Opinion
H036396
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS090924)
Defendant Antonio Rodriguez was convicted by a jury of two counts of lewd and lascivious acts upon a child (Pen. Code, § 288, subd. (a)). The jury also found true the allegations that these offenses were committed against multiple victims (§ 1203.066, subd. (a)(7), § 667.61, former subd. (e)(5) (now subd. (e)(4)). In a bifurcated proceeding, the court found that Rodriguez had a prior conviction for committing a lewd act on a child (§ 667.61, subd. (d)(1)), was a habitual sexual offender (§ 667.71), had a prior strike (§ 1170.12) and had two prior serious felony convictions (§ 667, subd. (a)(1)). Rodriguez was sentenced to a total term of 170 years to life.
Further unspecified statutory references are to the Penal Code.
On appeal, Rodriguez argues the trial court: (1) erred in admitting evidence of his prior sex offense under Evidence Code sections 1108 and 352; (2) erred by instructing the jury pursuant to CALCRIM No. 1191 as that instruction is constitutionally defective; (3) abused its discretion in denying his Romero motion; (4) erred in imposing and staying two tripled 25-year-to-life terms pursuant to the prior lewd act conviction special circumstance of the One Strike law (§ 667.61, subd. (d)(1)); and (5) erred in imposing and staying two 15-year-to-life terms pursuant to the multiple victim special circumstance of the One Strike law (§ 667.61, former subd. (e)(5)). Finally, Rodriguez contends that his sentence of 170 years to life constitutes cruel and unusual punishment.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The People concede that the trial court erred in imposing and staying two 15-year-to-life terms under the multiple victim special circumstance of the One Strike law, and we agree that this claim has merit. We reject Rodriguez's remaining arguments. Accordingly, we shall modify the judgment and, as modified, affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution case
1. The victims' testimony
Victim 1, who was nine years old at the time of trial, met Rodriguez at the church she attended with her mother and twin sister, victim 2. When victim 1 was seven years old, she would sometimes go to Rodriguez's house to watch "[k]id movies." While in the living room, Rodriguez touched victim 1 "in the wrong places" and rubbed her "coochie" with his hand. He told victim 1, "You are wet."
Victim 2 testified that, on Thanksgiving that year, Rodriguez touched her "private" in the living room at her mother's friend's house. Victim 2 was at the house with her mother and victim 1. While she was on the couch watching television, holding a pillow in her lap, Rodriguez put his hand under the pillow and touched her underneath her underwear.
A month later, around Christmas, victim 1 spent the night at Rodriguez's house with her mother and her sister. When her mother and sister were asleep, Rodriguez took victim 1's hand and made her rub his "weenie." He moved her hand up and down about five times, and she described it as feeling big, smooth and squishy. Victim 1 said she told her mother about the incidents about two days after they occurred.
2. Mother's testimony
The victims' mother admitted she had been convicted in 2004 for possession of stolen property and child endangerment. As a result of those criminal charges, in 2005 she lost custody of victim 1 and victim 2 for a period of 18 months. She completed an out-patient program and began attending the "Celebrate Recovery" program at a church in Salinas as part of her recovery process. It was at that church she met Rodriguez, who was also in recovery, in 2006. The mother heard rumors that Rodriguez was on the Megan's Law Website, but another woman at the church told her it was probably for relieving himself in public. The mother trusted Rodriguez and did not investigate further because he was a "brother in Christ." The mother said that Rodriguez wanted to date her, although she was not interested, and the program also had a rule against fraternization. Rodriguez would sometimes walk her to her car and bring gifts for her children to the meetings.
On one occasion about a month before Thanksgiving, she left her daughters at Rodriguez's house for several hours for him to babysit. When she returned, her daughters were both naked, and Rodriguez told her that they had wanted to take a bath. The mother did not report this incident to the police.
She recalled visiting Rodriguez's house with her twin daughters on two occasions in 2008. Around Christmas that year, she and her daughters went to his house to watch movies and they ended up sleeping over. She slept on the floor, with Rodriguez next to her, while the girls slept on the couch.
The mother subsequently recalled that she started off sleeping on the couch with her daughters, then moved to the floor.
