Opinion
C085007
03-19-2018
THE PEOPLE, Plaintiff and Respondent, v. GARRY WAYNE TANKERSLEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16F3821)
Defendant Garry Wayne Tankersley pleaded guilty to committing a lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) The trial court found true the allegations he had two prior rape convictions that qualified as strikes under the three strikes law (§ 1170.12), and had committed a prior and present sex offense within the meaning of section 667.6, subdivision (a). After denying his Romero motion to strike one of his strike priors, the trial court sentenced him to an aggregate term of 25 years to life.
Undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, defendant contends the trial court erred in denying his Romero motion. He further contends the trial court's order requiring him to submit to acquired immune deficiency syndrome (AIDS) testing must be reversed. We will reverse the AIDS testing order and remand this matter for the limited purpose of permitting a further hearing on the issue of AIDS testing at the election of the prosecution. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the preliminary hearing transcript. At the change of plea hearing, the parties stipulated that the factual basis for defendant's plea could be found in that transcript.
The victim was born in May 2004. Defendant was a friend of the victim's family. He lived at the family's residence and was often referred to as "the perverted Uncle Garry" by the other members of the family.
Late in the evening on May 31 or June 1, 2016, defendant touched the victim two separate times. The first incident occurred in the victim's bedroom. While the victim was sleeping, she felt defendant rubbing on her vaginal area over her clothes. When she started kicking her legs around, defendant stopped and left the room. Thereafter, the victim got out of bed, retrieved a fork for protection, and went to a storage shed in the backyard to watch a movie with her brother.
The second incident occurred after defendant told the victim and her brother to turn the movie off and go to bed. As the victim was sleeping on the couch in the living room, defendant removed her blanket and, again, began rubbing on her vaginal area over her clothes. He also told her that she had a nice body. At that point, the victim yelled at defendant to stop, which he did.
When defendant was questioned by an investigator from the Redding Police Department, he denied telling the victim she had a nice body but admitted to touching the victim's vaginal area over her clothes. He also admitted that he knew what he did was wrong because the victim was 12 years old.
Defendant was charged by felony information with two counts of committing a lewd or lascivious act upon a child under the age of 14 years. (§ 288, subd. (a).) It was further alleged that defendant had two prior rape convictions that qualified as strikes within the meaning of the three strikes law (§ 1170.12), and had committed a prior and present sex offense within the meaning of section 667.6, subdivision (a).
Pursuant to a written plea agreement, defendant pleaded guilty to count 1 in exchange for the dismissal of count 2 with a Harvey waiver. Thereafter, the trial court found the enhancement allegations true.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
After denying his Romero motion, the trial court sentenced defendant to an aggregate term of 25 years to life. The court also imposed various fines and fees and ordered defendant to, among other things, submit to AIDS testing pursuant to section 1202.1.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Romero Motion
Defendant contends the trial court erred in denying his Romero motion. We disagree.
A. Additional Background
Prior to sentencing, defendant filed a Romero motion requesting the trial court strike one or both of his strike priors pursuant to section 1385. He argued that such relief was appropriate because his 1992 convictions for rape were remote in time, and that he had engaged in minimal criminal conduct since committing those offenses. Defendant asserted that punishment under the three strikes law would be disproportionate to his criminal history and the severity of the current offenses. He noted that, with the exception of his rape convictions, his other prior convictions-- larceny, "bail jumping," and possession of drug paraphernalia--involved low-level misdemeanor conduct. He also noted that he only touched the current victim over her clothes for very brief periods of time. Defendant further argued that relief under section 1385 was appropriate because he displayed remorse for his conduct, and has demonstrated an ability to conduct himself as a law-abiding citizen for long periods of time, as he successfully completed his parole/probation following his rape convictions and only sustained one violation of probation in 2006 after he was placed on probation in 2000 for possession of drug paraphernalia. According to defendant, "a 25 years to life sentence would not serve the penological purpose of protecting society from a career criminal when the current offense bears little indication that [he] has recidivist tendencies posing a risk of harm to the public. Instead, such a sentence would be grossly disproportionate as it relates to the gravity of a nonviolent offense when compared with any other serious or violent crime."
The prosecutor filed a written opposition to defendant's Romero motion. The prosecutor argued that defendant's criminal record shows he had not lived a crime-free life since his strike priors, and that he was a repeat sexual offender with a sexual interest in children. The prosecutor noted that defendant's prior rape convictions involved a child under the age of 14 who was forced to perform oral sex and have sexual intercourse with defendant. According to the prosecutor, defendant fell squarely within the spirit of the three strikes law because he was a habitual sexual offender with children under the age of 14 years who had been unable to conform his behaviors to the norms of society.
