Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BA281783. Norman J. Shapiro, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Bolton Mitchell.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant Donald Jordan.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Lawrence M. Daniels, Supervising Deputies Attorney General, Beverly K. Falk, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
Defendants and appellants Bolton Mitchell (Mitchell) and Donald Jordan (Jordan) (collectively, defendants) waived their right to a jury trial. After a bench trial, the trial court convicted Jordan of four counts of committing a lewd or lascivious act on a 14 year-old child at least 10 years younger than he (Pen. Code § 288, subd. (c)(1)) and one count of inducing a child under the age of 16 to engage in a lewd act (§ 266j). The trial court found true the allegation that Jordan had one prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds (a)-(d)). The trial court sentenced Jordan to a 16-year term in state prison, consisting of the upper term of 8 years on his conviction under § 266j, doubled for his prior strike conviction. Jordan was sentenced to concurrent 2-year terms, the mid term, on each of his convictions under § 288, subdivision (c)(1).
All statutory references are to the Penal Code.
The trial court convicted Mitchell of one count of committing a lewd or lascivious act on a 14-year-old child at least 10 years younger than he (Pen. Code § 288, subd. (c)(1)). The trial court found true the allegations that Mitchell had four prior strike convictions (§§ 667, subds. (b)-(i); 1170.12, subds (a)-(d)). The trial court struck three of Mitchell’s prior strike convictions and one prior-prison-term allegation pursuant to section 1385. The trial court sentenced Mitchell to a 6-year term in state prison, consisting of the 3-year upper term, doubled for his one prior strike. For the reasons stated below, we affirm.
BACKGROUND
At the time of the relevant events, Melissa B. was a 14-year-old child, the seventh of nine children in her family. Melissa had experienced developmental difficulties her entire life. She did not talk until she was four; she was sensitive to sound and touch; she had difficulty with motor skills, reasoning and in social situations. She had received special accommodation at school since the fourth grade. As a high school freshman, Melissa had learned to mask her disability to some extent by, among other things, talking fast, but she had also become rebellious and resented that her father treated her like “a little kid.”
Melissa’s father testified that Melissa suffered from a form of autism, but no competent evidence was introduced to support that diagnosis.
A. Melissa Runs Away
On April 9, 2005, Melissa ran away from home. She met a boy from her neighborhood, Jeremiah. Melissa and Jeremiah took a bus to downtown Los Angeles to see a friend of Jeremiah’s and to “hang out.”
While they were downtown, Jordan, who was 46 years old, drove slowly by in a white Cadillac and attempted to get Melissa’s attention. Jordan offered Jeremiah and Melissa a ride; they accepted and got into Jordan’s car. As they did so, Jeremiah told Melissa that she was to give Jordan oral sex. Melissa did not know why, but she did not object.
Once she was inside the car, Jordan asked Melissa her name and age. Melissa said, “My name’s Melissa, and my age is fourteen and a half.” Jordan drove Jeremiah and Melissa to a park, where Melissa went to use the restroom. When she returned to the car, Jeremiah was gone. Jordan told Melissa that Jeremiah had sold her to him, and talked to her about oral sex. Melissa was “kind of confused,” but proceeded to perform oral sex on Jordan. Jordan attempted to have vaginal intercourse with Melissa, but was unable to achieve penetration.
They left the park. At some point, Jordan told Melissa that she was going to be a prostitute. He instructed Melissa to tell men that her name was Diamond and that she was 18 years old. Over the next day or two, Jordan introduced Melissa to approximately six men, with whom she proceeded to have sex in hotel rooms. She gave the money she received from these men to Jordan.
Eventually, Jordan and Melissa met Mitchell, who was 42 years old. The three of them went to the Snooty Fox Motel. Melissa told Mitchell that her name was Diamond and that she was 18. Melissa went to shower; Jordan joined her in the shower and asked her to perform oral sex on him, which she did. Melissa also performed oral sex on Jordan on the bed in the hotel room, after which Jordan left the room.
When Melissa and Mitchell were alone together in the hotel room, Mitchell asked Melissa for her real name and age. Melissa told Mitchell that her name was Diamond and that she was 18 because she was afraid that Jordan would return and hit her or slap her in the face, as he had done once before when Melissa told someone her real name and age. Mitchell asked Melissa why she did not go home; Melissa told him she did not want to because she was angry at her father and for other reasons. Melissa and Mitchell had vaginal intercourse. Both of them fell asleep afterward, with Mitchell naked on the bed and Melissa in a T-shirt and shorts on the floor.
B. Defendants’ Arrests and Mitchell’s Interrogation
Melissa’s father reported her missing to the police soon after she disappeared. Officer Darius Lee of the Los Angeles Police Department was assigned by his watch commander to make periodic checks on Melissa’s case. Officer Lee spoke to a juvenile friend of Melissa’s, who provided a description of a rust-stained white Cadillac and an African-American male approximately six feet tall, 200 pounds, 40-45 years of age, wearing all brown and a brown hat.