Two days later, her daughters told her something had happened. Victim 1 told her Rodriguez had touched her on Thanksgiving while they were at Rodriguez's sister's house. Victim 2 also said that Rodriguez had touched her. The mother "went into shock," and did not contact police right away. She spoke to the ministry leader, who was also Rodriguez's sponsor, about how to handle the situation. The mother had "just gone through a lot with [her] children[, and was] not ready to go through this again."
After being assured that everything would be all right, the mother contacted the police, who took a report on January 16, 2009. Salinas Police Officer Craig Fairbanks arranged for the mother to place a recorded pretext call to Rodriguez.
3. Pretext phone call
The jury heard the recorded pretext call, and a transcript of that recording was admitted into evidence. In that call, the mother asked Rodriguez several times to explain why he touched her daughters. Rodriguez never admitted doing so, and said it sounded as if the mother was trying to "set [him] up." He said he would be going to another church in the future because seeing the mother "would just create more problems." Rodriguez said he wanted to have his sponsor with him if the mother wanted to talk more because he did not trust her. He agreed with the mother that her daughters were innocent and "really smart." Rodriguez told the mother nothing he could say to her would satisfy her. He said he did not think she should make a report to the police, but she should tell her daughters "[n]ot to give up on God, not to stop going to church and, . . . they are innocent." When the mother asked if she could tell the girls Rodriguez would not touch them again and that he was sorry, he said, "Of course." He then added "[Y]ou can say that, you can (inaudible) whatever else you wanna . . . okay?"
4. Prior victim's testimony
The prior victim testified that on one occasion when she was four or five years old, her aunt was watching her, and for some reason, they ended up at Rodriguez's mother's house. While she was there, Rodriguez put something inside her vagina. He told her not to tell anyone, and said her mother would not love her anymore if she did. After watching a Winnie the Pooh cartoon about not talking to strangers, she told her babysitter what had happened. The prior victim talked to police and testified against Rodriguez in court when she was six or seven. In that proceeding, Rodriguez was charged with committing a lewd act on a child under the age of 14 (§ 288, subd. (a)) on December 23, 1987. It was stipulated that Rodriguez pleaded no contest to that charge.
B. Defense case
Rainia Ishak, who also attended Celebrate Recovery, had Rodriguez, the mother, and some other friends over for Thanksgiving dinner in November 2008. The mother brought her daughters, victim 1 and victim 2, as well. Ishak's house had an open floor plan and one could see into the kitchen from the living room, and vice versa. When the mother arrived with her children, Rodriguez went to greet her. Ishak noticed the mother rolled her eyes and had a "[g]et the hell away from me" look on her face. Throughout the day, Ishak saw Rodriguez with the two girls, and they were friendly towards him, exchanging lots of hugs. She saw the girls sitting on his lap in the living room, but neither of them appeared uncomfortable in any way.
Janet Jimenez, the defense investigator, interviewed the mother and the two victims. Jimenez talked to each of the victims separately, though the mother was present during each interview while the other victim waited in a separate room. Victim 1 told Jimenez that Rodriguez only touched her on one occasion, at his house, while they were sitting on the couch in his living room. Victim 1 did not tell Jimenez that Rodriguez ever took her hand and put it on his penis.
Victim 2 told Jimenez that Rodriguez touched her between her legs while she was sitting on his lap in the living room of Ishak's house on Thanksgiving. Victim 2 said she had a pillow on her lap at the time and Rodriguez reached under her skirt and underwear and rubbed his hand "down the middle of her legs one time."
Jimenez said the mother told her there were rumors at her church that Rodriguez was a "pedophile and a weirdo," but she ignored those rumors since her church teaches her not to heed gossip. The mother said she and her daughters had gone out to dinner with Rodriguez three or four times, he had visited at her house about six times and she visited his home about three times. The mother did not tell Jimenez about the incident where she left her daughters with Rodriguez to babysit and came back to find them naked.
C. Verdict and sentencing
The jury found Rodriguez guilty of two counts of lewd and lascivious acts upon a child (§ 288, subd. (a)), but the court declared a mistrial as to another count of committing a lewd act (the incident where Rodriguez allegedly had victim 1 rub his penis) when the jury was unable to reach a verdict on that charge. The jury found true the allegations that the offenses were committed against multiple victims (§ 1203.066, subd. (a)(7), § 667.61, former subd. (e)(5) (now subd. (e)(4)).
