P. v. OBryan

Filed 5/28/08 P. v. OBryan CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Gary Lee OBryan was sentenced to six years in prison following his conviction for lewd and lascivious conduct with a child under the age of 14 years and failure to register as a sex offender. He argues the court failed to justify imposition of the upper term on his lewd and lascivious conduct conviction. Because the record shows that six years is actually the mid-term sentence and is the sentence selected by the trial court, we direct that the abstract of judgment be amended. We also direct that the abstract of judgment be amended to properly reflect the sentence imposed for OBryans failure to register. OBryan also contends that the trial court abused its discretion when it declined to strike sentencing enhancements for his prior criminal convictions, and that his sentence was constitutionally excessive and disproportionate. We disagree with these arguments and affirm with directions to modify the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, OBryan pled guilty in Lake County to committing a lewd and lascivious act on a four-year-old child.^[1] The court suspended imposition of sentence and placed him on five years probation.

In 2001, OBryan admitted to a probation violation for his failure to report to the probation department, and pled guilty to failing to register as a sex offender. OBryan was placed on five years probation and ordered to serve 90 days in jail for this 2001 failure to register.

In 2004, he again admitted a probation violation, and probation was extended to August 2006.

In 2005, he admitted a probation violation for his failure to pay restitution, and failure to attend and successfully complete a treatment program for sex offenders. During his interview with a Lake County probation officer concerning the 2005 revocation proceedings, OBryan said he was reporting to the probation department in Alameda County. When the Lake County Probation Department contacted OBryans Alameda probation officer, Lake County learned that OBryan told the Alameda County Probation Department that he had moved to Lake County. It turned out OBryan was actually living in Lake County when he told the Lake County probation officer that he was living and reporting in Alameda County.

In March 2006, Lake County filed a new probation revocation report and affidavit based on OBryans failure to register in Lake County as a sex offender and his misleading statements about his residence. The district attorney also charged him in a felony complaint with failing to register as a sex offender. The complaint alleged OBryans conviction for lewd and lascivious conduct as a prior strike. The lewd and lascivious conduct conviction and his 2001 conviction for failure to register as a sex offender were also alleged to make OBryan presumptively ineligible for probation on the new offense.

In May 2006, OBryan pled no contest to the failure to register charge, and admitted the prior strike. He also admitted that he violated probation and probation was revoked on OBryans lewd and lascivious conduct conviction. In July 2006, the court sentenced OBryan to the mid-term of six years following the probation revocation on his lewd and lascivious conduct conviction, and concurrently to four years on the conviction for failure to register that was double the two-year mid-term due to the prior strike. OBryan appealed.

DISCUSSION

A. Timeliness of Appeal

The People argue this appeal should be dismissed as untimely because OBryans notice of appeal was not filed within 60 days of the rendition of judgment. But on March 13, 2007, this court granted OBryans unopposed motion for constructive filing, and deemed his September 22, 2006, notice of appeal to have been timely filed. We therefore proceed to the merits.

B. Terms Imposed for Lewd and Lascivious Conduct Conviction and Failure to Register as a Sex Offender

OBryan argues the trial court violated the rule enunciated in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], because it failed to specify facts that would justify its imposition of the upper term for his conviction for lewd and lascivious conduct. But OBryans sentence for this crime was a term of six years in prison, which is the middle term. (Pen. Code,  288, subd. (a).) There appears to be a mistake in the abstract of judgment, which designates the sentences imposed on both of OBryans convictions as upper terms. The transcript of the sentencing hearing clearly reflects the courts intention to impose the middle terms for both of OBryans offenses. We thus direct that the abstract of judgment be corrected to accurately reflect the mid-term sentences actually imposed by the trial court.

C. Prior Conviction Enhancements

Trial courts may, in the interests of justice, exercise their discretion to strike allegations from a criminal complaint that a defendant has previously been convicted of a felony. (Pen. Code,  1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508.) Here, OBryans conviction in 1999 for lewd and lascivious conduct and his conviction in 2001 for his failure to register as a sex offender were alleged in the complaint. The 1999 conviction was pled as a prior felony enhancement under the three strikes law,^[2]and both the 1999 conviction and the 2001 conviction were alleged to make OBryan presumptively ineligible for probation.^[3] OBryan moved the trial court to strike the prior felony allegations from the complaint. Here, he argues its refusal to do so was error.

OBryan acknowledges that the underlying offense, a sexual act with a very young victim in 1999, was particularly reprehensible. But he claims that his failure to register that led to this 2006 conviction was nothing more than a trivial, technical violation of the registration requirement. He argues that his sentence is harsh and unjust, and pursuant to Penal Code section 1385,^[4]the trial court should have stricken the sentencing enhancements due to his prior convictions in the interests of justice.

When it denied OBryans motion, the trial court explained thats not just because the prior offense was so horrible, the Court is also looking at the intervening years . . . . The court ha[d] the impression that [OBryan was] not taking probation seriously, and noted his failures to report appropriately in both cases and to complete counseling.^[5]

The court acknowledged the important public purposes served by the sex offender registration statute, and that failure to register is a serious offense. The court also noted this was OBryans second failure to register during his probation for the lewd and lascivious conduct conviction. At the sentencing hearing, the court announced that even if OBryan were eligible, the court would deny probation based on his previous poor performance while on probation.