At approximately 1:15 a.m. on the morning of April 12, Officer Lee saw a rust-stained white Cadillac at a gas station at the intersection of La Brea and Jefferson. A man matching the description given to Officer Lee by Melissa’s friend stepped out of the Cadillac. That man was Jordan. Officer Lee and his partner, Officer Chui, approached Jordan and asked him if he had seen a girl matching Melissa’s description, last seen in the area of Redondo Boulevard and 20th Street. Jordan responded that he had picked up “a couple of kids” near Redondo and Washington Boulevard (one block from Redondo and 20th), and given them a ride to Dorsey Park. Officer Lee then secretly turned on a tape recorder he carried in his shirt pocket.
Defendants were, prior to all custodial interrogations, properly advised of their Miranda rights, and they do not contend otherwise.
Jordan told Officer Lee that Melissa had asked him for a ride, that he had dropped off Melissa and her companion, and that the two of them had walked away together. He denied knowing where Melissa was. After Officer Lee persisted in his questioning, Jordan admitted that Melissa was in Room 104 at the Snooty Fox Motel, and described the man that Melissa was with. Officer Lee radioed Melissa’s location and the description of the man to his dispatcher. Officer Lee showed Jordan a photograph of Melissa, and Jordan confirmed that Melissa was the girl he was speaking about.
Melissa and Mitchell were awakened by the police knocking on the door of their motel room. Melissa hid in the closet. Mitchell opened the door, and the police entered.
When Officer Lee subsequently arrived at the motel room, three officers were near the closet, speaking with Melissa. Mitchell was on the bed, covering his lower body with a sheet. Officer Lee observed two crack pipes and other drug paraphernalia in the room, as well as condoms and alcohol. Mitchell was taken into custody.
Detective Daryl Groce was assigned to be the investigating officer on Melissa’s case. On April 12, Detective Groce and his partner, Detective Martin, recorded their interrogation of Mitchell.
During the interrogation, Mitchell admitted that he had asked Melissa her age because he “didn’t think she was” really 18. Mitchell was a casual acquaintance of Jordan’s, who Mitchell knew as “Don Juan” and a reputed pimp. Mitchell saw Jordan at a gas station, and asked him for a ride. He thought Melissa was Jordan’s girlfriend, and described their relationship as “pimpish.” Mitchell rode with Jordan back to Mitchell’s room at the Baldwin Hills Hotel, where they met a group of people “hanging out” and “drinking, smoking, getting high[.]” They left so that Mitchell could rent a car, but because they were “feeling good” after “kicking it” their “actual goal got set aside.” They decided to get another room to do more partying. Mitchell had some money, so he rented a room at the Snooty Fox. Mitchell left Jordan and Melissa alone in the room and went to get some dinner, thinking that “the little girl seemed scared[.]” “[T]hat’s how I saw her initially,” he told Detective Groce. “A little girl. . . . [¶] That’s why I said I asked her her age.” Mitchell told the detectives that Melissa said she was 19, to which Mitchell responded, “Is that the age he told you to say?” Mitchell admitted to having consensual sexual intercourse with Melissa. Mitchell stated that he offered to pay Jordan for his “sexual encounter” with Melissa, but Jordan declined because Mitchell had paid for the room.
The trial court did not consider Mitchell’s statement in resolving the charges against Jordan.
C. Jordan’s Testimony
Mitchell did not testify or put on any affirmative evidence. Jordan testified on his own behalf.
Jordan testified that he was in a slow-moving line at a car wash at Redondo and Washington when he saw Melissa and Jeremiah. He did not know either of them. He thought that Melissa was Jeremiah’s girlfriend, and that she was on a “ho stroll” and was a “rockstitute,” meaning she exchanged sex for rock cocaine.
Jeremiah was talking to a drug dealer that Jordan had done business with in the past; the drug dealer introduced Jeremiah to Jordan as a gang member and dope dealer. Jordan gave Jeremiah a ride to a parking lot at Ranch Park, near Dorsey High School, identified by Officer Lee as a location known for drug trafficking and drug use. Jordan smoked crack cocaine in his car; he testified that Melissa did so as well, and that she had her own crack pipe. When Melissa got out of the car to use the restroom, Jeremiah left the car to make a “philly blunt cigar,” a cigar wrapper containing marijuana and cocaine; he then walked away toward a group of apartment buildings known in Baldwin Hills as “the Jungles.” When Melissa came back, Jordan explained that Jeremiah had gone. Just then, the “park police” began patrolling the lot; nervous, Jordan pulled out of the lot with Melissa still in the car.
Presumably, the Department of Parks and Recreation Safety Police.
Jordan denied that Melissa performed oral sex on him or that they engaged in any “sexual touching” while they were in the parking lot. Jordan testified that, at some point, Melissa told him her name was Christy; when he asked Melissa’s age, she said she was 18.
