Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County Super. Ct. No. NA046222. Tomson T. Ong, Judge. Affirmed in part, reversed in part, and remanded with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
INTRODUCTION
Appellant Amos Lee White challenges the sentence imposed following his convictions of committing forcible lewd acts upon a child under fourteen. He contends the trial court abused its discretion by refusing to vacate findings of prior serious felony convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
We conclude the trial court abused its discretion by basing its denial of the Romero motion upon an erroneous belief that appellant was convicted of offenses against multiple victims. We remand for reconsideration.
BACKGROUND AND PROCEDURAL HISTORY
Appellant asked his grand-niece, six-year-old Breanna H., to stand on a stool in the garage and reach upward for something. When her hands were raised, he grabbed her wrists and tied them with a rope. He then danced around her, put his head on her chest, touched her body with his, and sucked on her cheek. Two weeks or two months later, she awoke to find appellant on top of her, stroking her thighs. He ignored her demand to get off, held her arms above her head, and kissed her. Each incident concluded when another person entered the room.
A jury convicted appellant of two counts of forcible lewd conduct upon a child under the age of 14. Both counts pertained to Breanna. The jury could not reach a verdict on a third count pertaining to Breanna’s sister. The trial court declared a mistrial with respect to that count and subsequently dismissed it. In a bifurcated court trial regarding prior conviction allegations, the court found appellant had suffered two prior serious felony convictions within the scope of the “Three Strikes” law and Penal Code section 667, subdivision (a)(1). Appellant was sentenced to 60 years to life in prison.
On the first appeal in this action, this court affirmed the conviction but vacated the sentence and remanded for reconsideration of appellant’s Romero motion. We wrote that the trial court’s explanation of its denial of the motion “suggests it did not discharge its duty under Romero to consider the interests of society. Appellant was 49 at the time of the offenses and 54 at the time of sentencing. His strike convictions dated from 1969 and 1971, when appellant was 17 and 19, respectively. In the 29 years between the 1971 conviction and the current offenses, he suffered only two convictions in total, and only one felony, in 1989. Given the mandatory consecutive sentencing under Penal Code section 667.6, subdivision (d) and the mandatory ten years of enhancements under Penal Code section 667, subdivision (a), appellant was subject to an aggregate term of 16 to 26 years if sentenced outside of the Three Strikes Law, or 22 to 42 years if sentenced to a second strike term. The trial court’s explanation suggests it failed to consider whether these sentencing alternatives would adequately protect society by providing a lengthy sentence for very serious offenses without verging into excess by imposing a term guaranteeing appellant will die in prison.” (People v. White (Sept. 12, 2006, B185003) [nonpub. opn.] [at p. 9].) We also ordered the trial court to refrain from imposing a court security fee under Penal Code section 1465.8 because that statute went into effect after appellant committed the offenses charged in this action.
On remand, the trial court reconsidered its ruling on the Romero motion, but again denied it and imposed the same sentence of 60 years to life.
DISCUSSION
Appellant contends the trial court abused its discretion when reconsidering its Romero motion ruling because it ignored the fact that appellant’s prior convictions were approximately 30 years old and appellant was a teenager when he committed those prior offenses; disregarded this court’s admonition to consider sentencing alternatives, such as vacating one “strike” and imposing a second strike term; and based its ruling on an erroneous belief that appellant had been convicted of offenses against two different victims in this case.
A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. (Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising this power, the trial court must consider the defendant’s background, his constitutional rights, the nature of the current offense, and the interests of society. (Id. at pp. 530-531.) The court should not dismiss or vacate a “strike” unless it concludes that the defendant may be deemed to be outside the anti-recidivist “spirit” of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court’s decision is reviewed deferentially. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) The court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the 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. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances,” such as where the court was unaware of its discretion or considered impermissible factors. (Id. at p. 378.) “Where the record is silent . . . or ‘[w]here 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.’ [Citation omitted.] Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation omitted], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
Upon remand, the trial court reconsidered the Romero motion and explained its denial as follows:
The Court: “Let me just indicate the court of appeal asked this court to consider societal interest in the Romero issue. The court imposed 60 years to life sentence, stating that I accepted the prior convictions are old, but the current offense, in molesting his relatives, does not suggest that the defendant would have a law-abiding future. Therefore I rejected the Romero motion.
“In order to clarify for the parties and any reviewing courts, I will outline specifically this court’s thought in the reconsideration of the Romero motion.
“1. The age of the prior conviction is a factor in favor of the defendant. In re Saldana, 57 Cal.App.4th 620 (1997).
“2. The nature of the current and prior offense, using California Rules of Court, is a circumstance that disfavors the defendant. I cite to People v. Thomas, 4 Cal.4th 206, 211-212 (1993).
