P. v. Monte
Filed 3/15/06 P. v. Monte CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SIXTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. THOMAS KALANI MONTE, Defendant and Appellant. | H028982 (Santa Clara County Super. Ct. No. CC464200) |
After a court trial, the trial court found defendant Thomas Kalani Monte guilty of two counts of lewd and lascivious conduct upon a child. (Pen. Code, § 288, subd. (a).) For each count, it also found true allegations of substantial sexual contact (no probation) and habitual sexual offender (25-year to life sentence). For each count, it further found true allegations of three prior convictions (Three Strikes law) and two prior serious-felony convictions (five-year sentence enhancements). After denying defendant's motion to dismiss the strike priors, it sentenced defendant to 170 plus years in prison consisting of 20 years for the serious-felony findings (five years twice for each conviction) plus 150 years to life (25 years to life tripled per Three Strikes law for each conviction). On appeal, defendant contends that (1) the trial court failed to obtain an express waiver of jury trial from his counsel, and (2) his sentence constitutes cruel and unusual punishment. We affirm the judgment.
background
Defendant molested his niece on three occasions. Two incidents happened in San Jose (one incident happened in Idaho). The victim was eight years old at the time of trial. The first San Jose incident occurred in 2002, several months before the victim turned six years old; the second San Jose incident occurred in 2003, during the same month in which the victim turned six years old. (The Idaho incident occurred several months after the second San Jose incident.)
Defendant's first strike prior involved a molestation incident perpetrated in 1993 against the six-year-old daughter of an acquaintance; defendant's second and third strike priors involved molestations in 1989 against two victims, a six-year-old girl and a nine-year-old girl, who were in the care of defendant's sister-in-law.
jury waiver
At the jury waiver proceeding, the following colloquy took place:
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