Jordan drove to some friends’ house to get high. Melissa asked to come along, and Jordan let her. His friends, however, were not so welcoming; because they did not know Melissa, they did not want her at their house. Jordan and Melissa left the friends’ house along with one of Jordan’s friends and went to a gas station, where Jordan’s friend bought cigarettes and “some paraphernalia.” Jordan’s friend wanted Jordan to take him to get some heroin, but Jordan said he did not have enough gas. They went back to Jordan’s friends’ house to get some money, this time leaving Melissa in the car. Jordan stayed inside for five or six hours ingesting cocaine. Jordan then took Melissa to the Baldwin Motel, which Jordan described as his “hang out.” Jordan attempted to procure more crack cocaine, while Melissa smoked cocaine on the steps behind the motel. Jordan denied that he took money from Melissa or offered Melissa to others for sex.
At daylight, they left the motel. Melissa asked Jordan to take her to a friend’s house at 8th Street and Union. Melissa went into a building there; Jordan waited for approximately one hour. When Melissa came out, she had more crack cocaine, and gave some to Jordan. Melissa introduced Jordan to her friend Natalie and Natalie’s boyfriend, a drug dealer. After dropping off Natalie’s nephew and nieces, the four of them went to “the Bottoms,” an area known for drug trafficking. Natalie’s boyfriend went to buy something, and then gave Jordan some gas money and some dope. The four of them then went downtown, where Jordan again waited as Natalie and Melissa went to procure more drugs. Eventually, Natalie and Melissa invited Jordan into an upstairs apartment nearby, where the occupant was “cooking up” cocaine in the kitchen. Jordan stayed at the apartment for approximately forty-five minutes smoking cocaine, while Melissa waited for someone. When that person did not arrive, Jordan left with Melissa.
Jordan testified that, at some point, he returned to his mother’s house to sleep. He left Melissa in the car overnight. His mother objected, and ordered him to take Melissa away from her house. Jordan’s testimony is unclear regarding at what point in his chronology of events this incident occurred.
They returned to the Baldwin Motel, where Melissa again went to smoke crack cocaine on the steps. Approximately one hour later, Jordan and Melissa drove to a gas station, where they bought a glass tube to use as a crack pipe. While there, Jordan met Mitchell, with whom he was acquainted. Mitchell had an open bottle of vodka and seemed to be intoxicated. Jordan gave Mitchell a ride to a bank, where Mitchell withdrew money from the ATM. Jordan, Mitchell and Melissa eventually ended up at the Snooty Fox, where Mitchell rented a room in which the three of them could get high.
Jordan testified that, once in the room, he stripped to his underwear in preparation for taking a shower, but sat on the bed to smoke crack before doing so. Melissa sat next to him on the bed, took a “hit” on her crack pipe, and then spontaneously leaned over, took Jordan’s penis out of his underwear, and put it in her mouth. Because Jordan was high, he did not become aroused; rather, he became “irritated” and told Melissa to stop after less than a minute. Jordan went into the shower; Melissa followed him and they showered together. Jordan denied that they had any sexual contact while in the shower. He left the hotel room soon thereafter, and was subsequently arrested by Officer Lee.
DISCUSSION
A. The Trial Court Did Not Err in Refusing to Consider Good Faith Mistake Of Age an Affirmative Defense under Section 288, Subdivision (c)(1).
Defendants argue that the trial court erred in refusing to consider a good-faith, reasonable mistake of age (“mistake of age”) as an affirmative defense to the charges under § 288, subd. (c)(1). Section 288 proscribes “willfully and lewdly commi[tting] any lewd or lascivious act” upon a minor under the age of 16 “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of either the perpetrator or the child. (§ 288, subd. (a).) If the child is under the age of 14, the crime is a felony punishable by three, six or eight years in state prison. (Ibid.) If the child is 14 or 15 years old, and the perpetrator is at least 10 years older than the victim, the crime can be prosecuted as either a misdemeanor or a felony; if prosecuted as a felony, the crime is punishable by one, two or three years in state prison. (§ 288, subd. (c)(1).) Defendants recognize that the mistake-of-age defense does not apply in prosecutions under section 288, subdivision (a) involving victims under 14 years of age. (People v. Olsen (1984) 36 Cal.3d 638 (Olsen).) Defendants contend, however, that section 288, subdivision (c)(1) should not be read to exclude the mistake-of-age defense in cases involving victims who are 14 or 15 years old. Defendants point to People v. Hernandez (1964) 61 Cal.2d 529, in which the California Supreme Court held that a defendant’s good faith, reasonable belief that his or her underage sex partner was 18 or older can be a defense in statutory rape prosecutions under section 261, subdivision (1) (now section 261.5).
