Opinion
F061329 Super. Ct. No. F09901567
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER NICOLAS TATARAKIS, Defendant and Appellant.
Richard Power, 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, Kelly E. LeBel and Catherine Tennant Nieto, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.
Richard Power, 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, Kelly E. LeBel and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Christopher Nicolas Tatarakis was convicted of crimes arising from his sexual assault against a woman with whom he was using methamphetamine. On appeal, he contends (1) the trial court erred by admitting evidence of his prior sexual offense pursuant to Evidence Code section 1108, (2) the trial court abused its discretion by refusing to dismiss a prior strike conviction, and (3) the trial court abused its discretion by imposing the upper term on a weapon enhancement. We will affirm.
PROCEDURAL SUMMARY
On September 2, 2010, the Fresno County District Attorney charged defendant with forcible oral copulation, with the use of a knife (Pen. Code, §§ 288a, subd. (c)(2), 12022.3, subd. (a); count 1); assault with intent to commit rape, with the use of a knife (§§ 220, 12022.3, subd. (a); count 2); sexual battery, with the use of a knife (§§ 243.4, subd. (d), 12022.3, subd. (a); count 3); and false imprisonment (§ 236; count 4). The information further alleged that defendant suffered a prior serious felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), served a prior prison term (§ 667.5, subd. (b)), and fell within the provisions of two habitual sexual offender statutes (§§ 667.61, subd. (a), 667.71).
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty on count 1 of the lesser included offense of attempted forcible oral copulation and found true the knife use allegation. The jury also found defendant guilty on counts 3 and 4, and found true the knife use allegation on count 3. The jury deadlocked on count 2 and the trial court granted a mistrial as to that count. Following the prosecutor's motion, the court dismissed count 2. Defendant admitted the prior conviction and the prison term allegations.
The trial court sentenced defendant to a total of 19 years in prison, as follows: eight years on count 1, plus ten years for the knife use enhancement; eight years on count 3, stayed pursuant to section 654; six concurrent years on count 4; and one year for the prior prison term enhancement.
FACTS
Monique, who was 30 years old at the time of trial, had a history of drug use and she had been in and out of recovery. She was attending meetings and had been sober for about six months, but she was having trouble coping with her husband's infidelity and their pending divorce. In addition, her husband had been arrested for committing domestic violence against her. In the early morning hours of March 10, 2009, sometime around midnight, a friend came over and Monique had a few beers. She did not get drunk, but the alcohol made her want methamphetamine, as it usually did. At about 2:30 a.m., after her friend left, Monique called a chat line, where she knew drugs could always be found. She spoke to a few people that she was not interested in, but when she spoke to defendant, she thought his voice was calm and inviting. He introduced himself as Chris and he seemed mature. Monique told defendant she wanted to party, which meant use drugs. He asked what she was interested in, and she told him methamphetamine. She informed him she did not want a sexual encounter. She said, "Dude, I'm telling you straight up, I'm not going to have sex with you. I hope you are not looking for that[.]" Defendant "agreed, totally agreed," and said he respected that. Monique told him she did not know if he was "some psycho person," and he told her he was not. To reassure her, he gave her his last name and his license plate number. She told him, "Don't even try to think you are going to try to kiss me." He acted "totally cool," and Monique believed they had come to a mutual agreement that she was not offering sex and he was not looking for it. They would just hang out and smoke methamphetamine. At first, he told her he was 29 years old, but he later revealed he was 37 years old. Monique did not care how old he was because they were not going to be sexually involved. After their 15- or 20-minute telephone conversation, she felt comfortable and agreed he could come pick her up. She gave him the address of her apartment complex and told him she would be outside. He told her he would arrive in a black Jeep Cherokee.
Defendant was 51 years old at the time of trial.
At about 4:00 a.m., defendant arrived in the Jeep. Monique realized he was much older than he had told her. She got in and they stopped at a gas station near the 99 freeway and Jensen Avenue for cigarettes and beverages. Then they drove to defendant's residence, which was a loft in an industrial area. When they got upstairs to his loft, Monique sat in a chair and defendant sat on the bed. She asked him to "pack a bowl" so they could smoke some methamphetamine. After they smoked a little, he took her on a tour of the area. They went through some warehouses that contained various types of recreational vehicles. Defendant treated Monique respectfully. They returned to his loft and smoked more methamphetamine. When Monique was watching a movie on the television, defendant told her she was very pretty and she thanked him. When he told her a second time, she said, "[H]ey dude, you are going to make me feel very uncomfortable." He let it go and said nothing. Then he asked if they would ever see each other again. She answered, "[O]h dude, we can be friends." Defendant did not pursue it and Monique thought he understood.
