P. v. Rodriguez

Filed 8/29/06 P. v. Rodriguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

Law Offices of Allen G. Weinberg and Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

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Hector Martin Rodriguez was charged with 17 counts of child molestation. He entered into a negotiated plea agreement pursuant to which he entered a plea of no contest to committing one count of lewd and lascivious acts on the body of a child. (Pen. Code, § 288.)^[1] Rodriguez admitted that he suffered a prior strike under the Three Strikes law (§§ 667, subd. (e) and 1170.12, subds. (a)-(e)). Pursuant to the terms of the negotiated agreement, the other 16 molestation counts were dismissed. Rodriguez then moved to have the court dismiss his prior strike. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Both respondent and Rodriguez agreed that if the Romero motion were granted, the maximum upper term would be three years; otherwise the upper term would be six years. The court denied his motion and sentenced Rodriguez to the agreed-upon maximum upper term of six years. On appeal, Rodriguez contends that the trial court abused its discretion by refusing to strike his prior conviction. We affirm.

As many of the facts surrounding the underlying offense are not relevant on appeal, we omit a detailed factual statement. Briefly, Rodriguez was charged after his stepdaughter reported he had sexually molested her on numerous occasions while she was between the ages of 11 and 15. DNA evidence established that the victim’s six-year-old daughter was fathered by Rodriguez.

DISCUSSION

Rodriguez contends that the trial court abused its discretion by denying his motion to strike his prior conviction. First, Rodriguez contends that the court was not fully aware of its sentencing discretion. Second, Rodriguez argues that the court failed to exercise informed sentencing discretion because the court: (1) did not consider the remoteness of his prior strike and his lack of convictions between the time of his prior strike and the instant offense; (2) did not give sufficient weight to his medical disabilities; and (3) incorrectly found that Rodriguez lacked remorse. We disagree.

A trial court may exercise its discretion under section 1385 to strike a prior felony when it deems it is in the furtherance of justice to do so. (Romero, supra, 13 Cal.4th at p. 504.) Review of a trial court’s decision whether or not to strike a prior under section 1385, like most other discretionary trial court rulings, is limited in scope. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) This is true in part because appellate courts must give great deference to discretionary trial court rulings and will disturb them only upon a clear showing of abuse which results in a manifest miscarriage of justice. (See People v. Jordan (1986) 42 Cal.3d 308, 316.) A trial court abuses its sentencing discretion only where the trial court was unaware of its discretion to strike, the court considered impermissible factors, or where the court’s mechanical application of the statute yields “an ‘arbitrary, capricious or patently absurd’ result .” (People v. Carmony (2004) 33 Cal.4th 367, 376-378.) Section 1385 does not require that the trial court explain why it is exercising its discretion not to strike a prior. (People v. Carmony, supra, at p. 376.) We can presume the trial court properly considered all the arguments made and rejected them all in light of its decision not to strike. (Ibid.)

Here, the record establishes that the trial court was well aware of its discretionary power under section 1385 and Romero and acted to achieve legitimate sentencing objectives after a thoughtful and conscientious assessment of all relevant factors, including individualized factors pertaining to Rodriguez. (See People v. Williams (1998) 17 Cal.4th 148, 161-164; see also Romero, supra, 13 Cal.4th at p. 530.) The trial court expressly ruled on the Romero motion. After consideration of the written motion and the oral comments of counsel at sentencing, the court stated:

“That is a significant issue in terms of his apparent lack of remorse, if you will. Failure to even acknowledge that he did something can easily be inferred from the very letter that he just submitted to me.

I think, given the nature of the instant offense, that it would not be in the interest of justice to strike the strike prior. I am going to deny the motion.”

Rodriguez’s continued assertion to probation that the charges “aren’t fair” and that he was being charged “unjustly,” support the trial court’s finding that Rodriguez lacked remorse. (People v. Lucero (2000) 23 Cal.4th 692, 738 [lack of remorse may properly be considered in sentencing].) The remaining issues of remoteness, Rodriguez’s medical condition, and the nature of the offense were all adequately presented and argued to the sentencing court and impliedly rejected. (RT 329-330) Following his first conviction, Rodriguez began repeatedly sexually abusing his victim, impregnating the young girl. In so doing, Rodriguez clearly demonstrated a continuous inability to conform his conduct to the requirements of the law, particularly as it pertains to engaging in inappropriate sexual conduct toward young children. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [decision to strike prior conviction based on remoteness in time is abuse of discretion where defendant has not led crime-free existence since time of last convictions].) Rodriguez committed the offenses while suffering from the medical conditions he now claims justify a lighter term.

Given this record, we can hardly say the court’s decision not to strike is irrational or arbitrary.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.

^[1]Subsequent statutory references are to the Penal Code unless indicated otherwise.