Section 288 provides, in relevant part: “(a) Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
Defendants’ argument was rejected in People v. Paz (2000) 80 Cal.App.4th 293 (Paz). In that case, a 28-year-old defendant was convicted of lewd or lascivious acts upon a 14-year-old victim. (Id. at pp. 294-295.) The victim admitted telling the defendant that she was 16 years old. The defendant argued that the trial court should have instructed the jury on his mistake-of-age defense, contending that a 14- or 15-year-old victim did “not warrant the same public policy child protection given by the law to victims under the age of 14.” (Id. at p. 295.)
The court of appeal disagreed. After engaging in a detailed review of subsection (c)(1)’s legislative history, the court in Paz held that permitting a mistake-of-age defense “would undermine the purpose the Legislature sought to achieve by enacting subdivision (c).” (Paz, supra, 80 Cal.App.4th at pp. 295-296.) The statute was enacted to fill a gap in the felony laws with respect to victims of lewd conduct who were 14 or 15 years old. (Id. at p. 296.) To avoid criminalizing consensual sexual contact short of intercourse between consenting teenagers, subdivision (c)(1) applies only if the perpetrator is at least ten years older than the victim. (Paz, supra, at pp. 296-297.) The Legislature was thus “attuned to and took action to prevent” situations in which a “‘sexually naïve’” 14- or 15-year-old child could “fall victim to a more experienced adult.” (Id. at p. 297.) Subsection (c)(1) thus reflects a “legislative desire to protect 14- and 15-year-olds from predatory older adults to the same extent children under 14 are protected by subdivision (a)[.]” (Id. at p. 297.) That is, “section 288 offenses set out a hierarchy of victims, from the most vulnerable — infants and children under subdivision (a) — to those perceived as less vulnerable — young teenagers under subdivision (c)(1). The age distinctions help define the gravity of, and the range of punishment for, the offense.” (Ibid., italics omitted.)
Defining crimes by reference to the relative ages of the perpetrator and victim has been a favorite strategy of state legislatures seeking to avoid the injustice of criminalizing sexual contact between minors of roughly similar age. (See, e.g., §§ 261.5, subds. (b)-(c); 288a, subds. (b)-(c); see generally, Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model (2003) 53 Am. L. Rev. 313, 354-358.)
The court in Paz also found persuasive the complete absence in subdivision (c)(1) of any consent element. This “strongly suggests the Legislature did not intend the ‘understanding’ of the perpetrator to affect the application of the subdivision.” (Paz, supra, 80 Cal.App.4th at pp. 297.) Also, subdivision (c)(1) prescribes a lower range of prison terms than does subdivision (a), and, in appropriate cases, a violation of subdivision (c)(1) can be prosecuted as a misdemeanor, whereas a violation of subdivision (a) is always a felony. (Paz, supra, 80 Cal.App.4th at p. 297.) The sentencing structure of section 288 thus supports the conclusion that the Legislature did not intend to permit defenses based on mistake of age, but rather intended that any such mistake would be considered in sentencing. (Paz, supra, 80 Cal.App.4th at pp. 297-298.)
As noted above, section 288, subdivision (a) prescribes prison terms of three, six or eight years; subdivision (c)(1) prescribes terms of one, two or three years in cases prosecuted as a felony.
Finally, the court in Paz, supra, 80 Cal.App.4th at p. 298, noted that in Olsen, supra, 36 Cal.3d 638, the California Supreme Court held that mistake of age is not a defense under section 288, subdivision (a). The decision in Olsen predated by some four years the enactment of subdivision (c)(1). The Legislature was thus aware of the holding in Olsen, and could have included language permitting a mistake of age defense had it intended “to forbid application of the Olsen rationale to this later subdivision, a part of the same statute dealt with in Olsen.” (Paz, supra, 80 Cal.App.4th at p. 298.) The Legislature had a ready model for doing so, having enacted in 1981 section 1203.066, subdivision (a)(3), which provides that a defendant convicted under section 288 is not eligible for probation unless he or she had an honest and reasonable belief that the victim was 14 years or older. (Paz, supra, 80 Cal.App.4th at p. 298.) That provision had been expressly relied upon by the Olsen court in rejecting a mistake-of-age defense under subdivision (a). (Olsen, supra, 36 Cal.3d at p. 647.) The court in Paz also noted that other courts had refused to extend the holding in People v. Hernandez, supra, 61 Cal.2d 529 to section 288 crimes. (Paz, supra, 80 Cal.App.4th at p. 300.)
The court in Paz, supra, 80 Cal.App.4th 293, concluded, “At one time the Legislature decided that the age of 14 was the appropriate line of demarcation. After hearing the proposals and arguments in favor of and against the bill to add what ultimately became subdivision (c)(1) to section 288, the Legislature exercised its prerogative and elected to make potential felonies of lewd acts against 14- and 15-year-olds, just as such acts are felonies when committed upon children 13 and under. We therefore believe the public policy rationale of Olsen for rejecting good faith mistake of age in section 288 cases involving victims under age 14 holds true for victims of ages 14 and 15 as well — ‘to protect children against harm from amoral and unscrupulous [adults] who prey on the innocent.’” (Paz, supra, 80 Cal.App.4th at p. 298.)
