P. v. Green

Filed 10/20/06 P. v. Green CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Paul Robert Green pleaded no contest to one count of annoying or molesting a child (Pen. Code, § 647.6, subd. (c)(2)).^[1] Defendant further admitted suffering a prior juvenile conviction under section 288, subdivision (a), and admitted a prior strike conviction under section 1170.12, subdivision (c)(1).^[2] The court denied probation and denied defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to vacate a prior serious or violent felony conviction under the “three strikes” law. Defendant appeals his four-year state prison sentence, arguing (1) he was denied due process at his sentencing hearing; (2) the trial court abused its discretion in denying his Romero motion because it relied upon improper information; and (3) he received ineffective assistance of counsel. We disagree and affirm the trial court’s sentence.

Factual Background^[3]

On the evening of January 17, 2005, defendant was in a hotel hot tub with the victim, a 14-year-old boy. Defendant began a conversation with the victim and subsequently touched the victim’s feet and upper legs. He also rubbed the victim’s chest and commented on the amount of hair on it. As the victim left, defendant grabbed the victim’s socks and placed them inside the victim’s swimming trunks. When defendant placed the socks in the victim’s waistband, he touched the victim’s pubic region.^[4]

In a written summary of the offense submitted by defendant and attached to the probation report for the trial court’s consideration, defendant stated that when he entered the hot tub, the victim was already there. After defendant told the victim he was going to go to his (defendant’s) room, he thought the victim asked him to place the victim’s feet in front of the hot tub jets. Defendant then placed the victim’s feet on the jets and left the hot tub. After changing, defendant noticed the victim in the adjacent exercise room with his hands full. When the victim asked defendant to pick up his jacket for him, defendant placed the jacket on the victim’s shoulder. As defendant put on his shoes, the victim said, “My socks.” Defendant picked up a pair of socks and placed them in the victim’s waistband.

The court denied probation and sentenced defendant to state prison for four years.^[5] He filed a timely notice of appeal.

Discussion

I. Defendant’s Sentencing Hearing Was Consistent with Due Process

Defendant argues the trial court violated his due process rights at sentencing by relying upon impermissible information presented at the hearing. We disagree.

In its report, the probation department recommended that defendant be placed on five years’ probation if the court struck the prior felony conviction alleged in the case. At the sentencing hearing, the prosecutor argued against following that recommendation: “We are not in accord with the probation report in this matter, your honor, for several reasons. The defendant’s representations to probation are misleading and minimizing about his priors. I know that the court can tell from the prior conviction, it was one count of [section 288, subdivision (a) (lewd act on a child)], but it was originally 24 counts with five little boys, all elementary school ages where the defendant was in a position of trust. Now I recognize that the defendant is now saying at this point that that was an accidental touching, but in his . . . statement to probation at that time he acknowledged touching that child’s crotch. In addition to that, then in 1999 defendant is now saying that the officer solicited him in the [section 647, subdivision (a) conviction (disorderly conduct)], but I have a copy of the police report.”

In response to the prosecutor’s reference to defendant’s disorderly conduct conviction, the court stated: “But the officer wasn’t a child.” “[I]n fairness to the defendant I have to say I think there’s a major difference between contacting an adult in a park and touching a child in a classroom and/or in a hot tub. I mean, I think we need to keep the focus on the conduct . . . that puts children at risk. That’s what I’m concerned about.”^[6]

The court did, however, agree with the prosecutor’s assessment of defendant’s section 288, subdivision (a) conviction: “I thought it somewhat troubling, I agree with you, [prosecutor], it sounds like the defendant minimized the [section 288] situation because originally there were 24 counts” and, referring to defendant’s assessment of his previous conviction stated, “quote, I wasn’t looking where I put my hand. That seems to be similar to the denial that we now see years later in the hot tub so,” “I find that troubling.”

