Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC631878
Mihara, Acting P.J.
Defendant Kenneth Lee Schulz appeals from a judgment of conviction entered after a guilty plea.
On June 2, 2006, defendant’s roommate reported to the San Jose Police Department that he believed defendant might be committing unlawful acts with a 10-year-old girl. The roommate had recently learned the defendant was a registered sex offender, and observed that the girl, Jane Doe, slept at the house about once a week. The next day, after the roommate confirmed that Jane was inside the house, the police conducted a probation search of the residence.
Defendant (50 years old) told police he was the girl’s godfather and Jane’s mother confirmed that defendant was a family friend. Defendant explained that Jane liked to visit his house because he spoiled her. He said he sometimes fell asleep in the bed with Jane, but would then move to the couch. Defendant denied having sexual intercourse with Jane, but admitted inappropriate touching. He said that their sexual contact began when defendant placed his hand over her vaginal area and rubbed her through her clothing. He later touched her vagina with his finger, skin to skin, and admitted that his finger penetrated her “‘a little bit.’” Defendant kissed Jane on the mouth with their tongues touching a couple of times, and orally copulated the girl four or five times. He also admitted that “half of the head of his penis had penetrated Jane” and that he took baths with her. He denied that she orally copulated him, but said that she was “‘blossoming sexually, you know, growing.’”
Jane told police she had been staying at defendant’s house since she was nine years old, and that the touching began when she was in the fourth grade. She said defendant would rub his penis against her vagina, but not insert his penis. On some occasions she tried to push his hands away, but he continued to take her clothes off.
Defendant was charged by felony complaint with a lewd and lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a); count 1) and a lewd and lascivious act on a child by force, violence, duress, menace, or fear (Pen. Code, § 288, subd. (b)(1); count 2). Defendant pleaded guilty to count 1, admitted a prior conviction for the same offense within the meaning of sections 1203.066, subdivision (b)(5) and 667.61, subdivisions (a) and (d), and admitted five prior offenses under the “Three Strikes” law (§ 667, subds. (b)-(i); § 1170.12).
All further statutory references are to the Penal Code unless otherwise noted.
Prior to sentencing, defendant requested, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), that the court strike his strike priors. The strikes consist of five 1990 convictions for lewd and lascivious acts on a child (defendant’s niece) under the age of 14 (§ 288, subds. (a) & (b)). Defendant’s criminal history also includes a 2002 felony conviction for failure to register under the sex offender registration laws (§ 290, subd. (g)(2)), one additional felony, and several misdemeanors. Defendant was on probation for the 2002 conviction at the time of the current offense.
The trial court denied defendant’s Romero motion. The court found that the prior crimes were “very serious in nature” and further found, based on a review of defendant’s character and prospects, no prospect for success or reform. The trial court sentenced defendant to a prison term of 75 years to life, and dismissed count 2.
Appointed appellate counsel has filed an opening brief which states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf and submitted a letter brief. Defendant contends that his sentence is excessive because his past and current crimes were not violent and he “never physical[l]y hurt anyone.” He also contends that because his 2002 conviction for failure to register was not violent, it should not count as a strike.
There is no merit to defendant’s contentions. Under the Three Strikes law, a strike prior is a conviction for a serious or violent felony, as defined in section 1192.7, subdivision (c) and section 667.5, subdivision (c), respectively. (§ 667, subd. (d)(1).) Defendant’s convictions for violation of section 288, subdivisions (a) and (b) are serious and violent felonies within the meaning of the Three Strikes law. (§ 1192.7, subd. (c)(6)); § 667.5, subd. (c)(6).) The trial court analyzed and relied on proper factors in denying defendant’s Romero motion (see, e.g., People v. Williams (1998) 17 Cal.4th 148, 161 [the trial court must consider the nature of the present and prior felonies and the defendant’s background, character, and prospects in determining whether the defendant is within the spirit of the Three Strikes law]), and sentenced defendant accordingly (see § 667.61, subds. (a), (c)(8), (d); § 667, subds. (b)-(i)). The 2002 conviction was not used as a strike conviction in this case.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
The judgment is affirmed.
WE CONCUR: McAdams, J., Duffy, J.