We agree with the analysis and holding in Paz, supra, 80 Cal.App.4th 293. The Legislature enacted section 288, subdivision (c)(1) to protect 14- and 15-year-old children from lewd conduct committed by adults who are substantially older than the children they victimize. We therefore construe subdivision (c)(1) to extend the same protections to these children that subdivision (a) affords to younger children. Accordingly, absent an express statement by the Legislature to the contrary, mistake of age is not a defense in prosecutions under subsection (c)(1).
Defendants in this case acknowledge Paz, supra, 80 Cal.App.4th 293, but urge us to reject its holding. Defendants argue that subsequent California Supreme Court authority has “undercut Paz” either by requiring proof of guilty knowledge or permitting a mistake of fact defense in cases involving the possession of assault weapons; serving liquor to a minor; selling unregistered securities; possession of a short-barreled rifle; and child abduction by a custodial parent. Such cases, defendants argue, reveal our Supreme Court’s “intent to abide by ‘the modern trend’” requiring proof of criminal intent.
In re Jorge M. (2000) 23 Cal.4th 866, 887 [holding that “text, history and surrounding statutory context provide no compelling evidence of legislative intent to exclude all scienter from the offense defined in section 12280(b)”].
In re Jennings (2004) 34 Cal.4th 254, 280-281 [mistake of age defense available to nonlicensee serving liquor to minor when statutory scheme makes such defense available to licensee].
People v. Salas (2006) 37 Cal.4th 967, 982 [“lack of knowledge that a security is not exempt (or criminal negligence) is an affirmative defense, on which the trial court must instruct only if the defendant presents enough evidence to raise a reasonable doubt”].
People v. King (2006) 38 Cal.4th 617, 627 [“Legislature must have intended section 12020 to require proof of a defendant’s actual knowledge . . . of a short-barreled rifle’s illegal characteristic”].
People v. Neidinger (2006) 40 Cal.4th 67, 72-76 [statutory affirmative defense in § 278.7, subd. (a), that child abductor had “a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm” requires only that defendant raise a reasonable doubt].
Defendants’ reliance on this trend is misplaced. None of the cases cited by defendants involves section 288 or any analogous statute, nor do they involve the public policy concerns on which Olsen, supra, 36 Cal.3d 638, and Paz, supra, 80 Cal.App.4th 293, are founded. Further, an appellate court’s role in interpreting a statute is not to predict trends in judicial opinions, but to discern “the intent of the Legislature in enacting the law.” (In re Jennings, supra, 34 Cal.4th at p. 263.) Defendants cite, and we are aware of, no authority holding that a post-enactment trend in judicial decisions is useful in determining legislative intent in a previously enacted statute. Further still, the debate regarding whether or to what extent scienter is an element of, or lack of scienter a defense to, crimes involving sexual contact with minors is hardly novel, and it is one that has received copious attention from the courts and academic commentators over the years. (See, e.g., People v. Ratz (1896) 115 Cal. 132; People v. Hernandez (1964) 61 Cal.2d 529; Olsen, supra, 36 Cal.3d 638; People v. Tober (1966) 241 Cal.App.2d 66; People v. Toliver (1969) 270 Cal.App.2d 492; People v. Gutierrez (1978) 80 Cal.App.3d 829; People v. Peterson (1981) 126 Cal.App.3d 396; 2 LaFave, Substantive Criminal Law (2d ed. 2003) § 17.4(c), p. 650; Annotation, Mistake Or Lack Of Information As To Victim’s Age As Defense To Statutory Rape (1997) 46 A.L.R.5th 499; Carpenter, supra, 53 Am. L. Rev. 313.) Accordingly, nothing in the cases cited by defendants undercuts the reasoning or holding in Paz.
Defendants also argue that Paz is factually distinguishable because the victim in that case told the defendant she was 16 years old (Paz, supra, 80 Cal.App.4th at pp. 295, 300), whereas Melissa told Mitchell that she was 18-years old. The Paz court did rely on that aspect of the case in distinguishing Staples v. United States (1994) 511 U.S. 600 (Staples), in which the United States Supreme Court construed a federal statute prohibiting the possession of unregistered firearms to require proof of guilty knowledge, based in part on its concern that dispensing with a mens rea requirement “potentially would impose criminal sanctions on a class of persons whose mental state — ignorance of the characteristics of weapons in their possession — makes their actions entirely innocent.” (Id. at pp. 614-615.) The Paz court noted that the defendant’s conduct in that case could not be “entirely innocent,” because his sexual contact with the victim would have been a crime even if she was 16, as he believed her to be. (Paz, supra, 80 Cal.App.4th at p. 299-300.)
