Opinion
F084942
12-18-2023
THE PEOPLE, Plaintiff and Respondent, v. JOE ANTHONY YANEZ, JR., Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Fresno County. Super. Ct. No. F22901355 Jonathan M. Skiles, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
Defendant Joe Anthony Yanez, Jr., committed lewd and lascivious acts on his girlfriend's daughter from the time she was six years old. A jury convicted defendant of two counts of lewd and lascivious acts on a minor, and the trial court found true that defendant had a prior strike conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Thereafter, the trial court sentenced him to prison for an aggregate term of 16 years.
Undesignated statutory references are to the Penal Code.
Defendant appeals his sentence, arguing that the trial court abused its discretion by denying his motion to strike his prior strike conviction. We reject defendant's claim and affirm the judgment.
PROCEDURAL BACKGROUND
The District Attorney of Fresno County filed an information on April 25, 2022, charging defendant with sexual penetration of a child 10 years of age or younger (§§ 288.7, subd. (b), 289; count 1) and lewd acts upon a child (§ 288, subd. (a); counts 23). The information also alleged one prior strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). Defendant pleaded not guilty and denied the allegation.
Count 1 alleged that the crimes occurred between August 2013 and August 2015; count 2 alleged that the crimes occurred between August 2012 and August 2014; and count 3 alleged that the crimes occurred between August 2016 and August 2017.
On July 22, 2022, after an eight-day trial, the jury returned a verdict of guilty on counts 2 and 3, which charged lewd acts upon on a child, and acquitted defendant of count 1. After defendant waived his right to a jury trial regarding his prior strike conviction, the trial court found the allegation to be true. Defendant orally moved to dismiss the strike allegation pursuant to section 1385, subdivision (c) based upon its remoteness, and the trial court continued the motion to the sentencing hearing.
A defendant's request for this type of leniency is commonly referred to as a "Romero motion" pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On September 6, 2022, the trial court denied defendant's motion to strike his prior strike conviction and sentenced him to 12 years as to count 2 (double the midterm of six years pursuant to § 667, subd. (e)) and a consecutive term of four years as to count 3 (one-third the midterm, doubled pursuant to § 667, subd. (e)), for a total term of 16 years in prison. The trial court found defendant did not have the ability to pay all fines and fees and reserved the issue of victim restitution.
Defendant filed a timely notice of appeal on September 12, 2022.
FACTS
Priscilla J. (mother) began dating defendant in 2009 or 2010. S.F., who was born in 2006, is her daughter. When S.F. was six years old, defendant began to touch her thighs and private areas. The first time, S.F. was playing at defendant's apartment with her sister. Defendant reached for her as she sat on the bed and touched her thigh and vagina over her clothing. He used his hand to move up and down over her vagina. When she tried to push his hand away, defendant said, "No, no, its fine." This happened for 15 to 20 minutes until mother came home.
Defendant touched her other times when mother took S.F. to another apartment that defendant shared with someone else. S.F. usually played a video game on a phone and defendant touched her thigh or sometimes went "straight into [her] vagina." One particular time, while mother was the store with S.F.'s sister and defendant's roommate, defendant laid down next to her on the bed and shifted closer and closer to her. Defendant then placed his hand on her stomach, slipped his hand under her clothing, and put his finger into her vagina. When S.F. tried to push his hand away, defendant told her that "it's okay" and "it's fine." He moved his fingers in and out of her vagina and in a circular motion over it. When mother returned, defendant looked at S.F. as to warn her not to say anything to mother.
When S.F. was nine or 10 years old, defendant lived with her family in Fresno. One time, when S.F. was watching television in the living room, defendant sat down next to her. He reached for her thigh and then went toward her vagina. She pushed his hand away, and then mother walked into the room. At other times, defendant tried to kiss S.F. and touched her breasts. One time, defendant sat next to her in the living room and tried to kiss her lips as he touched her thigh, but she turned her head away from him. Defendant then slipped his hand up to her breast and squeezed it.
S.F. testified that defendant touched her inappropriately more than 10 times, but she did not know if it was more than 20. On one occasion when defendant started to touch to S.F., she called out for mother. Mother responded immediately, but S.F. did tell her what had happened because she was scared. S.F. testified that she saw defendant hit mother one time during a fight.
Defendant stopped abusing S.F. when she was 10 years old, and he was no longer dating mother or living with them.
S.F. started therapy in October or November 2021. During one of her therapy sessions in December 2021, S.F. told her therapist about the sexual abuse. S.F. had seen defendant at her home earlier and was upset that mother might be getting back together with defendant, but she did not know that the therapist would be required to report the abuse. When S.F. left the appointment, she called her friend, L.M., before calling mother to pick her up. L.M. also testified that S.F. called L.M. after the appointment and told her that defendant had sexually abused S.F. S.F. testified that when mother arrived, S.F. told mother that defendant had been touching her inappropriately for years. Mother also testified that she learned of defendant's abuse when she picked S.F. up from a therapy appointment in December 2021.