Monique did not see defendant get up from the bed. Suddenly, he came up behind her chair, grabbed her hair, pulled her head back, and put a knife to her throat. She was completely surprised. The attack came out of nowhere. She said, "[P]lease, don't rape me." He asked her why she rejected him. She grabbed the knife with her right hand and cut all of her fingers. She kept telling him not to rape her. She tried to think of how she could get out of the situation. She had told no one she was meeting a stranger. Defendant told her to kiss him. She agreed and begged him not to rape her. She stood up and kissed him. He told her to kiss him like she loved him. She tried to comply, thinking she had better go along or he would kill her. She told him she would do whatever he wanted, as long as he did not rape her. While still holding the knife, he put his hand inside her shirt and stroked her breast over her bra. He continued holding her hair with his left hand. Defendant removed her shirt. He unbuttoned his pants and took out his penis. He told her she was going to like it and he pushed her head toward his penis. She put her bloody hand on the shaft of his penis and put her lips on the tip. Blood was everywhere. She told him, "I can't do this. I can't do this. My hand is too bloody. My hand is too bloody. I need some Band-Aids. I need Band-Aids." She promised she would finish once she got some Band-Aids. Still holding her by the hair, he walked her to the kitchen table and gave her some Band-Aids. She decided this was her only chance to kill defendant or to get away. She quickly grabbed the knife away from him and tried to swing it at him, but he moved away. He grabbed the knife back and they struggled on the bed. She headbutted him and dug her teeth into the top of his head, splitting her lip. Twice, she grabbed at the knife with both hands. As they struggled on the bed, she yelled, "Jesus, please help me, Lord. Please help me." She believed defendant was going to kill her. She yelled, "Jesus, God, please help me. Jesus, please. This man does not know better. This man does not know better."
Monique was not sure if she assisted him.
Defendant hit Monique in the eye and she fell from the bed to the floor. Defendant got on top of her. She continued to yell, "God, Jesus, please help me. Please help me." Defendant straddled her stomach, kneeling on the floor while holding the knife and pinning her arms down. She prayed he would not kill her and she asked him not to rape her. He alternated repeatedly between saying he was not going to do anything to her and saying he was going to rape her. Monique asked if she could pray with him. She told him she forgave him for what he had done to her. As she continued yelling to God to forgive defendant, his demeanor changed and his eyes softened. He no longer seemed so enraged. She asked him if she could leave, but he refused. He had been straddling her for at least 20 minutes. She promised she would not scream if he would at least get off of her, and he agreed. She still feared for her life because he continued to hold the knife, so she asked if he would throw the knife away from them. He threw it over the bed. The knife was a pocket knife with a metallic blue handle. She told him she wanted her shirt and he gave it to her. They both got up from the floor and she again promised she would not scream. She put on her shirt and asked defendant for a cigarette. As she continued talking to him, he became apologetic. She asked him why he had done this to her and what she had done to deserve it. He explained that she had rejected him. He had been bullied when he was younger and "it was a control thing." He said he was sorry. When she asked him if she could leave, he refused and said he wanted to talk to her. They talked until 5:30 a.m., when she told him she needed to go because neighbor children were relying on her. She helped them get ready for school in the mornings. But defendant refused to let her go. She told him again at 6:30 a.m. Then, at 7:00 a.m., she insisted that she needed to go. At that point, defendant gave her the keys to his car and told her to take it. She said, "[Y]ou know what, my hands are full of blood. I need a Band-Aid. I have no cash." He said, "[H]ere's money. Here's the cash. Here's the keys. I know you are going to call the cops." He made her promise not to yell as she left. She agreed and he walked her downstairs, unlocked the gate, and walked her to his Jeep. She got in and left.
Monique had her own pocket knife in her purse because she lived in an unsafe neighborhood. The knife was similar to, but smaller than, defendant's knife. But she had never been able to get to the knife. Her purse had been zipped closed and she could not reach the knife or remove it from her purse.