In a bifurcated proceeding, the court found true the allegations that Rodriguez had a prior conviction for committing a lewd act on a child (§ 667.61, subd. (d)(1)), was a habitual sexual offender (§ 667.71), and had a prior strike (§ 1170.12) as well as two prior serious felony convictions (§ 667, subd. (a)(1)).
After denying Rodriguez's Romero motion, the trial court sentenced Rodriguez to an indeterminate term of 150 years to life, plus a determinate term of 20 years, as follows: consecutive terms of 25 years to life on each of the two counts, tripled under the Three Strikes law to 75 years to life, with two consecutive 10 year terms on each count pursuant to the prior conviction enhancements (§ 667, subd. (a)(1)). Under section 667.61, subdivision (d)(1), the court imposed and stayed two terms of 25 years to life, each tripled under the Three Strikes law, plus two consecutive 10 year terms for the prior conviction enhancements (§ 667, subd. (a)(1)). Finally, pursuant to section 667.61, former subdivision (e)(5), the court also imposed and stayed two indeterminate terms of 15 years to life, again tripled under the Three Strikes law, plus two consecutive 10 year terms for the prior conviction enhancements (§ 667, subd. (a)(1)).
II. DISCUSSION
A. Evidence Code section 1108 evidence
Rodriguez makes two arguments with respect to the evidence introduced through the testimony of the prior victim pursuant to Evidence Code section 1108. His first argument is that the evidence should have been excluded because Evidence Code section 1108 is unconstitutional. His second argument is that the trial court should have excluded the evidence under Evidence Code section 352. We reject both arguments.
1. Relevant proceedings
Prior to trial, the prosecutor moved to introduce evidence of Rodriguez's 1988 conviction of committing a lewd act on a child under the age of 14 pursuant to Evidence Code section 1108. Specifically, the prosecution sought to present the prior victim's testimony and evidence of Rodriguez's conviction. Defense counsel asked the court to exclude the evidence in its entirety on the grounds that there was very little information available about the offense other than the prior victim's testimony from the preliminary hearing, and thus effective cross-examination would be impossible.
The trial court first noted that the evidence would not result in an undue consumption of time as it would take approximately 30 minutes to present, in a case that both sides estimated would require one and a half to two weeks to try. The court also indicated that the evidence did not involve allegations of force, or actual intercourse with the prior victim, which might make the jury "overly sensitive." With respect to the remoteness of the prior conduct, the trial court found that time period was tolled somewhat since Rodriguez served a prison term for that offense and that the prior uncharged conduct was thus not "overly remote." Because the jury would be told that Rodriguez was convicted on the prior charge, the trial court believed the jury would not be predisposed to find him guilty in the current trial in order to "punish" him for that prior offense. Based on these considerations, the trial court found that the probative value of the evidence outweighed any undue prejudice and ruled the prosecution could introduce the prior uncharged conduct under Evidence Code section 1108.
2. Analysis
a. Evidence Code section 1108 is constitutional
Rodriguez contends that Evidence Code section 1108 violates constitutional due process principles, though he acknowledges that the Supreme Court has rejected this contention in People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta). He raises the point simply to preserve the claim for review. As we are bound by the decision in Falsetta, we also reject the argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
b. No abuse of discretion in allowing the prior victim to testify
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally prohibiting character evidence such as past conduct to prove that defendant committed the offense in question], if the evidence is not inadmissible pursuant to Section 352." Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Evidence Code section 1108 creates an exception in sex-offense cases to the prohibition in Evidence Code section 1101 against the use of character evidence to prove the defendant has a predisposition or propensity to commit the types of crime with which he is charged. (Falsetta, supra, 21 Cal.4th at p. 911.) "By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations." (Id. at p. 915.) Consequently, the statute permits the trier of fact to consider uncharged sexual offenses " ' "as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense." ' " (Id. at p. 912.) "With the enactment of section 1108, the Legislature 'declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the [complaining] witness.' " (People v. Soto (1998) 64 Cal.App.4th 966, 983.) Indeed, "the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because ' "it has too much." ' " (People v. Branch (2001) 91 Cal.App.4th 274, 283.)