The prosecutor then argued defendant’s actions relating to the current offense were predatory based on a police report of an interview with defendant: “[Defendant] solicited this 14-year-old boy to come into a sauna with him, then he invited the 14-year-old boy to come into the Jacuzzi with him. He massaged the child’s feet, he’s rubbing the child’s chest and stomach and he’s making a comment about this 14-year-old boy’s hair on them. The victim became very uncomfortable. As the victim was leaving the area, the defendant put socks inside the front of the victim’s shorts, and the victim felt the defendant’s hand brushing up against his pubic hair. The defendant was saying inappropriate things about piercings and genitalia and penis size.” The court responded: “This was all going on in the hot tub?”

The prosecutor continued: “[The victim] said he kept telling the defendant he was not interested in a relationship, sexual relationship with a boy and the defendant persisted in these conversations so [the victim] got up to leave and that’s when the defendant put the socks down the child’s pants. Now the victim reported, and I was present at the time that he was interviewed at the medical-legal exam, he reported at that time that the defendant’s hand brushed against his pubic hair. That is completely contrary to what the defendant is now claiming that first knuckle is the only thing that entered into this child’s waistband. I should point out to the court as well that the chest rubbing part of this harm of the putting his socks down the pants were witnessed on closed camera television by employees of the hotel, which is how they became alerted that something untoward had happened to this child and they contacted the child to find out what had happened and then called the police.”

The court responded: “This is interesting to me because the probation department’s description of the present offense does not go into the detail that you’re talking about.”

The court later asked defense counsel to address the conclusions of a clinical psychologist, Dr. George Nicastro, whose report was attached to the probation report: “It says here . . . . ‘[Defendant] denies wrongdoing and is making a plea as part of a legal strategy -- repeating a pattern established some 17 years ago [referring to a plea bargain defendant made in relation to his section 288, subdivision (a) conviction].’ You know, he’s entitled to whatever strategy or plea position he wants to take, but denial of and accepting of responsibility I find very, very troubling.” The court later noted: “I, having looked at again at the Dr. Nicastro’s report I do find it very troubling what apparently [defendant] told the doctor about the underlying offense because it doesn’t show any acceptance of responsibility. And if he can’t get to that point, then, in my mind, having done this for 18 years, whether it be in this context or in a context of people that have alcohol or substance abuse problems, we don’t make any progress if people don’t accept responsibility for their wrongdoing. Page 3, last paragraph, more specifically [referring to psychologist’s report], I do believe [defendant] may be opening to the idea that he made a mistake staying in the water with the boy. He claims he was told by the police that he was recorded on tape, undisturbed, he claimed he did nothing wrong and the tape would prove it. [Quoting psychologist’s report] ‘[Defendant] failed to see himself in a potentially litigious and dangerous setting. He failed to get out of there. By his reasoning as a hotel guest, he paid for the facility, and felt he had a right to be there. “I was there first,” he said.’ You know, that doesn’t show me as a sentencing judge that [defendant] has got a lot of insight in his accepting responsibility for the problem that he’s created here for this boy and potentially then other young boys down the line, and that’s what concerns me about all this.”

The court then denied the Romero motion and the request for probation, setting forth reasons that reflect no reliance on any of the prosecutor’s comments. Instead, the decisions were based on the victim’s age and vulnerability and defendant’s unwillingness to accept responsibility, as noted by Dr. Nicastro. The court stated, “Well, I’ve given this case a lot of thought and my concerns are as I’ve indicated, the prior is extremely serious, the vulnerability, the age of the victim, the effect of the defendant’s contact would have on the victim in the victim’s life, the defendant’s lack of acceptance of responsibility, whether he’s naive or not he can still accept responsibility if he really wanted to step up to the plate and deal with this. And I have to look at the big picture here, and that’s protection of public safety for young boys, not only here, but wherever the defendant travels to. He put this young boy in a very vulnerable position. And, finally, the defendant’s minimization of this activity troubles the court. So for all of those reasons the Romero motion is denied. There is no substantial interest of justice served by striking Romero. The court will then also deny probation based on the seriousness of the offense and based on the fact that the defendant is statutorily ineligible with the prior [section 288, subdivision (a)] strike as this is a second strike case.”