At the outset of the hearing on the Romero motion, defense counsel elicited testimony from a witness regarding defendant's character. After victim impact statements from the victim and the victim's father were read, defense counsel reiterated the arguments he made in his motion but clarified that he was only requesting the trial court strike one of his strike priors. In making this request, he asserted that a sentence of 25 years to life was "a bit excessive" under the circumstances. The prosecutor disagreed, arguing that there was no basis to strike either of defendant's prior rape convictions based on his criminal history. The prosecutor noted that defendant's record shows that he is a habitual sex offender that has a history of violating young vulnerable victims who trusted him.
In denying defendant's motion, the trial court reasoned as follows: "Obviously, as far as the Three Strikes Law, it's entrusted to the Court to exercise its discretion in light of what it is that the People intended and the legislators intended when they passed the initiatives and laws as it related to three strikes. And the general or primary question is whether or not a particular Defendant can be deemed outside the spirit of the Three Strikes Law in whole or in part.
"Romero speaks to three . . . broad factors, many . . . things can fall within them. And probably the most mitigating piece of it falls within that category which speaks to the particular background, character, and prospects.
"It can be said that over the last number of years [defendant] has been self-sufficient and has contributed. He obviously has support and backers, and people who have written letters on his behalf, which in his communications and his contacts with them indicate to those people that he is a person that is kind, and they have had a somewhat good relationship with him. It also weighs somewhat in mitigation that the priors[,] which are the strikes and are the . . . basis of the Romero Motion, occurred a number of years ago.
"Turning to some of the other things, however, that time-frame between 1992 and today, that mitigation is tainted. And the reason it is tainted is because of the nature of the offenses.
"It's been pointed out more than once that the previous victim, the previous victimization was the rape of a child. And while this didn't go necessarily to the full extent physically, it certainly did mentally.
"Victim impact here is significant. I have heard that. And it would require . . . essentially the same type of criminal thinking that would have led to both. So it can be said between the time of the earlier conviction and the time of these crimes, because there was a Harvey Waiver as to Count 2, that the thinking hasn't stopped and that this type of an offense has a significant impact particularly because it is a physical offense against a young person. And we have seen that here today.
"The prior seriousness of the violent or the serious felony to begin with was . . . primarily because of the significance of the charge, the rape of a child is a significant and particularly heinous type of event. Knowing what type of harm someone would cause in the future would attempt to try and mitigate the urges to do something like that in the future.
"Here, I think it is noteworthy that this is not a crime of opportunity. At least as far as I can see, it is one that had some more sophistication or planning because other adults in the house were gone and had planned to be gone, and that was known to [defendant]. He approached the victim at a time when that victim was particularly vulnerable. That was, she was asleep and not able to read intent earlier, and was brought to her attention in the middle of the crime being committed.
"Yeah, he got away from her when she yelled, but unfortunately went back the same night, indicating that he was much more persistent in gratifying himself or whatever the particular motive was that night, that it certainly was a sexual one. Giving this Court the impression it was a more sophisticated plan and a more dangerous individual than some of the support letters would tend to indicate. Again, targeting a young child.
"I agree with the probation department that this is a circumstance in which a position of trust was violated. Not just because of his relationship with the victim at the time of the offense, but with the entire family. And that certainly works in aggravation with regard to that.
"And he's not been particularly forthright as far as his motivation for committing the offense in most statements, stating it was somewhat of an accident. And the descriptions that have been given by the victim . . . indicate that it [was] not.
"So in balance, and taking all that into consideration, because of the nature of the prior offense, the way in which this particular offense was carried out, the violation of a position of trust, the impact of this particular offense, and the fact that in the number of years between this offense and the prior offense he is offending in the same way to the most vulnerable type of persons one can victimize in the community, and given the fact that it has been a significant period of time where he has remained relatively crime free, at least convictions of a serious or violent nature, that I cannot say in full faith that he falls outside the spirit of the Three Strikes Law. And for that reason, I will decline to strike any of the strikes."