"By reason of [Evidence Code] section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352. 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. [Citations.] [¶] . . . [T]he probative value of 'other crimes' evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] . . . [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term." (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Rodriguez contends that the trial court abused its discretion in admitting the evidence of his prior conviction. According to Rodriguez, the uncharged offense was remote as it concerned conduct that took place 21 years before the current incidents. The prior incident was also more inflammatory, since the prior victim was four or five years old, younger than victim 1 and victim 2, and the conduct was more severe as it involved touching and penetration with a foreign object. Furthermore, the current offenses were also dissimilar because victim 1 and victim 2 were touched in a public area of a home, with other people present, whereas the prior victim was molested when she was isolated in his bedroom. Also there was no evidence he threatened the victims in the current case, whereas he told the prior victim her mother would not love her anymore if she told anyone.
It is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) The trial court's exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.) "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) "[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.)
Rodriguez fails to carry his burden on appeal. Evidence Code section 1108 contains no predicate requirement that there be a high degree of similarity between the prior and current offenses as Rodriguez suggests. "It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." (People v. Frazier (2001) 89 Cal.App.4th 30, 41.) The Legislature deliberately chose not to add a similarity requirement to Evidence Code section 1108 because doing so would tend to reintroduce the strictures of prior law which the statute was designed to overcome " ' "and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not 'specialists,' and commit a variety of offenses which differ in specific character." ' " (People v. Soto, supra, 64 Cal.App.4th at p. 984, quoting Historical Note, 29B pt. 3, West's Ann. Evid. Code (1998 pocket supp.) foll. § 1108, pp. 31-32.) Thus, similarity of the crimes is a consideration in the Evidence Code section 352 analysis required by Evidence Code section 1108, inasmuch as it is one of many factors for the trial court to consider when the evidence is offered pursuant to that section.
We also observe that, though the remoteness of a prior offense is an appropriate factor in weighing probative value against potential prejudice, there is no bright-line rule for determining when remoteness eliminates the probative value of a prior offense. (See, e.g., People v. Branch, supra, 91 Cal.App.4th at p. 285 [30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20 years]; People v. Soto, supra, 64 Cal.App.4th at pp. 991-992 [more than 20 years]; but see People v. Harris (1998) 60 Cal.App.4th 727, 739 (Harris)[prior crime remote--23 years--but also inflammatory, irrelevant, likely to confuse and distract the jury].) We reject Rodriguez's unspoken (and unsupported) contention that one's past criminal conduct has no relevance in revealing one's present propensities, especially in the area of sexual offenses. Although the court in Harris found that the trial court had abused its discretion in admitting evidence of a 23-year-old burglary conviction that involved a sexual assault, the remoteness of that prior offense was but one of several reasons for that holding; in addition, the prior offense evidence was extremely "inflammatory and nearly irrelevant and likely to confuse the jury and distract it from the consideration of the charged offenses." (Harris, supra, at p. 741.)
The admissibility of prior-sex-offense evidence is a highly subjective, fact-specific question. The record demonstrates that the trial court applied the factors outlined by the Falsetta court, and we will not second-guess its balancing of those factors simply because they could conceivably be construed to favor Rodriguez.
B. CALCRIM No. 1191
The trial court instructed the jury in the language of CALCRIM No. 1191, as follows: "The People presented evidence that the defendant committed the crime of lewd or lascivious acts on a child under 14 that was not charged in this case. The crime is defined for you in these instructions. The Court has already defined the crime or [sic]lascivious act on a child under the age of 14. You may consider the evidence of the uncharged act that was presented in this case only if the People have proved by [a] preponderance of the evidence that the defendant, in fact, committed the uncharged offense. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence the defendant was disposed or inclined to commit sexual offense[s], and based on that also, that the defendant was likely to commit the crimes of lewd or lascivious act on a child under the age of 14 in Counts 1, 2, and 4 as charged here. [¶] If you conclude that the defendant committed the uncharged offense that conclusion is only one factor to consider along with all the other evidence. It is not such to prove the the it was guilty but one charge[sic]."
The written instruction provided to the jury did not contain the errors and omissions found in the transcribed oral instruction, the last sentence of which is, frankly, unintelligible. The written instruction concludes with the following two sentences: "It is not sufficient by itself to prove that the defendant is guilty of the crimes charged. The People must still prove each charge beyond a reasonable doubt."
Rodriguez contends this instruction was improper because, by inviting the jury to find the uncharged offense true by a preponderance of the evidence (rather than beyond a reasonable doubt), it conflicted with the reasonable doubt instructions. The jury may have convicted Rodriguez here based upon the lesser standard of proof or based solely upon finding that he had committed the uncharged crime.