“Those factors are:
“4.421 (a)(1). The crime involved great violence or other degree of viciousness or callousness. Here, the defendant molested minors that are relatives. He breached his trust to his family members that would have sought protection from him.
“4.421 (a)(3). The victims were particularly vulnerable. Here, the victims are minors. The defendant is a mature adult.
“4.421 (a)(8). The manner in which the crime was committed or carried out indicates planning. The defendant waited until all the adults were not around before he committed each of these discrete acts.
“4.421 (a)(11). The defendant took advantage of a position of trust or confidence to commit the offense. As I recall the facts, he was the babysitter for one of the victims and was in a position of trust or confidence which he breached.
“4.421(c). Any other facts statutorily declared to be circumstances in aggravation. Here, you have multiple minor victims molested by the defendant.
“The trial court is aware of the defendant’s age, and customarily they weigh in favor of the defendant. However, in this particular case the interest of society’s safety suggests that the Romero motion should denied. This trial court has weighed and finds that the circumstances in aggravation are so substantial in comparison to the circumstances in mitigation that the motion should be denied.
“This is not an aberrant behavior by the defendant where he had one lapse of judgment. There are multiple minor victims in this case, with events happening at different times and different locations. Moreover, the defendant waited until the opportunity to commit the crime exists, that is that he is alone with each minor before committing each serious or violent felony. And, the last offense is not a non-strike offense, rather, he has committed two new ones. It is apparent to this trial judge that the defendant knows his age, and knows that his prior strikes were old but not cold. The defendant is willing to take the risk of committing serious or violent felonies in hopes that he will get a determinate or alternate sentence because of his age or old but not cold strikes. This trial judge is of the opinion the defendant is a danger to society, to the minors living in society, and minors that he comes in contact with, particularly the ones that he has a trust or fiduciary relationship with.”
Defense counsel informed the court that both counts of which appellant was convicted pertained to the same victim. The court responded, “Let me explain, if you will. [¶] Count 1 alleges Brianna [sic]. Count 2 is really count 4, as you will recall, and count 4 alleges Marshonnae. Since count 1 and count 2 had different victims named Brianna [sic] and Marshonnae I would think there are two victims in this case. Are you telling me they are one in [sic] the same person?” Defense counsel responded that both convictions pertained to a single child, while the jury hung on the count pertaining to the other child. The court replied that the jury hung on a count involving Breanna, not Marshonnae. It concluded by saying, “It is the other event, so we are talking about multiple victims. In any case, not multiple victims, I’m sorry, and multiple circumstances, multiple events.”
The trial court’s thoughtful explanation of its consideration of a variety of pertinent factors, including the age of appellant’s prior convictions, substantially addresses the discrepancies that caused this court concern during the original appeal. However, the trial court based its analysis on an extremely significant factual error: it believed appellant’s convictions pertained to different victims. In actuality, as expressly noted in our opinion on the first appeal, the jury convicted appellant of two counts in which the victim was Breanna, but could not reach a verdict on a third count pertaining to Breanna’s sister, Marshonnae. Accordingly, much of the trial court’s explanation of its rationale for denying appellant’s Romero motion is inherently unfounded because it is based upon an erroneous view of the facts. In addition, the court did not address the adequacy of sentencing alternatives, as our prior opinion expressly directed.
Respondent concedes that the trial court based its analysis, in part, on a factual error, but argues that the court’s analysis was nonetheless sound because appellant committed offenses against Breanna on different occasions, at different times, in different locations. Respondent’s first two points are really one, as an offense committed on a different occasion is necessarily committed at a different time. Respondent’s third point—different locations—is both inconsequential and poorly supported by the record. One offense against Breanna took place in the garage and the other in a bedroom of the same house. In any event, respondent’s attempts to maximize the difference between the two counts against Breanna is unavailing, as the trial court repeatedly stressed the significance of its belief that there were multiple victims, not multiple locations. The trial court’s emphasis on this factor appears to echo the public policy reflected in legislation such as Penal Code section 667.61, that “[o]ffenders who strike against multiple victims are among the most dangerous” (People v. DeSimone (1998) 62 Cal.App.4th 693, 698), and should be punished more severely than those who prey upon a single victim.
Given the fundamental factual error of the trial court and the court’s great reliance upon its factual misconception, we conclude the trial court abused its discretion. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) We do not hold that a denial of appellant’s Romero motion will in all cases be an abuse of discretion, but simply that the trial court must base its decision upon an accurate version of the facts and must also consider the adequacy of a sentence under Penal Code sections 667.6, subdivision (d) and 667, subdivsion (a), rather than the Three Strikes law for appellant, which it failed to do on the prior remand. Following a thorough consideration of all pertinent factors and the true facts, the trial court is free to exercise its discretion in accordance with Romero and its progeny.
DISPOSITION
The sentence is vacated and the case is remanded for reconsideration of appellant’s Romero motion. In all other respects, the judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.