Defendant testified and denied that he touched S.F. in a sexual way or touched her breasts or private parts.
DISCUSSION
The trial court did not abuse its discretion in denying defendant's motion to strike his prior strike conviction.
A. Sentencing Background
According to the probation report, defendant was convicted of misdemeanor burglary in July 1977. In May 1980, defendant was sentenced to a three-year term of probation for welfare fraud. He was convicted of transportation of a controlled substance, which violated his probation, and was sentenced to state prison for three years in September 1981. Defendant violated his parole twice in 1985. After being paroled again in March 1986, defendant was sentenced to 30 days jail for possession of drug paraphernalia that same month and returned to prison in August 1986. In April 1989, defendant was convicted of robbery and sentenced to five years in prison. Defendant was paroled but returned to prison in December 1991 after violating parole.
The probation report noted that defendant's risk of reoffending was below average based upon the Static-99R (an actuarial measure of risk for sexual offense recidivism). The probation report listed the following aggravating circumstances: (1) defendant engaged in conduct which indicates a serious danger to society; (2) defendant's prior convictions were numerous or of increasing seriousness; (3) defendant's performance on probation or parole had been unsatisfactory; and (4) defendant served a prior prison term. The report concluded that defendant's latest offenses "demonstrate the most vile of behaviors, as he molested his step-daughter over a period of years. Not only violating a position of trust, he stripped her of her innocence, leaving her with anxiety and anger."
Although the probation report referred to defendant as S.F.'s stepfather, defendant and mother were not married.
At sentencing on September 6, 2022, defense counsel argued that defendant was "asking for a hope of life outside of prison" because he was 71 years old. Defense counsel renewed his request that the trial court consider striking the prior strike conviction because it occurred 24 years prior and defendant had already been punished by a prison term. Defense counsel also argued that defendant's last criminal activity involved driving on a suspended license (in 1991) and, therefore, indicated "a real break in criminal activity." The prosecutor acknowledged the break in criminal activity but argued that the court should not strike the prior strike conviction because defendant had "victimized a very v[u]lnerable victim" by selecting a young girl who was essentially his stepdaughter and victimizing her over a period of years. The prosecutor argued that the two counts of which defendant was convicted, as well as defendant's continuous behavior over a period of years, affected S.F. greatly and required her participation in therapy sessions.
The trial court commented that while defendant was convicted of two counts, S.F. testified that the conduct occurred over a significant period of time. The court recognized that a significant period of time had elapsed between defendant's robbery conviction, parole violation, and the instant offense, but "that still leaves the Court with a scenario going from a robbery conviction to several counts of [section] 288. Those are all extraordinarily serious crimes, and even given the break of crime between those two convictions, I can't ignore the fact that those are extraordinarily egregious violations so the Court is denying [defendant's] Romero [motion]. I simply cannot find that you fall outside the spirit of the [T]hree [S]trikes law." (Italics added.)
B. Applicable Law and Standard of Review
Section 1385 grants trial courts 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. 504, 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, third bracketed insertion added (Williams).) The Three Strikes law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, at p. 528; accord, 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 (Carmony).) 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." (Williams, at p. 161.)
A trial court's decision not to dismiss a prior strike conviction is reviewed under the deferential abuse of discretion standard. (Carmony, supra, 33 Cal.4th at p. 374.) The Three Strikes law establishes that not striking a prior strike conviction is the norm, and there is a "strong presumption that any sentence that conforms to [the] sentencing norm[ ] is both rational and proper." (Carmony, at p. 378.) An abuse of discretion is established by demonstrating "that the trial court's decision was 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, 309-310.) "Where the record is silent [citation], 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 are required to affirm the trial court's ruling," 'even if we might have ruled differently in the first instance.'" (Carmony, at p. 378, first bracketed insertion added.)
C. Analysis
Defendant requested that the trial court exercise its discretion to strike the prior strike conviction. At sentencing, the trial court had reviewed the letters submitted by defendant's relatives, heard the victim and her parent's statements, and had a copy of the probation report. The trial court found that defendant did not fall outside the spirit of the Three Strikes law as he progressed from committing robbery to "several counts of [lewd and lascivious acts on a minor]," which it characterized as "extraordinarily serious crimes" that could not be ignored, even given the break of crime between the two convictions. Defendant argues that the trial court abused its discretion in declining to strike his prior strike conviction due its remoteness and his age.
We conclude that defendant has failed to establish that the trial court's denial of the invitation to strike his prior strike conviction was outside the bounds of reason under the facts and the law. We may not find an abuse of discretion unless the decision was so irrational or arbitrary that no reasonable person could agree with it. And here, it was not. Defendant's argument that the trial court should have weighed certain factors-his age and the remoteness of his prior strike-more heavily than others does not establish an abuse of discretion.
