Filed 12/11/13 P. v. Aguilar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. JOSE LUIS AGUILAR, Defendant and Appellant. G047777

(Super. Ct. No. 09WF1126)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Carla M. Singer, Judge. Affirmed as modifi ed and remanded for re-sentencing. David M. McKinney, under appoin tment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, Ba rry Carlton and James H. Flaherty III, Deputy Attorneys Gene ral, for Plaintiff and Respondent.

* * *2 A jury convicted defendant Jose Lu is Aguilar of six counts of committing lewd acts upon three children under age 14. (Pen. Code, § 288, subd. (a); all further statutory references are to this code.) As to all of the counts, th e jury found that the offenses were committed against more than one victim. The jury al so found that as to four of the counts, defendant had engaged in substantial sexual contact. The court subsequently found de fendant had suffered a prior qua lifying conviction under section 1203.066, subdivision (a )(5), he was a habitual sex offend er (§ 667.61), he had suffered a prior serious felony conviction, and that the present offense was also a serious felony (§ 667, subd. (a)(1). The court sentenced de fendant to six consecutive terms of 50 years to life, plus 5 additional years for th e prior serious felony conviction. In his appeal, defendant raises several claims. First, he contends the court erred in imposing double terms under sectio n 667, subdivisions (d) and (e)(1), on counts 3, 5, 7, and 8, because the “prior” convictions did not, in fact, prece de these crimes. The Attorney General agrees that this contention is co rrect. We likewise agree and will order the court to re-sentence defendant accordingly. Second, defendant argues the court improperly sentenced him to 25 yearsto-life terms (doubled by the court to 50 year s to life) under section 667.61, subdivisions (a) and (d)(1) on counts 3, 5, 7, and 8. We agree that this section does not apply because when the conduct, which is the subject of these counts, took pl ace defendant had not “been previously convicted.” (§ 667.61, subd. (d)(1).) Ne vertheless, the sentence was proper because it was not only authoriz ed, but mandated unde r section 667.61, subdivision (j)(2). Third, defendant claims that, by impos ing six consecutive terms, the court erred in believing consecutive sentenci ng was mandatory under section 667.61, subdivision (i). The court properly imposed consecutive sentence s, not under this section, but because it found the acts for which defendant was convicted were separate

acts.3 Finally, defendant urges the court abused its discretion in refusing to strike his prior convictions under People v. Superior Court (Romero) (1996) 13 Ca l.4th 497. We reject this contention; the trial court pr operly exercised its di scretion in not striking the prior convictions. In his opening brief, defendant also contended that his conviction on two charges (counts 3 and 5) must be vacated because his prosecution for these crimes was time barred. The Attorney General sought to uphold the convictions on these counts under section 803, subdivision (f). We asked the parties to brief the effect of section 801.1 on the timeliness of the prosecution fo r these charges. Defendant now concedes section 801.1 is controlling. Based on this concession, we affirm defendant’s convictions

on counts 3 and 5.

FACTS

Three sisters, J.C., Y.A., and R.A. and their mother E.S. lived with defendant and his family during two periods. The first time was after the family arrived from Mexico in 2001, when E.S. was pregnant w ith J.C. At that time Y.A. was in third grade and R.A. was in kindergarten. In 20 09 the second stay w ith defendant was for

about a month. After the second stay, when E.S. and her dau ghters lived across the street from defendant, J.C. was asked to get some water from defendant’s house. She declined, stating she was afraid of defendant. She then told R.A. that defe ndant had been sticking his hands down her “private front part.” R. A. told their mother, who in turn called the police. At the trial all three sisters testified to having been molested by defendant, Y.A. and R.A. during the 2001 stay with defendant and J.C. duri ng the second stay in 2009.4 DISCUSSION

1. The convictions based on the crimes agains t Y.A. and R.A (count s 3, 5, 7, and 8) preceded defendant’s other conviction for lewd conduct; hence the other conviction

should not have been used as a “prior.”

The court doubled the te rm for the convictions on counts 3, 5, 7, and 8 under section 667, subdivisio ns (d) and (e)(1). These counts were based upon conduct

that occurred in 2001 and 2 002. The “prior” crime, to which defendant had pleaded guilty, consisted of a lewd act against a six- year-old child (§ 288, subd. (b)) that had taken place in 2003. Because that offense did not precede th e conduct providing the basis for counts 3, 5, 7, and 8, the doubling of th e sentence on these counts was error. The Attorney General concedes this and we rema nd the case for the court to reduce the terms on counts 3, 5, 7, and 8 from 50 year s to life to 25 years to life.