The California Supreme Court rejected the same arguments in connection with the 1999 version of CALJIC No. 2.50.01, which was substantially similar to CALCRIM No. 1191. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 (Reliford).)In Reliford, the court held, "We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense . . . . The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty 'beyond a reasonable doubt.' [Citations.] Any other reading would have rendered the reference to reasonable doubt a nullity." (Id. at p. 1016.)
Reliford also held that the instruction did not allow the jury to rest a conviction solely on evidence of the uncharged offenses. To the contrary, the instruction specifically provided that if the jury found by a preponderance of the evidence that the defendant committed the uncharged offense, " 'that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.' " (Reliford, supra, 29 Cal.4th at p. 1013.) These instructions, the court concluded, "could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct." (Ibid.)
Relying upon Reliford, People v. Cromp (2007) 153 Cal.App.4th 476 (Cromp),rejected a due process challenge to CALCRIM No. 1191. Although CALCRIM No. 1191 is written in plainer language, Cromp held that it was substantially identical to CALJIC No. 2.50.01: "[T]here is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendant's contention that the instruction violated his due process rights." (Cromp, supra, at p. 480.)
The 1999 version approved by Reliford, supra, 29 Cal.4th 1007, and the version of CALCRIM No. 1191 given here, both include the requisite admonition. Accordingly, we must reject the constitutional challenge to CALCRIM No. 1191. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455.)
C. Romero motion
The trial court denied Rodriguez's motion to dismiss both his two prior strike convictions: (1) his 1983 conviction for first degree burglary (§ 459) and (2) his 1988 conviction for lewd or lascivious acts on a child under 14 (§ 288, subd. (a)). On appeal, Rodriguez challenges only the court's refusal to dismiss his 1983 strike.
1. Relevant facts and procedure
At sentencing, the trial court acknowledged the prior strikes were committed more than 20 years ago, but said it was taking into account Rodriguez's conduct "between the commission of the strike and the current offenses." Specifically, it noted Rodriguez was convicted of first degree burglary in 1983, subsequently convicted of another felony in 1986 for assault with a deadly weapon (§ 245, subd. (a)), though that conviction was not charged as a prior strike, convicted of the second strike offense in 1988, and convicted of "a few misdemeanor offenses" thereafter. The court continued, the "nature of the current offenses are increasing in seriousness in the sense [t]hat there's two, 288 convictions, and they were--and the Court feels that the nature and circumstances of the current offenses are extremely serious, and they involve two females that were seven years old. The Court would note that the . . . prior offense for which Mr. Rodriguez was convicted involved a female that was five years old."
The trial court mistakenly stated that Rodriguez's prior conviction for violating section 288, subdivision (a) occurred in 1986. The lewd and lascivious conduct took place in December 1986, but Rodriguez was convicted of that offense in March 1988.
The trial court, after noting its consideration of Rodriguez's background, character, age and prospects, as well as the factors in aggravation noted in the probation report, i.e., the offenses demonstrated a high degree of callousness; involved planning and sophistication and an abuse of trust; and the conduct was violent and increasing in seriousness, denied the Romero motion.
2. Standard of review
A defendant has the right to seek review of a trial court's decision not to strike a prior conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The trial court's decision is reviewed under the abuse of discretion standard, and the burden on defendant is to show that the court's decision was " ' "irrational or arbitrary." ' " (Ibid.) In reviewing a ruling on a Romero motion, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)"[A]n appellant who seeks reversal must demonstrate 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. Where 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." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
3. The trial court acted within its discretion in denying the motion
Rodriguez has not established that the trial court abused its discretion in failing to strike his prior conviction in 1983 for purposes of the Three Strikes law. As required, the trial court carefully balanced the factors of Rodriguez's background, character and prospects against his criminal history, and the nature of the strike priors. (Williams, supra, 17 Cal.4th at p. 161.) We find no abuse of discretion.
D. The trial court properly imposed and stayed sentence under section 667.61, subdivision (d)(1)
Rodriguez argues the trial court erred by imposing and staying two indeterminate 75 year to life sentences under the One Strike law based on his prior section 288, subdivision (a) conviction since it had already imposed sentence under the habitual sex offender law (§ 667.71). He contends that those sentences should have been stricken since the One Strike law and the habitual offender law are alternative, not cumulative, sentencing schemes, citing People v. Snow (2003) 105 Cal.App.4th 271 (Snow).