We do not find this factual distinction to be persuasive. The court in Paz held that the Legislature did not intend section 288, subdivision (c)(1) to permit a mistake-of-age defense because subdivision (c)(1) presents a clear mandate to protect sexually vulnerable 14- and 15-year-old children from predatory older adults. (Paz, supra, 80 Cal.App.4th at p. 298.) In so holding, the court did not rely on the fact that the victim in that case pretended to be 16 — indeed, the court’s discussion in that regard is in a separate section of the opinion. (Id. at pp. 299-300.) Rather, the Paz court discussed the defendant’s belief that the victim was 16 only to demonstrate, as the court states, that “even under the most favorable interpretation of the relevant facts,” the defendant could not avail himself of any argument based on Staples, supra, 511 U.S. 600. We therefore agree with the holding in Paz, and conclude that section (c)(1) does not permit a mistake-of-age defense, regardless of what age the victim pretended to be.
The trial court considered mistake of age to be a defense to defendant Jordan’s charge under section 266j, and resolved that issue against him. As a result, even if the trial court had erred in refusing a mistake-of-age defense under section 288, subsection (c)(1), such error would be harmless beyond a reasonable doubt with respect to defendant Jordan. Mitchell also conceded that he had expressed doubts that Melissa was as old as she said.
B. The Trial Court Did Not Abuse Its Discretion In Refusing To Dismiss Defendants’ Prior Strikes.
Defendants assert that the trial court abused its discretion in refusing to dismiss their respective prior “strike” convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We review the trial court’s decision not to strike the allegation of a prior “strike” conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) To prevail, defendants bear the burden “‘to clearly show that the sentencing decision was irrational or arbitrary.’” (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) We will not substitute our judgment for that of the trial judge, and will not reverse because we would have reached a different result. “‘[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[.]’” (Id. at p. 378.)
Section 1385, subdivision (a) authorizes a trial court to dismiss the allegation of a prior “strike” conviction “in furtherance of justice” in cases brought under the Three Strikes Law. (Romero, supra, 13 Cal.4th at pp. 529-530.) In determining whether to strike the allegation, the trial court “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 (1998) 17 Cal.4th 148, 161.)
Section 1385, subdivision (a) provides in relevant part: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”
1. Mitchell’s Prior Strike
Relying primarily on his relatively minor role in Melissa’s four-day disappearance and his comparatively sympathetic treatment of her, Mitchell argues that the trial court abused its discretion in refusing to strike his prior conviction. We disagree.
The trial court struck three of Mitchell’s four prior strikes. Even though Mitchell did not present a written Romero motion, the trial court permitted defense counsel exhaustively to review what he considered to be the mitigating factors in support of his oral request to strike the prior, even though defense counsel admitted candidly that he “always” believed and “made it abundantly clear” that the case should “be treated as a second strike case.”
Further, Mitchell was on parole at the time he committed the offense. His prior convictions, though not recent, were for serious offenses, including attempted murder, robbery and arson. According to his probation report, in 1992 Mitchell tied up a victim, stole the victim’s credit cards, and then set the victim’s house on fire while the victim was still inside. Mitchell then fled to Jamaica, and was one of America’s most wanted fugitives until he was captured, extradited and convicted. The trial court found these facts to be significant. The trial court did not abuse its discretion in refusing to strike Mitchell’s one remaining prior strike.
2. Jordan’s Prior Strike
Jordan made a written Romero motion prior to sentencing, which the trial court denied. Jordan argues that the trial court erred because it did not exercise its independent judgment in denying the Romero motion, and because Jordan “does not necessarily fall within the ‘spirit’ of the Three Strikes Law.”
Jordan contends that the following statements made by the trial court during Jordan’s sentencing hearing demonstrate that the trial court failed to exercise its independent judgment:
“[THE COURT]: . . . [T]his court is very hesitant to impose the third strike, except if a case really merits that type of determine — well, I should say that determination, which would lead to possibly a life term.
“On second strike matters, this court somewhat routinely is reluctant to strike the second strike, unless the district attorney concurs or unless I feel the district attorney is being unreasonable.
“I think your attorney . . . makes a strong case based on the facts of the murder and the period of time that’s passed.
“But I think that [the prosecutor] makes a very compelling case, because of your record and your conduct since that murder conviction. I have to say your record, and I will put it in kind terms, is not admirable.
“I agree with [the prosecutor] as well, if I was to strike that prior under the circumstance with regard to the seriousness of that prior and regard to the conduct that’s occurred, even though a lot of time has passed, I truly believe that a court of appeal, reviewing, would find that I had abused my discretion, and they would send it back to this court for sentencing consistent with their view.
“I just think it’s clear that, based on the fact that we do have . . . one of the most serious types of felonies as the strike, and then, with the conduct and the prison commitments that have intervened — and that doesn’t truly state the entire case — but I believe is sufficient for me to deny your Romero appeal.
“And so, therefore, that request will be denied.”