The trial court considered relevant factors and acted to achieve legitimate sentencing objectives. Defendant had been convicted of misdemeanor burglary, welfare fraud, and transportation of a controlled substance between 1977 and 1981 and violated his parole approximately three times before finishing service of his prison sentence sometime after August 1986. In 1989, defendant was convicted of robbery and sentenced to five years in prison. He violated parole once before he finished serving his sentence. While defendant was not convicted of further crimes after his release from prison sometime after December 1991, he did commence sexually molesting a six-year-old girl and continued doing so for five years between 2012 and 2017.
Defendant argues that "[t]he trial court's characterization of the prior robbery as an extraordinarily serious crime is not supported by the record" because it was not first degree robbery, defendant did not plead guilty to the allegation that he used a weapon, and no one was injured during the robbery. However, the trial court's comments are an accurate description of the nature of the crime. The Three Strikes law is an alternate sentencing scheme applicable to individuals previously convicted of "one or more serious or violent felony offense" and defines "violent felony" with reference to section 667.5. (§ 667, subds. (b), (d).) Section 667.5, subdivision (c)(9) includes "[a]ny robbery" as a violent felony because "[t]he Legislature finds and declares that [such crimes] merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person." (§ 667.5, subd. (c).) Given that the Legislature characterizes robbery as an "extraordinary crime[ ] of violence," we cannot find that the trial court erred in its characterization of defendant's prior strike conviction. (See People v. Leonard (2014) 228 Cal.App.4th 465, 504 [rejecting claim that court "placed 'undue weight' on the seriousness of the prior conviction"].)
Defendant next argues that the trial court's characterization of his current crimes as "extraordinarily serious" is not supported by the record. Defendant argues that the offenses involved nonforcible lewd acts on a child, which is punished less harshly than forcible lewd acts on a child and is "less serious." However, the trial court was not incorrect to characterize the nature of the offenses as serious. We note that the Three Strikes law "identifies eight types of particularly serious or violent felonies, known colloquially as 'super strikes,'" which include "lewd or lascivious act involving a child under 14 years of age, in violation of section 288" regardless of whether force is used in the offense. (People v. Valencia (2017) 3 Cal.5th 347, 351 &fn. 3, citing § 667, subd. (e)(2)(C)(iv)(I-VIII).)
Defendant also argues that the trial court "relied on uncharged and unproven misconduct" by considering defendant's acts of molestation of S.F. on occasions other than those charged in counts 2 and 3. However, the trial court was required to weigh the nature and circumstances of defendant's instant offense (Williams, supra, 17 Cal.4th at p. 161), and S.F. testified that defendant molested her more than 10 times starting when she was six years old and ending when she 10 years old. Defendant provides no case law to suggest that a trial court may not consider such testimony or circumstances in determining whether to strike a prior conviction. (See, e.g., People v. Mendoza (2022) 74 Cal.App.5th 843, 859 ["whether or not it was charged, the trial court was entitled to consider [d]efendant's prior behavior evident in the record in considering the Williams factors"].) Here, the trial court's reference to defendant's additional criminal conduct simply underscored the seriousness of the conduct as weighing against a sentence mitigation, not an effort to punish an unproven crime. The trial court properly took the seriousness of the present offenses into account when it declined to strike defendant's prior strike conviction. (See Williams, at p. 161 ["preponderant weight must be accorded to ... the nature and circumstances of the defendant's present felonies"].)
Defendant argues that the trial court failed to properly weigh defendant's background, character, and prospects before denying his motion to strike. However, we presume the court considered all relevant factors in the absence of an affirmative record to the contrary. (See People v. Myers, supra, 69 Cal.App.4th at p. 310.) The trial court's stated reasons, which may not have encompassed all of its legal reasoning, referred to both defendant's prior strike conviction as well as the instant offense, defendant's relationship with S.F. and mother, and the harm caused to S.F. by his conduct.
Because declining to strike a prior strike conviction is the "norm," we presume the trial court's decision was proper. (See Carmony, supra, 33 Cal.4th at p. 378.) The fact that defendant's prior strike conviction was 24 years old does not convince us otherwise. "In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813; see People v. Solis (2015) 232 Cal.App.4th 1108, 1124 [a prior strike conviction is not properly stricken merely because it is 30 years old].) No case law compels a judge to strike a prior strike conviction simply based on its age.
Defendant has failed to show that the trial court was either unaware of its discretion or considered impermissible factors. We cannot say that its ruling was irrational or arbitrary such that no reasonable person could agree with it. The record shows that the trial court considered counsels' arguments as well as defendant's criminal history and his conduct in the instant offense in declining to strike his prior strike conviction. On the record before us, the trial court did not abuse its discretion in deciding that the prior strike conviction and instant offense fell within the spirit of the Three Strikes law.
DISPOSITION
The judgment is affirmed.
[*] Before Hill, P. J., Poochigian, J. and Meehan, J.