There is a split of authority among the Courts of Appeal on the procedure to be adopted when a defendant may be sentenced under both the One Strike law and the habitual sexual offender law. In Snow, Division One of the Fourth District Court of Appeal held "[t]he sentencing court in its reasonable discretion, with reasons stated on the record, must choose which of the section 667.61 or section 667.71 sentencing schemes is to be imposed [and] [t]he sentencing scheme not imposed is to be dismissed." (Snow, supra, 105 Cal.App.4th at p. 283, italics added.)
Taking a contrary view, in People v. Lopez (2004) 119 Cal.App.4th 355 (Lopez),Division Two of the Fourth District Court of Appeal rejected the reasoning of Snow, and held that a defendant was not entitled to the striking of his sentence under the one strike law where he had been sentenced to a lengthier sentence under the habitual sexual offender law. (Lopez, supra, at pp. 358, 361-364.)
The rationale set forth in Lopez has also been adopted by the First District Court of Appeal. (See People v. McQueen (2008) 160 Cal.App.4th 27.)
In Snow, the defendant was convicted by a jury of one count of violating section 288, subdivision (a). Following a bench trial, the court found the defendant had several prior convictions which made him eligible for sentencing under the One Strike law, the Three Strikes law and as a habitual sexual offender. (Snow, supra, 105 Cal.App.4th at p. 274.) The trial court sentenced Snow to 25 years to life under the One Strike law, tripled to 75 years under the Three Strikes law. (Ibid.) Pursuant to section 654, however, the court stayed execution of a separate 25-year-to-life sentence under the habitual sexual offender law. (Snow, supra, at p. 274.) On appeal, the Snow court concluded that a trial court is "precluded from sentencing [a defendant] under both the one strike and habitual sex offender laws" and therefore struck the sentence imposed by the trial court under the habitual offender law. (Id. at p. 281.)
The Snow court's holding was based principally on its conclusion that the One Strike law and the habitual sex offender law provide alternative, rather than cumulative, sentencing schemes and thus section 654 does not apply. Consequently, the trial court is required to exercise its discretion, "choose one of the sentencing schemes and then must strike or dismiss, rather than stay, the sentence under the other." (Snow, supra, 105 Cal.App.4th at p. 283.)
In Lopez, a jury found the defendant guilty of, among other crimes, two counts of lewd conduct in violation of section 288, subdivision (a). Lopez admitted having suffered prior convictions which brought him within the scope of the One Strike law, the Three Strikes law and the habitual sex offender law. (Lopez, supra, 119 Cal.App.4th at p. 358.) Lopez was sentenced on the section 288 counts to 25 years to life under the habitual sexual offender law, doubled to 50 years under the Three Strikes law. (Lopez, supra, at p. 359.) On appeal, Lopez, citing Snow, argued that the trial court should have dismissed or struck the true finding on the One Strike special allegation. (Lopez, supra, at pp. 358-359.)
The court examined the One Strike law and habitual sexual offender law, noting that "[b]oth . . . are alternative sentencing schemes for specified sexual offenses, including--as here--nonforcible lewd conduct with a child under 14. (Pen. Code, §§ 667.61, subd. (c)(7), 667.71, subd. (c)(4).) The habitual sexual offender law provides for a sentence of 25 years to life when the defendant has previously been convicted of a specified sexual offense." (Lopez, supra, 119 Cal.App.4th at p. 360.) Sentences under the One Strike law, however, are either 15 years to life or 25 years to life, depending on the special circumstances present in a particular case. (Ibid.) However, the One Strike law also contains certain requirements: First, the special circumstances used to invoke the One Strike law must be used to impose the applicable term " 'unless another law provides for a greater penalty.' " (Id. at p. 361, citing § 667.61, subd. (f).) Second, the trial court is expressly precluded from striking any circumstances specified in section 667.61, subdivisions (d) or (e). (§ 667.61, subd. (f).) The court reasoned that the habitual sexual offender law provided for a greater penalty in this case: "Thus, the trial court could and did sentence defendant pursuant to the habitual sexual offender law; the true finding under the one strike law did not require it to do otherwise. There is no reason to strike this finding." (Lopez, supra, at p. 362.)