Contrary to defendant’s contention, we read the trial court’s remarks not as an abdication of its decision-making responsibility, but as demonstrating that the trial court exercised its discretion in a considered fashion, consistent with the limitations on its discretion imposed by law, and with the purpose of achieving substantial justice. The trial court’s remark that it is “hesitant to impose the third strike, except if a case really merits that type of . . . determination” is simply a statement that the trial court scrutinizes third-strike allegations to ensure that defendants sentenced to the resulting life terms are truly within the “spirit” of the Three Strikes Law. Its remark that it is “somewhat routinely . . . reluctant to strike the second strike, unless the district attorney concurs or unless I feel the district attorney is being unreasonable” (italics added) does not, as Jordan contends, indicate an “improper policy of deferring its discretionary decision to the prosecutor.” Rather, when read in context, the statement indicates that the trial court exercises its discretion to dismiss second strike allegations when the circumstances so warrant. The trial court’s statement that, if it dismissed Jordan’s second strike, “I truly believe that a court of appeal, reviewing, would find that I had abused my discretion,” is a recognition of the legal limitations on its discretion, not a refusal to exercise that discretion.
In any event, no matter how the trial court decides whether to dismiss prior strike allegations in other cases, the record in this case demonstrates that the trial court “balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law.” (People v. Carmony, supra, 33 Cal.4th at p. 376.) Jordan’s prior strike was a conviction for second degree murder from 1977. The trial court recognized that Jordan’s prior strike conviction was remote in time, and that Jordan pled guilty to the second degree murder charge. As the trial court also recognized, however, Jordan’s prior strike conviction was serious: he murdered an innocent teenage girl while trying to take revenge against rival gang members. As the trial court further recognized, since Jordan was discharged on the murder conviction in 1984, he had been convicted of at least eight drug-related felonies, at least four misdemeanors, and had only recently been discharged from parole. The trial court did not abuse its discretion in refusing to dismiss Jordan’s prior strike.
C. The Trial Court Did Not Err By Imposing Upper Term Sentences.
1. The Upper Term Sentences Did Not Violate Defendants’ Sixth Amendment Rights
Defendants waived their rights to a jury trial. They do not contend that their jury waivers were invalid. Defendants nevertheless argue that the trial court violated their Sixth Amendment rights when it sentenced them to upper-term sentences based on aggravating factors found by a preponderance of the evidence, rather than beyond a reasonable doubt. (Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, 863 (Cunningham) [“any fact that exposes a defendant to a greater potential sentence must be . . . established beyond a reasonable doubt, not merely by a preponderance of the evidence”]; People v. Black (2007) 41 Cal.4th 799, 809 (Black II) [same].) We perceive no error.
In Black II, supra, 41 Cal.4th 799, the California Supreme Court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) Further, “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements . . . the upper term sentence is the ‘statutory maximum.’” (Ibid.)
The Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions” (Black II, supra, 41 Cal.4th at p. 819), including “whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ . . . .” (Id. at pp. 819-820; see also Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) Furthermore, although California law requires proof beyond a reasonable doubt of alleged prior convictions used to justify a recidivist sentence (see, e.g., People v. Bowden (2002) 102 Cal.App.4th 387, 392-393), facts relating to prior convictions found to be aggravating circumstances for purposes of imposing an upper-term sentence are not subject to proof beyond a reasonable doubt, but may be found by a preponderance of the evidence. (Black II, supra, 41 Cal.4th at p. 820, fn. 9.) Accordingly, “‘imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.’” (Id. at p. 824.)
In his first supplemental brief on the Sixth Amendment issues, Mitchell conceded that he was on parole when he committed his crime in this case, and that he had served prior prison terms. Both of these facts are circumstances in aggravation sufficient to support an upper-term sentence. (Cal. Rules of Court, rule 4.421(b)(3)-(4).) Neither fact was used to support a statutory enhancement. Furthermore, the trial court found true the special allegations that Mitchell had four prior strike convictions, but struck three of those strikes for purposes of sentencing under the Three Strikes Law. Defendant thus had “numerous” prior convictions within the meaning of rule 4.421(b)(2). (Black II, supra, 41 Cal.4th at pp. 818-820 [three prior convictions “numerous”].) Contrary to Mitchell’s contention that the trial court relied only on his unsatisfactory performance on parole, the trial court explicitly relied on Mitchell’s “parole status” and his “prior record” in imposing the upper-term sentence. Mitchell was thus eligible for an upper-term sentence based on aggravating factors that were not within the scope of his right to a jury trial, as set forth in Cunningham, supra, 127 S.Ct. 856. The trial court did not violate Mitchell’s Sixth Amendment rights by finding additional aggravating factors or weighing those factors against the “scant” circumstances in mitigation.
All rule references are to the California Rules of Court. Rule 4.421 was amended effective January 1, 2007 and May 23, 2007, but not in any respect material to this case.