2. The imposition of a sentence of 25 years to life on counts 3, 5, 7, and 8 was mandated under section 667.61, subdivision (j)(2). Defendant argues that section 667.61, subdivisions (a) and (d)(1) does not apply to counts 3, 5, 7, and 8, because, as noted above, the conduct providing the basis

for the conviction on these coun ts occurred before the 2003 conviction for lewd act on a child. We agree. But this does not make the sentence erroneous. In fact, a lesser

sentence would have constitute d an unlawful sentence. Section 667.61, subdivision (j)(2) prov ides “[a]ny person who is convicted of an offense specified in su bdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child un der 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life.” Defendant’s conviction on counts 3, 5, 7, and 8 were under s ection 288, subdivision (a). Th is crime is listed in section 667.61, subdivision (c)(8). Th e circumstances specified in section 667.61, subdivision5 (e)(4) also apply because defendant committed th is offense against more than one victim. The jury found that the crimes were committed against more than one victim. Hence the 25 years-to-life sentence was mandated under section 667.61, subdivision (j)(2). Defendant argues that the court errone ously based the sentence on section 667.61, subdivision (a). Even if this were true, such an error would not require us to reverse the sentence imposed on this ground. The sentence is mandated and the jury made the required finding, thus satisfying the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466, 483. Thus, the court wo uld have no choice but to impose the same

sentence.

3. Consecutive sentences were properly imposed. The prosecution argued the court was required to impose consecutive sentences under section 667.61, subsection (i). The Attorney General concedes that this provision does not apply. Defendant argues because of this error by the prosecutor, the court erroneously sentenced him to consecu tive sentences. But the record does not support this claim. Before sentencing, the court stated “it is my intention today to sentence you in accordance with the law.” The court made this statement without reference to any specific statute. We must therefore inquire whether the sentence is authorized separately from section 667.61, subsection (i). And it is. As the Attorney General points out, citing People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263, the court has discretion to order consecutive sentences when the crimes involve separate crimes or separate victims. And, at sentencing, the court stated “the acts of which [defendant] was convicted in this case were separate acts. There were three separate victim s, multiple acts with respect to each victim. Each charge of which he stands convicted was a separate crime. And, conseque ntly, the court will be imposing consecutive sentences.”6 4. The court did not abuse its discretion in refusing to strike defendant’s prior

conviction. In explaining her refusal to strike th e prior conviction, the court stated, “I

considered the Romero [ People v. Romero, supra, 13 Cal.4th 497] circumstances and whether or not it would be appropriate to strike the strike. Because the strike is identical

to the classification of crime that was co mmitted in the case on which the defendant was sentenced last week, I referred to the factors under Romero . . . and came to the

conclusion that the strike sh ould not be stricken. The defendant’s background and

character and the information contained in both probation reports from both cases suggest that he is a known sexual pr edator in the community. Th e conviction in the earlier case was sometime in 2003, I believe. And the char ges that we addressed in this case arose in between which is not a significa nt period of time. It does not appear that the defendant has prospects for a crime-free life.” Defenda nt focuses on the court’s statement “the charges that we addressed in this case arose in between” and concludes not only that the court was mistaken in thinking the earlier conviction preceded all of the charges involved in the present case, but also that this must be why the co urt refused to exercise its discretion in striking the prior conviction. We believe defendant reads too much into this phrase. Although the phrase was less than el egant, it appears the court misspoke and meant the prior conviction was sandwiche d between the charges involving Y.A. and R.A and the charges involving J.C. More significantly, the court based its decision on defendant’s course of conduct sexually abus ing many little girls over a substantial period of time. It would appear that the exact se quence in which these mo lestations took place

would have little relevance on th e question of whether the cour t should strike defendant’s prior conviction.7 And, considering the circumstances of this case, the number of little girls involved here, together with the 2003 abuse, it hardly appears the court abused its discretion in refusing to strike the prior conviction. “While the trial court has the power to dismiss a strike conviction [citation], an appellate court will not disturb the trial court’s ruling denying de fendant’s request to

dismiss his strike conviction absent an affirm ative showing of an abuse of discretion. [Citation.]” ( People v. Uecker (2009) 172 Cal.App. 4th 583, 599.) Here, defendant’s only argument is based on the premise that the trial court was mistaken as to the sequence in which defendant’s many molestations took place. But it was not the sequence of these events; it was the number of them and defend ant’s persistence in continuing in this

conduct over time. Even if the court was mi staken as to the exac t sequence, this would hardly constitute an abuse of discretion. As our Supreme Court explained in People v. Williams (1998) 17 Cal.4th 148, “no weight whatsoever may be given to factors extrinsic to the [“Three Strikes”] scheme” and “the cour t in question must consider wh ether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his b ackground, 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 convi cted of one or more serious and/or violent felonies.” ( Id . at p. 161.) Based on the fa cts presented in this case, and considering defendant’s 2003 conviction for si milar conduct, we can hardly conclude he

“should be treated as th ough he had not previously been convicted.” ( Ibid .)8 DISPOSITION

The superior court is directed to strike the sentences on counts 3, 5, 7, and 8, impose new prison terms in accordance with this opinion, and send a revised abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.