A. Waiver

During the sentencing hearing, defendant failed to raise a timely and specific objection on due process grounds, thus waiving his due process claim on appeal. Defense counsel objected as follows during the hearing: “I also feel duty-bound to object to the offer of proof which the prosecutor has made regarding the circumstances of the police report [including an interview with defendant] because they are not substantiated in court, and that’s [an] objection made for the record.”^[7]

An objection to the offer of proof concerns the relevance and admissibility of the evidence, not whether the prosecutor’s reliance on evidence violates defendant’s due process rights. (People v. Hill (1992) 3 Cal.4th 959, 989, [“[A]n offer of proof must inform the trial court of the ‘purpose, and relevance of the excluded evidence . . . .’ (Evid. Code, § 354, subd. (a).)”], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Defense counsel’s objection did not apprise the trial court of the basis for the objection now being raised on appeal and did not give the trial court the opportunity to correct the alleged error. As the court stated in People v. de Soto (1997) 54 Cal.App.4th 1, 9, “Without any specifically articulated reasons for the objections, the [sentencing] court had no real basis upon which [it] could evaluate the claims and correct the errors, if any existed.” (Italics added.) This holding is presaged in People v. Scott where the court noted that if an objection is required, it must be “timely and meaningful,” or it is waived. (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Smith (1998) 64 Cal.App.4th 1458, 1468 [“not only a timely but a specific objection or motion to preserve an issue for appeal” is required], italics omitted.) Defendant’s due process claim is thus waived.

B. No Violation of Defendant’s Due Process Rights

Even if defendant’s claim had been made in the trial court, we conclude no due process error occurred.

A defendant may obtain relief on due process grounds only if the sentencing hearing procedures are fundamentally unfair. Due process does not require the same procedural safeguards for a sentencing hearing as for trial. (People v. Peterson (1973) 9 Cal.3d 717, 726 [testimony of police officer at probation hearing regarding hearsay comments held sufficiently reliable for consideration by trial court]; accord, People v. Arbuckle (1978) 22 Cal.3d 749, 754; People v. Lamb (1999) 76 Cal.App.4th 664, 683.) “Fundamental fairness, however, requires that there be a substantial basis for believing the information is reliable.” (Lamb, at p. 683, citing Arbuckle, at pp. 754-755.) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or “out-of-court” information relative to the circumstances of the crime and to the convicted person’s life and characteristics.’ [Citation.]” (Arbuckle, at p. 754.)

Defendant argues three of the prosecutor’s comments violated defendant’s due process rights: (1) 24 counts of section 288, subdivision (a) were dismissed in return for defendant’s plea to one count of the same offense; (2) a police interview with defendant regarding the current offense described details not included in the probation report; and (3) a police report describing defendant’s prior section 647, subdivision (a) conviction depicted details of the incident not described in the probation report. The prosecutor’s statements were reliable.

We first address the prosecutor’s comment that 24 counts of section 288, subdivision (a), were dismissed pursuant to defendant’s plea. “In the sentencing process the court may consider prior arrests which did not result in conviction, defendant’s criminal history [citation] and raw arrest data [citation], so long as the information is accurate and reliable [citation] and the judge is not misled into believing an arrest to be a conviction. [Citation.]” (People v. Rhines (1982) 131 Cal.App.3d 498, 509.) Here, the prosecutor clearly stated that the additional counts had been dismissed: “[I]t was originally 24 counts with five little boys, all elementary school ages where the defendant was in a position of trust.” Furthermore, the current probation report refers to the 24 dismissed counts twice, once in the probation officer’s evaluation, and again in the disposition of prior offenses,^[8] reinforcing the reliability of the prosecutor’s comment. Moreover, the discussion in the probation report makes clear that the court was aware of the dismissed counts independent of the prosecutor’s comments. The prosecutor merely restated this information to suggest that defendant’s “representations to probation [were] misleading and minimizing about his priors.”^[9]

The prosecutor’s description of the current offense was also proper as the trial court had a substantial basis for believing the prosecutor’s sources--the police report and defendant’s statement to the police--were reliable. The probation report itself related the victim’s statement that “defendant’s hand brush[ed] up against his pubic hair.” As the court in Arbuckle makes clear, a sentencing judge acts in accordance with the Due Process Clause when considering “ ‘responsible unsworn or “out-of-court” information relative to the circumstances of the crime.’ “ (People v. Arbuckle, supra, 22 Cal.3d at p. 754.)

