjustifiable, falling ‘outside the bounds of reasons under the applicable law and the relevant facts.’ ” Before explaining why we disagree, we set forth the governing legal principles.
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citations.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ Citations. Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ Citations. Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.)
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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, 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.) But as the Carmony court further explained: “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court ‘conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.’ ” (Carmony, supra, 33 Cal.4th at p. 377.) “Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Id. at p. 378.) We now apply these principles to the case at hand.
Defendant’s contention on appeal is essentially the same as the one he made below: the trial court could or should have stricken all or some of his prior convictions because defendant was 62 at the time of sentencing, the current conduct was minor by comparison with other sex offenses, he acknowledged guilt at an early stage of the proceedings, a Three Strikes sentence in this case is effectively a sentence of life without possibility of parole, and if the court had stricken even one prior conviction, defendant could still have received a very lengthy sentence. These arguments do not demonstrate that the court acted irrationally or arbitrarily. Especially in light of defendant’s admissions to the police and the probation department, the court was not required to accept defense counsel’s characterization of defendant’s current offenses as “misdemeanor conduct.”
Defendant’s prior convictions placed him squarely within the parameters of the Three Strikes law. The burden was on him to demonstrate that he fell outside those parameters. Defendant’s age, history and prospects were placed before the court in the parties’ written memoranda, the probation report, and counsels’ oral remarks at the hearing. The court stated that it had considered everything before it. “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The record here provides no affirmative basis to rebut that presumption.
The court gave consideration to the factors argued by defendant. It weighed these factors against the number and gravity of defendant’s prior and current offenses. After balancing the positives in defendant’s life against defendant’s prior convictions for incestuous sexual offenses with his natural daughter, and the seriousness of his current offenses with his natural granddaughter, the court came to the conclusion that defendant did not fall outside the ambit of the Three Strikes law, in whole or in part. That conclusion was not irrational on these facts. “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.” (People v. Myers, supra, 69 Cal.App.4th at p. 310.) Given the deferential standard of review, we must conclude that the trial court’s denial of appellant’s motion to dismiss his prior strike convictions was not an abuse of discretion.
CONCLUSION
The trial court did not abuse its discretion in denying defendant’s Romero motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Mihara, J.