The trial court explained that it originally gave OBryan a chance on probation because of [his] age and other factors. But by the sentencing hearing the court was concerned that OBryan was telling the Alameda probation officer he was registered in Lake and telling the Lake probation officer he was registered in Alameda, and he gave some statements that he was in a meeting with one and couldnt make the meeting with the other, and it turned out to not be true. The court concluded OBryan was given a chance to make good, and he failed to do that.

The court observed: Im seeing remorse in court. The problem is that that remorse seems to just happen when hes got a new charge over his head. And he sort of forgets about that remorse when hes out on probation with an opportunity to straighten his life out. And I really have the overall impression that he[s] trying to be a con artist with everyone and to make things better for himself. And I dont have any faith that if he were placed on probation again, that he could meet the terms. And I dont think that its a good idea to put the public at risk by creating that situation again. The court described the original offense as outrageous, and its initial grant of probation as an act of extraordinary kindness . . ., considering the downside risk to the public. But it did happen. And I dont think it should happen again. The court also observed that OBryan was on two separate grants of felony probation when the current failure to register offense occurred.

OBryan has not shown that his was an unusual case that would warrant probation eligibility under Penal Code section 1203, subdivision (e)(4) and the criteria set forth in California Rules of Court, rule 4.413(c).^[6] He has not demonstrated that the court was unaware of its discretion to strike prior felony allegations, that it relied on impermissible factors, or that his sentence was arbitrary, capricious, or a patently absurd result. (See People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony I).) The trial court did not abuse its discretion when it refused to strike the prior felony allegations.

D. The Correct Sentence for Failure to Register as a Sex Offender

The trial court sentenced OBryan to two years imprisonment for his failure to register as a sex offender, and stated That term is doubled to four years based on the strike allegation. But the abstract of judgment reflects only a two-year sentence for this crime and does not show that the sentence was doubled to four years. Even though the parties have not raised this issue, we have the authority to correct a clerical error in an abstract of judgment at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct that the abstract of judgment be corrected to reflect double the base term on OBryans conviction for failure to register as a sex offender to show a sentence of four years for that offense that runs concurrently with his six-year sentence for lewd and lascivious conduct.

E. Challenge to Sentence as Disproportionate

A punishment that is disproportionate to the crime violates the cruel and unusual punishments clause of our state Constitution (Cal. Const., art. I,  17) when it shocks the conscience and offends fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441, 478.)

OBryan argues that his conviction for failure to register is a minor, status crime which does not justify severe punishment. Thus, this case calls for reconsideration in light of the proportionality principle. Not only do we disagree with OBryan, the cases on which he relies are distinguishable.

He relies on People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II). In Carmony II, a sex offender who failed to provide updated registration information within five days of his birthday was sentenced to a prison term of 25 years to life under the three strikes law. (Id. at pp. 1071-1072.) The majority held that a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, and remanded for resentencing. (Id. at p. 1073.)

OBryan claims his case is analogous to Carmony II, because there is disproportionality between the five years probation he received for his 2001 failure to register, and the four-year prison sentence for his current offense. But the facts surrounding OBryans failure to register are significantly more egregious than the defendants in CarmonyII, and the sentence OBryan received was far less severe. OBryan has cited no authority to support a conclusion that his four-year sentence was unconstitutionally disproportionate, in light of the circumstances of his failure to register, the seriousness of his strike offense, and his recidivism. (See Carmony II, supra, at p. 1072 [It is a rare case that violates the prohibition against cruel and/or unusual punishment].)

DISPOSITION

The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the sentence imposed for each conviction is the middle term, to double the base term imposed for OBryans failure to register as a sex offender, and to forward a corrected abstract of judgment to the California Department of Corrections.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Jenkins, J.

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^[1] According to the probation officers report, the four-year-old victim told police that OBryan forced her to orally copulate him, and hit her. Semen was found on the shirt the victim wore at the time of the assault. OBryan was 21 years old at the time.

^[2] Penal Code section 667, subdivision (e)(1) allowed the trial court to rely on OBryans 1999 conviction to double the base term in imposing sentence for any conviction resulting from the charges in the complaint.

^[3] See Penal Code section 1203, subdivision (e)(4).

^[4] Penal Code 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. Section 1385, subdivision (c)(1) provides: If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).

^[5] OBryans therapist had reported to the probation department: He has not followed his commitment to being in individual therapy . . . and has been spotty most recently in group, either simply not showing up or coming in late, sitting near the door and quickly leaving the minute group was over. Test results also showed OBryan had a sexual interest in young female children, but [h]e ha[d] not been dealing with this in group or in individual treatment . . . [and] ha[d] been denying the attraction. [H]is basic stance regarding the offense for which he [was] on probation [was] that it was the drugs and alcohol that was the basis of the molestation.

^[6] California Rules of Court, rule 4.413(c) sets forth factors that may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate, including when the prior felonies were substantially less serious than the circumstances typically present in other cases involving [two prior felonies], and the defendant has no recent record of committing similar crimes or crimes of violence, and when the current offense is less serious than the prior felonies and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. The rule also allows for consideration of facts or circumstances reducing the defendants culpability for the offense, including participat[ion] in the crime under circumstances of great provocation, coercion or duress or as a result of a mental condition that is highly likel[y to] respond favorably to mental health care and treatment that would be required as a condition of probation, along with defendants status as youthful or aged, with no significant record of prior criminal offenses.