Finally, the prosecutor’s reference to defendant’s section 647, subdivision (a) conviction was based on a police report from the incident and was thus similarly reliable.

C. Prejudice

Even if the challenged comments by the prosecutor violated defendant’s due process rights, it is not reasonably probable the court would have sentenced defendant differently had the comments not been made. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685 [“[A]n appellate court should not remand for resentencing unless ‘ “ ‘ “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.” ‘ “ ‘ “]; id. at p. 1688.) The court does not violate due process, even if unreliable information is presented, if the court does not rely on the information to impose the defendant’s sentence. (People v. Bustamante (1992) 7 Cal.App.4th 722, 726-727.) The court explained that it principally based its decision on defendant’s failure to take responsibility for his actions as shown by his statements to the psychologist, the victim’s age and vulnerability, the seriousness of defendant’s prior section 288 conviction and on defendant’s ineligibility for probation under California’s three strikes law.

The court considered the 24 dismissed counts of section 288, subdivision (a) only to draw a parallel between his current and prior explanationsfor his actions: “I thought it somewhat troubling . . . , it sounds like . . . defendant minimized the [section 288, subdivision (a) prior offense] because originally there were 24 counts and -- . . . quote, I wasn’t looking where I put my hand. That seems to be similar to the denial that we now see years later in the hot tub.” In stating its reasoning, the court made no mention of the prosecutor’s statements regarding the current offense, and instead relied upon the victim’s vulnerability, age, the effect defendant’s actions would have on the victim, defendant’s failure to accept responsibility and the seriousness of his prior offenses. Finally, the court affirmatively and repeatedly disregarded the prosecutor’s reference to defendant’s disorderly conduct conviction. Thus, the court did not deny defendant’s due process rights because the statements did not form the basis for its decision. (See People v. Bustamante, supra, 7 Cal.App.4th at pp. 726-727.)

II. The Trial Court Properly Denied Defendant’s Romero Motion

Defendant argues the court abused its discretion in denying his Romero motion. (People v. Superior Court (Romero), supra, 13 Cal.4th 497.) We find no such abuse.

The touchstone for any Romero determination to strike a prior conviction under the three strikes law is whether, in light of the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and his or her background, character and prospects, the defendant may be deemed outside the spirit of the three strikes law and should therefore be treated as if he or she had not previously been convicted of one or more serious or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.) Because the trial court’s determination of this issue is discretionary, we employ the deferential abuse of discretion standard of review. Applying this standard, we must ask whether the ruling in question was “ ‘ “controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice,” ‘ “ as well as “ ‘ “grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue” ‘ “; or whether instead it fell outside the bounds of reason under the applicable law and relevant facts. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.)

The nature of a defendant’s prior offenses under the three strikes law is always a relevant consideration at a Romero hearing. (People v. Williams, supra, 17 Cal.4th at p. 161; People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) There must be something exceptional about the priors, or the current offense, or the defendant’s background, character, and prospects, to justify the extraordinary exercise of discretion involved in striking a strike. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338; People v. McGlothin (1998) 67 Cal.App.4th 468, 474.)