B. Analysis
Section 1385 gives the trial court authority, on its own motion or upon application of the prosecution "and in furtherance of justice," to order an action dismissed. (§ 1385, subd. (a).) In Romero, our Supreme Court held that a trial court may utilize section 1385 to strike or dismiss a prior strike for purposes of sentencing under the three strikes law. (Romero, supra, 13 Cal.4th at p. 504.) A trial court's ruling denying a request to dismiss a prior strike 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. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve 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." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
In Carmony, our Supreme Court 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." ' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) The circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be extraordinary. (Id. at p. 378.) Reversal is justified where the trial court was unaware of its discretion to dismiss a prior strike, or considered impermissible factors in declining to dismiss. (Ibid.) But where the trial court, aware of its discretion, " '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' [citation]." (Ibid.)
In deciding whether to dismiss a prior strike allegation, a trial 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, 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 (1998) 17 Cal.4th 148, 161.)
Here, we find no abuse of discretion. In ruling on defendant's motion, the trial court was aware of its discretion, considered the relevant factors, and reached its decision in conformity with the spirit of the three strikes law. Although reasonable minds may disagree over whether the Romero motion was meritorious, the decision was neither irrational nor arbitrary and was not an abuse of discretion.
To the extent that defendant's briefing argues the Static 99 score was incorrect, that objection was not raised in the trial court (in fact, at the sentencing hearing defense counsel appeared to agree to the probation officer's conclusion regarding the Static 99) and is therefore forfeited on appeal. (See, inter alia, People v. Saunders (1993) 5 Cal.4th 580, 589-590.) The Attorney General does not answer this argument in his briefing. In any event, the trial court did not appear to consider the Static 99 score to any significant degree when ruling, as we have described.
II
AIDS Testing
Defendant contends the trial court erred in ordering him to submit to AIDS testing. He argues that the court failed to make a probable cause finding to support the order and the record does not contain sufficient evidence to support a finding that there was probable cause to believe that bodily fluids capable of transmitting the human immunodeficiency virus (HIV) came into contact with the victim. The People appear to concede the point, and we agree with defendant.
Although the argument heading in the Attorney General's brief indicates that "The Trial Court Properly Ordered Appellant To Undergo D.N.A. Testing," the body of the argument appears to concede the trial court's error in ordering AIDS testing. We suggest that more care be taken in briefing.
Section 1202.1 requires the trial court to order designated persons "to submit to a blood or oral mucosal transudate saliva test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS) within 180 days of the date of conviction." (§ 1202.1, subd. (a).) Among those designated are persons convicted of lewd or lascivious conduct on a child in violation of section 288, "if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." (§ 1202.1, subd. (e)(6)(A).) The statute directs a court ordering such testing to "note its finding on the court docket and minute order if one is prepared." (Id., subd. (e)(6)(B).)
At sentencing, defense counsel did not object to the order for AIDS testing. However, our Supreme Court has held that forfeiture principles do not apply to a claim of insufficient evidence to support a finding of probable cause to order AIDS testing under section 1202.1. (People v. Butler (2003) 31 Cal.4th 1119, 1123 (Butler).) Thus, defendant's claim is not forfeited.
Although the trial court did not specifically articulate its reasons for the AIDS testing order, we will presume an implied finding of probable cause by the court. (Butler, supra, 31 Cal.4th at p. 1127.) "Probable cause is an objective legal standard--in this case, whether the facts known would lead a person of ordinary care and prudence to entertain an honest and strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." (Ibid.)
Here, there is nothing in the record to suggest a transfer of body fluids. However, we decline to merely strike the AIDS testing order as the People suggest is an option. Controlling authority--Butler--requires this matter to be remanded for a probable cause hearing. (See Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.) As our Supreme Court stated in Butler: "Given the significant public policy considerations at issue, we conclude it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause." (Butler, supra, 31 Cal.4th at p. 1129.) The appropriate remedy thus is "to remand the matter for further proceedings at the election of the prosecution." (Ibid.)
Both parties correctly point out that the trial court's minute order following sentencing and the abstract of judgment do not reflect that AIDS testing was ordered. However, because we are reversing and remanding this matter for further proceedings with respect to the imposition of AIDS testing, we will not order the trial court to correct the minute order or abstract of judgment. On remand, the trial court shall comply with section 1202.1, subdivision (e)(6)(B) and, in the event AIDS testing is ordered, prepare a corrected abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. --------
DISPOSITION
The trial court's AIDS testing order is reversed and the matter is remanded to the trial court with directions to permit the prosecution the opportunity to offer evidence to support an AIDS testing order. In all other respects, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Renner, J.