The night had been a surreal experience. Monique went straight to her neighbors' house. Their teen-aged son was home and she told him what happened. She told him she needed someone to go to the drugstore with her to get bandages. After they went to the drugstore, Monique went home and called the police.
An officer responded to Monique's apartment. Monique's pants and shirt had blood on them. Monique told the officer what happened, but omitted the part about the methamphetamine because she thought he would not believe her, and also the part about the oral copulation because she was too embarrassed. She immediately told the officer about the small pocket knife she carried in her purse. She took the knife out and showed it to the officer, but he did not take it.
Later that day, she spoke to Detective Bruzee. She told him about the oral copulation and the knife she carried, but she denied using drugs. When she explained the crime scene to the detective, she told him exactly what he would find—blood on the chair from her dripping hands, her black headband, the knife, and defendant's identification bracelet. She had seen the bracelet on his bed and had studied it to embed his name in her mind.
Meanwhile, shortly after 8:00 a.m. that morning, defendant asked his employer if he could borrow his pickup truck, as defendant had occasionally done during the course of his work. Defendant had been cleaning behind one of the buildings and said he needed to take a load to the dump. A trip to the dump typically took 30 minutes. The employer agreed, but did not give defendant permission to go anywhere else in his truck.
Defendant contacted Gracey that morning. He told her he was leaving that day for a job in Las Vegas. She saw a long, fresh scratch on his stomach.
At about 10:00 a.m., officers arrived at the employer's business, directed there by Monique. The employer told the officers about the missing truck, then let them into defendant's loft. The officers searched the loft and found the items Monique had described. Blood was found on the knife, the chair, a T-shirt, and tissues. The blood on the chair was later determined to be Monique's.
Not all of the items were tested.
The next day, March 11, 2009, defendant was expected at his brother's house, so the employer and his wife went to the brother's house to get the truck back. They stood outside, but when defendant drove up in the employer's truck, he kept going and drove by. When the employer got home, his truck was in his driveway.
The same day, defendant walked into the police station and was arrested. There was blood on the front and back of his pants. He had some cuts, scratches, and bruises, including a scratch on his stomach. The blood on the fly area of his pants was later determined to be Monique's.
The probation report, however, states that defendant was arrested on March 12, 2009.
When Monique spoke to the detective again, she said she had something to tell him and she wanted to "clear the air about it." She had decided that her credibility depended on her complete honesty, so she told him that both she and defendant were taking drugs on the night of the offenses. She said she had been too embarrassed and she thought the detective might not believe what she told him.
On March 13, 2009, the detective showed Monique a photographic lineup that included an old photograph of defendant, but Monique could not identify anyone. The detective later showed her another lineup with a recent photograph of defendant, taken since he was arrested, and she was able to identify him.
Prior Sexual Offense Evidence
In April 2002, Erica was using drugs and had been a prostitute for about one and one-half years. On April 14, 2002, at about 11:30 p.m., she was at a bus stop, waiting to meet a friend. She had waited 10 or 15 minutes and was quite sure the friend was not going to show up. As Erica waited, a white truck driven by defendant went by a couple of times. Defendant stopped and asked Erica if she needed a ride and if she partied, which meant doing drugs. She said she did. She got into the truck with him and they drove to isolated orchards outside the city. The truck had two bucket seats in front and two bucket seats in back. There was no console between the two front seats. When they stopped in the orchard, they snorted some methamphetamine together. Defendant told her he wanted to have sex. She said she needed money. Defendant told her he did not have any money, but he would pay her in drugs. She said no, she needed the money. Defendant got angry and said nothing. He clenched his jaw, reached across the truck, and pinned her arms against the seat. He unzipped his pants, grabbed her head, and forced her toward his penis. Erica was afraid and she complied, orally copulating him for two or three minutes. Afterward, defendant laid her back in her seat, which he reclined, and climbed on top of her. He unbuttoned her pants and pulled them down. He forced himself on her and they had intercourse for about five minutes. When defendant was done, he climbed back onto his seat. During the whole incident, he said nothing. At that point, a police vehicle pulled up behind them. The officers came to defendant's side and asked what was going on. When an officer took Erica out of the vehicle and questioned her separately, she told him what had happened and defendant was arrested. Defendant pled to the charge of sexual battery by restraint (§ 1243.4).
Defense Evidence
Defense counsel read into the record the police report of the officer who was dispatched to Monique's apartment after the offenses. At the time of trial, the officer was retired and unavailable to testify.