Here, defendant argues the trial court relied upon improper information in denying his Romero motion. As discussed above, the court was entitled to rely on the prosecutor’s statements at the sentencing hearing. Furthermore, this record clearly demonstrates that the trial court, with full awareness of its discretion to dismiss appellant’s prior conviction, considered all permissible factors, balanced the relevant facts, and reached an impartial decision in conformity with the spirit of the three strikes law. The court clearly stated that it had considered the victim’s age, vulnerability, the seriousness of defendant’s prior section 288 offense and defendant’s unwillingness to accept responsibility as evidenced by the psychologist’s conclusions. We conclude the court’s refusal to strike appellant’s prior conviction for three strikes purposes was not an abuse of discretion. (People v. Williams, supra, 17 Cal.4th at p. 162.)

III. Defendant Received Effective Assistance of Counsel

Defendant argues his counsel provided ineffective assistance by failing to object and moving to strike the prosecutor’s statements at the sentencing hearing. We disagree.

To prevail on a claim of ineffective assistance, defendant “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ “ (Ibid., quoting Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, at p. 697.)

We have already determined that the prosecutor’s statements during the sentencing hearing did not violate defendant’s due process rights. In light of this determination, we conclude defendant has not shown he suffered prejudice from the asserted omissions by trial counsel.

Even if the prosecutor’s statements were improper, defendant’s claim fails in view of his failure to establish the reason defense counsel did not object on due process grounds. If the record contains no explanation for defense counsel’s challenged behavior, a reviewing court will reject the claim of ineffective assistance “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Pope (1979) 23 Cal.3d 412, 426.) “To justify relief, [defendant] must be able to point to something in the record showing that counsel had no satisfactory rationale for what was done or not done.” (Id. at p. 426, fn. 16.) Defense counsel could have concluded that the prosecutor’s statements accurately reflected the contents of the police reports and further objection would have merely confirmed her statements. “It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court. [Citations.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 924.) We find defense counsel was not ineffective.

Disposition

Defendant’s sentence is affirmed.

SIMONS, Acting P.J.

We concur.

GEMELLO, J.

BRUINIERS, J.^*

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^[1] All undesignated section references are to the Penal Code.

^[2] Section 1170.12, subdivision (c)(1) reads: “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”

^[3] The factual summary is taken from defendant’s probation report as his conviction is based upon a plea of no contest and no preliminary examination occurred.

^[4] In a voluntary statement to the police, defendant admitted he had massaged the victim’s feet and rubbed his chest while commenting on the amount of hair that was growing. He also admitted to stuffing socks into the front of the victim’s swimming trunks.

^[5] The court sentenced defendant to the low term of two years for violation of section 647.6, subdivision (c)(2). This was doubled pursuant to section 1170.12, subdivision (c)(1), because defendant had a prior strike conviction.

^[6] The court further explained why it found defendant’s section 647, subdivision (a) conviction irrelevant: “The defendant’s activities [regarding his section 647 conviction] otherwise are not, you know, obviously they were against the law, but they’re very different than putting children in a vulnerable position of trust.” Later, when the prosecutor again raised the issue, the court responded: “I don’t think we need to keep going over that [section 647 conviction]. I’m happy to listen to your arguments.”

^[7] The court responded: “Well, [the prosecutor’s offer of proof is] as relevant as any of the material that [defense counsel] submitted. What’s fair is we’re basically treating this as a sentencing hearing. I’ve been giving the parties probably at least 10 to 15 minutes of time here. . . . [Defense counsel has] submitted quite a bit of material, I think the [prosecutor is] entitled to submit a reasonable response by illuminating what the alleged facts are.”

^[8] The probation report evaluation states: “In 1989, [defendant] was convicted of felony lewd or lascivious acts with a child under 14, which was based on an offense he committed while teaching in an elementary school. One of his students was the victim in that case, although there were 24 additional counts which were dismissed in the plea bargain.” The report’s disposition of this prior offense reads: “plea to othr chrg; add 24 cts of 288(a) PC, all dismd plea to othr chrg.”

^[9] The probation report states that defendant “noted that other students in the school made allegations as well. He stated that they said he had put his hands on their legs, too. He stated that he did help one of the students pin up the zipper of his pants.”

^* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.