As noted above, Jordan had been convicted of eight drug-related felonies and at least four misdemeanors since he was discharged on his murder conviction in 1984. None of those prior convictions formed the basis for a sentence enhancement or a recidivist sentence under the Three Strikes Law. In arguing to the trial court that the upper-term sentence was justified, the prosecutor argued, “When you look at the priors that he [Jordan] does have, I don’t see how we could even stay at mid term. It would have to be the high term.” In pronouncing sentence, the trial referred to the aggravating circumstance in rule 4.421(b)(2) regarding “if a prior record of crimes are numerous or of increasing seriousness.” When imposing the upper term, the trial court stated, “The court feels, as Mr. Dordulian [the prosecutor] laid out in his statement . . ., that the high term is appropriate in this case . . . .” Contrary to Jordan’s contention, therefore, it appears that the trial court relied on rule 4.421(b)(2) in imposing the upper term. Accordingly, although the trial court relied on other factors as well, Jordan qualified for an upper-term sentence based on a recidivist factor not within the scope of his right to a jury trial, as set forth in Cunningham, supra, 127 S.Ct. 856. (See Black II, supra, 41 Cal.4th at pp. 819-820.) The trial court therefore did not violate defendants’ Sixth Amendment rights by imposing upper-term sentences.
2. The Trial Court Did Not Abuse Its Discretion In Choosing The Upper Term Sentences
Finally, defendants argue that, even if their upper-term sentences were not unconstitutional, the trial court abused its discretion in selecting the upper term. We review the trial court’s sentencing decision for a clear abuse of discretion. (People v. Giminez (1975) 14 Cal.3d 68, 72.) “[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.) “Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms” in sentencing a defendant. (People v. Roe (1983) 148 Cal.App.3d 112, 119.)
Defendants argue that the trial court erroneously believed that Melissa’s role as a willing participant in the crimes was not a mitigating factor, contrary to rule 4.423(a)(2). In sentencing Mitchell, the trial court stated: “In looking over facts relating to the crime — [¶] there could be some roundabout argument that in some way the victim — and it’s hard for the court to say this with a girl of tender years and with her father seated in court and me being the father of a daughter, too, and [defense counsel] as well — that the victim wasn’t in some way responsible for some of the problems she caused here, whether that’s really a factor in mitigation.” (Italics added.) Defendants argue that the italicized language “indicates [the trial court’s] belief that” Melissa’s conduct was not a mitigating factor.
Defendants’ argument misconstrues the trial court’s remark, which was made orally during the sentencing proceeding. The trial court was not disregarding rule 4.423(a)(2); indeed, the trial court explicitly referred to rule 4.423 and apparently had the text of the rule before it as it pronounced sentence. Reading the remark in context, it appears the trial court meant, “There could be some roundabout argument whether, in this case, the victim’s conduct is a mitigating factor.” The trial court was thus expressing doubt whether Melissa reasonably could be considered “an initiator” or “willing participant” in the crime, given that she was only fourteen and generally acknowledged by the court and the parties to be immature and to suffer from some mental deficit. Based on the whole record, the trial court did not abuse its discretion by refusing to consider, or by according little weight, to that factor.
Relying on People v. Myers (1983) 148 Cal.App.3d 699 (Myers), defendants argue that the trial court believed that it was required to impose the upper-term sentences if the aggravating factors outweighed the mitigating factors. In Myers, the trial court stated while sentencing the defendant that “if the aggravating circumstances outweigh the mitigating circumstances, the law says I have to send him [to prison for the upper term].” (Id. at p. 702.) The court of appeal reversed, holding that a trial court retained discretion to choose the middle term even if aggravating circumstances outweighed mitigating circumstances (id. at pp. 703-704), and that “there is nothing in the record to indicate that at th[e] time [the trial court pronounced sentence,] it did not continue to incorrectly believe the law mandated it exercise its discretion only to impose the upper term, leaving it no discretion to consider and choose the middle term.” (Id. at p. 704.)
We do not find Myers, supra, 148 Cal.App.3d 699, to be determinative. In this case, when sentencing Mitchell, the trial court stated: “Mr. Mitchell, it’s going to be the judgment of the court in your case that the scant reference that I have made to the mitigating factors — and when I say this, two or three factors can be outweighed by one significant factor, so it’s not a question of numbers. It’s a question of their weight, proportional weight — it’s the judgment of this court, because of your parole status, your prior record, that the court cannot say that the mitigating factors either equal or outweigh the aggravating factors. [¶] Therefore, the court, on the conviction for count number 7 . . . will select the three-year term, which is the high term for this offense.”
In context, the trial court’s remarks do not reflect misunderstanding of its authority under the sentencing rules. Rather, we interpret the trial court’s statement as indicating that the trial court found that the circumstances, on evaluation of the record as a whole, made an upper-term sentence appropriate. The record here supports that determination. Contrary to defendants’ claim, the record reveals that the court weighed and considered the relevant factors in sentencing defendants.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.
“[¶] . . . [¶]
“(c)(1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.”