The officer reported that Monique was crying and her hand was bloody. She had several cuts on her right hand, the deepest of which exposed her muscle tissue. She had scratches on her face and was developing a black eye. Emergency personnel tended to her cuts.
Monique identified defendant by name and explained how she met him. She said they talked for a few hours, then his attitude changed and he attacked her. He grabbed her hair, held a knife, and told her, "I'm going to fuck you." She begged him not to rape her. He grabbed her breasts and forced her down. She grabbed for the knife and cut her hand. He punched her and she grabbed the knife again. She tried to bite his head, but she headbutted him instead. A third time, she grabbed the knife and got cut. There was blood everywhere.
Defendant unbuttoned his pants and took out his penis. He told her to suck it and he forced her head toward it. Fearing for her life, she decided she had to do what he told her if it meant staying alive. She grabbed his penis, but never made contact with her lips.
Suddenly, defendant stopped and told her to stop crying. She said she could not stop while he was holding the knife, so he threw it. She saw her blood on the knife blade. Blood was squirting from her hand and it was on defendant's white T-shirt. He was on top of her and he told her to stop crying because it was scaring him. He told her what he did was wrong and she should call the police. He said he would get 20 years for what he had done and he was not going to prison. But he agreed that he should pay for what he did. He said he would kill himself because he was not going to be locked up.
When defendant backed away, Monique saw a cut on his stomach. They talked for about 45 minutes and he told her he was not going to kill her. He said he was sorry his life was over. Monique kept trying to persuade him to let her go and finally he agreed. He gave her the keys to the Jeep, saying he knew the police would be coming for him. She left in a hurry and told her son what had happened. They went to the drugstore to get bandages. When they got home, she was calm enough to call the police. At that time, she realized that defendant had tried to call her from his cell phone at 7:13 a.m.
Monique cried as she explained the events to the officer. She said she had not agreed to have any form of sex with defendant, and they had not taken any drugs. She remembered grabbing and scratching defendant's neck during the struggle. She said defendant just exploded, then later stopped his attack and became passive.
The officer's report ended with this conclusion: "Victim met suspect over chat line/phone. She was not meeting for sex. Suspect became violent and tried to rape the victim. She fought back and he backed down. The victim was beaten and cut her fingers in an attempt to disarm the suspect."
DISCUSSION
I. Evidence of Prior Sexual Offense
Defendant contends the trial court erred by admitting evidence of his prior sexual offense pursuant to Evidence Code section 1108. He argues the evidence should have been excluded under Evidence Code section 352 because it was obvious to the jurors that Erica was a minor when the prior offense occurred, and the jurors would be influenced knowing defendant had sex with a minor. He asserts the evidence, which suffered from inconsistencies, was used to shore up a "somewhat weak case." We see no abuse.
As a general rule, evidence of a defendant's other bad acts is not admissible to prove his propensity or disposition to commit bad acts. (Evid. Code, § 1101.) However, section 1108 creates an exception in cases of sexual offenses, allowing admission of evidence of the defendant's other sexual offenses to show he has a disposition to commit sexual offenses.
"Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense. 'In the determination of probabilities of guilt, evidence of character is relevant. [Citations.]' [Citation.] Indeed, the rationale for excluding such evidence is not that it lacks probative value, but that it is too relevant. 'It may almost be said that it is because of the indubitable relevancy of specific bad acts showing the character of the accused that such evidence is excluded. It is objectionable not because it has no appreciable probative value but because it has too much.' [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 179; see People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta ).) But our Legislature has determined that in sexual offense cases, the policy considerations favoring the exclusion of evidence of other sexual offenses are outweighed by the policy considerations favoring its admission, and that "the need for this evidence is 'critical' given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial." (People v. Fitch, supra, at pp. 181-182.)
