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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047777

         v.                                                            (Super. Ct. No. 09WF1126)

JOSE LUIS AGUILAR,                                                     OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Carla M.
Singer, Judge. Affirmed as modified and remanded for re-sentencing.
                   David M. McKinney, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James
H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              A jury convicted defendant Jose Luis 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, the jury found that the
offenses were committed against more than one victim. The jury also found that as to
four of the counts, defendant had engaged in substantial sexual contact. The court
subsequently found defendant had suffered a prior qualifying conviction under section
1203.066, subdivision (a)(5), he was a habitual sex offender (§ 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 defendant to six consecutive terms of 50 years
to life, plus 5 additional years for the prior serious felony conviction.
              In his appeal, defendant raises several claims. First, he contends the court
erred in imposing double terms under section 667, subdivisions (d) and (e)(1), on counts
3, 5, 7, and 8, because the “prior” convictions did not, in fact, precede these crimes. The
Attorney General agrees that this contention is correct. We likewise agree and will order
the court to re-sentence defendant accordingly.
              Second, defendant argues the court improperly sentenced him to 25 years-
to-life terms (doubled by the court to 50 years 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 place defendant had not
“been previously convicted.” (§ 667.61, subd. (d)(1).) Nevertheless, the sentence was
proper because it was not only authorized, but mandated under section 667.61,
subdivision (j)(2).
              Third, defendant claims that, by imposing six consecutive terms, the court
erred in believing consecutive sentencing was mandatory under section 667.61,
subdivision (i). The court properly imposed consecutive sentences, not under this
section, but because it found the acts for which defendant was convicted were separate
acts.

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              Finally, defendant urges the court abused its discretion in refusing to strike
his prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
We reject this contention; the trial court properly exercised its discretion 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 for 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 with J.C. At that time Y.A. was in third
grade and R.A. was in kindergarten. In 2009 the second stay with defendant was for
about a month. After the second stay, when E.S. and her daughters 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 defendant 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. during the second stay in 2009.




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                                       DISCUSSION


1. The convictions based on the crimes against Y.A. and R.A (counts 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 term for the convictions on counts 3, 5, 7, and 8
under section 667, subdivisions (d) and (e)(1). These counts were based upon conduct
that occurred in 2001 and 2002. 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 the conduct providing the basis
for counts 3, 5, 7, and 8, the doubling of the sentence on these counts was error. The
Attorney General concedes this and we remand the case for the court to reduce the terms
on counts 3, 5, 7, and 8 from 50 years 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 counts 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 constituted an unlawful sentence.
              Section 667.61, subdivision (j)(2) provides “[a]ny person who is convicted
of an offense specified in subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 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 section 288, subdivision (a). This crime is listed in section
667.61, subdivision (c)(8). The circumstances specified in section 667.61, subdivision

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(e)(4) also apply because defendant committed this 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 erroneously 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 would 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 consecutive 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 victims, multiple acts with respect to each victim. Each charge
of which he stands convicted was a separate crime. And, consequently, the court will be
imposing consecutive sentences.”



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4. The court did not abuse its discretion in refusing to strike defendant’s prior
conviction.
              In explaining her refusal to strike the 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 committed 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 should 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 predator in the community. The conviction in the earlier case
was sometime in 2003, I believe. And the charges that we addressed in this case arose in
between which is not a significant period of time. It does not appear that the defendant
has prospects for a crime-free life.” Defendant 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 court 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 elegant, it appears the court misspoke
and meant the prior conviction was sandwiched 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 abusing many little girls over a substantial period
of time. It would appear that the exact sequence in which these molestations took place
would have little relevance on the question of whether the court should strike defendant’s
prior conviction.




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              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 defendant’s request to
dismiss his strike conviction absent an affirmative 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 defendant’s persistence in continuing in this
conduct over time. Even if the court was mistaken as to the exact 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 court in question must consider whether, in light of the nature
and circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, 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 convicted of one or more serious
and/or violent felonies.” (Id. at p. 161.) Based on the facts presented in this case, and
considering defendant’s 2003 conviction for similar conduct, we can hardly conclude he
“should be treated as though he had not previously been convicted.” (Ibid.)




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                                     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.




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