While the Lopez court agreed with Snow that the two alternative sentencing schemes "are analogous to two alternative enhancements," it disagreed that the correct procedure is to strike the unused alternative. (Lopez, supra, 119 Cal.App.4th at p. 366.) Rather, the trial court should "impose a sentence on the barred enhancement, but then stay execution of that sentence" under the authority of California Rules of Court, rule 4.447 (rule 4.447). (Lopez, supra, at p. 364.) The Lopez court found that a stay under rule 4.447 is analogous to one issued under section 654. "In both situations, the stay has no express statutory basis. It is implied, so that a defendant who is subject to one of two alternative punishments will not be wrongly subjected to the other; if, however, one of the two punishments is invalidated, the defendant will still be subject to the remaining one." (Lopez, supra, at p. 365.)
Rule 4.447 provides: "No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant's service of the portion of the sentence not stayed."
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We are persuaded by the reasoning in Lopez. The appropriate procedure to be followed when both the One Strike law and the habitual sexual offender law are implicated is to impose a sentence under both, but stay one of those sentences pursuant to rule 4.447. The trial court correctly imposed and stayed Rodriguez's alternative sentence under the One Strike law.
E. Trial court erred in imposing 15 year to life terms under section 667.61, subdivision (b)
Pursuant to section 667.61, subdivision (b), the trial court also imposed and stayed terms of 15 years to life, tripled to 45 years to life under the Three Strikes law, on the two counts of violating section 288, subdivision (a). Rodriguez contends this was improper because the trial court imposed a sentence for these same offenses under the more punitive section 667.61, subdivision (a). The People concede the point.
We agree. Section 667.61, subdivision (b) provides: "Except as provided in subdivision (a), (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life." By its very terms, the sentence provided in subdivision (b) cannot be imposed when the greater punishment set forth in subdivision (a) applies. Since Rodriguez was sentenced, for the same conduct, under the more punitive terms of section 667.61, subdivision (a), he cannot be subjected to an additional lesser sentence under section 667.61, subdivision (b).
F. Rodriguez's sentence is not "cruel and unusual punishment"
The Attorney General maintains that Rodriguez's failure to raise a constitutional challenge to his sentence in the trial court forfeits the issue on appeal because such a challenge is fact specific and must be raised below before it can be asserted on appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) Assuming without deciding the claim was not forfeited, we find it has no merit.
Both the federal and state Constitutions proscribe cruel and unusual punishment by prohibiting punishment that is grossly disproportionate to the severity of the offense. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Harmelin v. Michigan (1991) 501 U.S. 957, 1001; People v. Marshall (1990) 50 Cal.3d 907, 938.) The United States Supreme Court has expressly found that California's three strikes law does not violate the Eighth Amendment in Ewing v. California (2003) 538 U.S. 11 (Ewing).The Supreme Court explained that in enacting the three strikes law, the California Legislature made a judgment "that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." (Id. at p. 25.) In addressing the gravity of the offense compared to the harshness of the penalty, the Supreme Court emphasized that the gravity of the defendant's offense included not only his current felony, but also his history of felony recidivism. (Id. at p. 29.)
In analyzing the separate prohibition against cruel or unusual punishments provided in the California Constitution, the California Supreme Court has said that a sentence will violate the state Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.)
Rodriguez argues that his punishment "is grossly and unnecessarily excessive," apparently because his sentence of 170 years to life is far in excess of a person's usual lifespan. He claims that such a sentence cannot possibly contribute to "either a utilitarian or retributive theory of punishment."
We disagree that Rodriguez's sentence constitutes cruel and unusual punishment, given his criminal history, which now includes three convictions for committing lewd or lascivious conduct on a child under 14. His first victim was five years old, the most recent victims only seven, and the circumstances show that in each case, he took advantage of a position of trust to accomplish his intent. Accordingly, we cannot view his current punishment as a recidivist under the Three Strikes law as grossly disproportionate to his crimes. We thus conclude that his sentence does not constitute cruel and unusual punishment under either the federal or state Constitutions.
III. DISPOSITION
The judgment is modified by striking the stayed 15 year to life terms imposed on counts 1 and 4 pursuant to Penal Code section 667.61, subdivision (b). The superior court is ordered to prepare an amended abstract of judgment incorporating this change and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
The judgment, as modified, is affirmed.
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Premo, J.
WE CONCUR:
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Rushing, P.J.
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Elia, J.