Admission of evidence under Evidence Code section 1108 remains subject to an Evidence Code section 352 analysis, which permits the trial court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Yu (1983) 143 Cal.App.3d 358, 377.) "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) An exercise of trial court discretion is reviewable only for abuse and "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Thus, on one side of the balance is the probative value of the evidence, which is increased by the relative similarity between the prior offenses and the charged offenses. (Falsetta, supra, 21 Cal.4th at p. 917.) In this case, there were many similarities between the prior offense and the current offense. Both victims accepted a ride from defendant late at night, both were strangers to defendant, both were taken to a remote location by defendant, both used methamphetamine with defendant, and both were forced to engage in sexual activity by defendant. We agree with the trial court that evidence of the prior offense was relevant to prove motive, intent, lack of consent, and propensity to commit forceful sexual offenses. The evidence was relevant to refute the defense theory that Monique attacked defendant because he refused to give her more methamphetamine; she got cut during a struggle with defendant, stole his Jeep, then invented the sexual assault story to explain her fingerprints on the knife and her possession of defendant's Jeep.Evidence that defendant had forced himself on another woman under similar circumstances was relevant to show he, not Monique, was the aggressor. Accordingly, the prior offense was highly probative of defendant's propensity to commit sexual offenses under these circumstances.
Counsel argued that Monique was lonely and emotionally unstable. Her husband had cheated on her and inflicted domestic violence upon her. And she was craving methamphetamine. This was "a recipe for violence." When defendant refused to prepare a second bowl of methamphetamine, Monique became violent. She pulled her knife from her purse and threatened him with it. As they struggled for the knife, she cut herself. Then defendant, "like a good guy, sat her down [in] the folding chair, bandaged her wounds, and then gave her his car because she's a crazy person because he wanted her the heck out of there." She lied to the police because she did not know whether defendant would turn her in because she had essentially stolen his car. She needed a story to explain why her fingerprints were on the knife, so she told the police defendant sexually assaulted her. But defendant did not act like a guilty person. He did not clean up the scene or destroy any evidence. Instead, he walked into the police station wearing a bloody T-shirt and pants and turned himself in.
On the other side of the balance are the inflammatory nature of the evidence, the probability of confusion, the remoteness of the offenses, and the consumption of time. (People v. Harris (1998) 60 Cal.App.4th 727, 737-741.) "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.)
As noted, defendant argues that evidence of the prior offense was inflammatory because the jurors could deduce that Erica had been a minor at the time of the offense. Despite the trial court's painstaking efforts to ensure that no reference was made to Erica's age, defendant claims her youth was obvious to the jurors. This claim, however, is based on speculation. Furthermore, even if it is true, we do not believe this fact would have rendered the evidence more prejudicial than probative.
Lastly, defendant asserts that the evidence was used to buttress a weak case. While we disagree with the characterization of the case as weak, we note that defendant has identified the precise reason for admission of evidence under Evidence Code section 1108. As discussed above, "sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence." (Falsetta, supra, 21 Cal.4th at p. 915.) Thus, the intent of Evidence Code section 1108 is "to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (Falsetta, supra, at p. 911.) Evidence of defendant's prior offense, in addition to evidence of any inconsistencies in Monique's story, was properly before the jurors for their credibility assessment.
We conclude the trial court did not abuse its discretion under Evidence Code section 352 when it admitted evidence of the prior offense. II. Romero Motion
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).
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Defendant asserts that the trial court abused its discretion by refusing to dismiss his prior strike conviction to qualify him as a "second striker" under the Three Strikes law and reduce his punishment.
Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) "'A court's discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with ... section 1385[, subdivision ](a).'" (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 ["a primary purpose of the Three Strikes law was to restrict judicial discretion"].) The Three Strikes law establishes "'a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike'" unless the sentencing court finds a reason for making an exception to this rule. (People v. Carmony (2004) 33 Cal.4th 367, 377.) There are "stringent standards that sentencing courts must follow in order to find such an exception." (Ibid.) In order to dismiss a prior strike conviction, "the court in question must consider whether, in light of the nature and circumstances of [the defendant's] 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, at p. 161.)
A trial court's decision not to dismiss a prior strike conviction is reviewed under the deferential abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at p. 374.) An abuse of discretion is established by demonstrating that the trial court's decision is "irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the court's decision will not be disturbed on appeal. (Ibid.)
In this case, defendant moved to dismiss his 1995 prior felony conviction for lewd and lascivious acts upon a child (§ 288, subd. (a)) on the ground that, during the commission of the current offenses, he did not force Monique to orally copulate him and he did not rape her. He ultimately stopped the attack, allowed Monique to walk away, gave her his car, and voluntarily surrendered himself to the police.
The trial court stated:
"I've heard what [defense counsel] has said about some aspects of this case that I think, you know, all of us were surprised by the idea, for example, that something much worse could have happened to Monique than did happen here. You let her go and gave her your car[] and all of that. And what I' m hearing [defense counsel] say is you ought to get credit for that. And understanding that I'm not God and I'm watching this process, it just seems to me in some cosmic sense that has happened here in the sense that [defense counsel] saved your life. That's just the truth. This jury, had they found you guilty of an actual forcible oral copulation, as opposed to an attempt to do that, the punishment here would have been life. And I guess I'm just pointing that out, because it seems to me that in some sense you have been saved from that punishment here by virtue of whatever the jury's consideration was of the facts of this case.
"But what's also fundamentally true, it seems to me, is that you represent a danger to the community, sir. That's just the truth. And the court has a fundamental obligation to protect the community from the kind of behavior that you have exhibited not just with respect to Monique, but to these two other young people. And there is nothing mitigating about your involvement with this 12-year-old girl that caused you to go to prison the first time. Nothing mitigating about it which suggests that I ought to [dismiss] that strike to give you less punishment, which would be the only reason for me to do that. And that would not be, in the court's view, in the interest of justice to do that, in light of the nature of the crime that you committed against Monique. So I'm denying any request to [dismiss] the strike or exercise my discretion under Romero to give you less punishment for that reason."
Defendant now argues that he is outside the spirit of the Three Strikes law because his criminal record is not very serious and without "any real violence," he is not a typical career criminal, and none of his victims was seriously injured. We disagree that defendant falls outside the spirit of the Three Strikes law, and we certainly cannot say that the trial court's decision was irrational or arbitrary. The court did not abuse its discretion by deciding not to dismiss a prior strike conviction.
III. Upper Term on Knife Use Enhancement
Defendant argues the trial court abused its discretion by imposing the upper term on the knife use enhancement on count 1. Again we find no abuse.
A trial court's sentencing decision is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (Sandoval, supra, at p. 847.) Thus, a trial court will abuse its discretion if it relies upon circumstances that are not relevant to the sentencing decision or that otherwise constitute an improper basis for decision. (Ibid.)
A trial court is "required to specify reasons for its sentencing decision, but [is not] required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances." (Sandoval, supra, 41 Cal.4th at pp. 846-847.) Under California's determinate sentencing law, "a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions." (Id. at p. 848.) "[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813.) "The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.'" (Sandoval, supra, at p. 848.)
At the sentencing hearing in this case, defense counsel argued that defendant could have done great violence to Monique, but instead he exercised restraint. Counsel also argued, as he did for the Romero motion, that defendant ultimately ceased, let Monique leave, gave her his car, and turned himself in. Counsel argued the court should select the mitigated or middle term of three or four years for the knife use enhancement.
The probation officer's report listed four circumstances in aggravation: the manner in which the crime was carried out indicated planning, sophistication or professionalism (Cal. Rules of Court, rule 4.421(a)(8)); defendant had engaged in violent conduct that indicated a serious danger to society (id., 4.421(b)(1); defendant's prior convictions were numerous or of increasing seriousness (id., 4.421(b)(2); and defendant's prior performance on probation or parole was unsatisfactory (id., 4.421(b)(5)).
The court stated:
"[I]t's also the court's view that with respect to the crime, with respect to your prior criminal history, and with respect to the fundamental overarching aggravating factor which you are engaging in violent conduct that represents a serious danger to the community, young women, older women, all women, as a practical matter—that that is the overarching consideration of the court in imposing what the court deems to be the appropriate sentence which is the aggravated term in this case.
"And I also find in particular that the use of the knife in this case was aggravated. Not only did Monique get injured particularly by the knife trying to take it away from you, [you] also put her in a position that she had to beg for her life for almost an hour which is, by any consideration, an aggravating circumstance, to put a person in a position of having to do that, the aggravating circumstance, the entire conduct of this crime."
The court proceeded to impose sentence, including the aggravated term of 10 years for the knife use enhancement.
Based on this record, we conclude the court found at least one aggravating circumstance—defendant's violent conduct that represented a serious danger to the community—that was reasonably related to the court's sentencing decision. This was enough (People v. Black, supra, 41 Cal.4th at p. 813 [single aggravating factor is sufficient]), and we will not disturb the trial court's decision.
DISPOSITION
The judgment is affirmed.
Kane, J. WE CONCUR: Wiseman, Acting P.J. Levy, J.