People v. Israel CA2/3

Filed 2/4/15 P. v. Israel CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B252966
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA081122)
v.
DAVID ISRAEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark E. Windham, Judge. Affirmed in part, reversed in part, and remanded with
directions.
David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald Engler, Acting Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.
and Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant, David Israel, appeals his conviction for lewd act on a
child under 14, with recidivist sexual offender and prior serious felony conviction
findings (Pen. Code, §§ 288, subd. (a), 667.71, 667, subds. (b)-(i)).1 He was sentenced to
state prison for a term of 55 years to life.
The judgment is affirmed in part, reversed in part, and remanded with directions.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. The charged offense.
On June 19, 2012, eight-year-old Sandra A. was riding an M.T.A. bus as part of
her second-grade class field trip. Sitting across from her was defendant Israel, who put
his bag on Sandra’s legs and started squeezing her knee with his hand. She tried to move
her leg, but “he touched it again and he didn’t stop.” Israel then took his “private part
out” and touched her knee with it. His hand was “squishing” his private part and Sandra
could feel something soft touching her knee; it felt different from his hand which had felt
hard. Sandra was scared: “I tried to scream, but . . . I couldn’t talk.”
Yadira Corona, one of the field trip chaperones, saw Israel standing in front of
Sandra and leaning up against her. Corona testified: “At one point he kind of like tilted
back and I saw his penis.” Israel was moaning, holding his penis and touching Sandra’s
knee with the tip of it. Corona walked up to Israel and hit him. He pushed her away and
tried to get off the bus. Sandra was crying and scared. Corona testified Israel was
“cussing everybody out. He said he had a knife in his pocket.” Corona could see that his
pants zipper was open.
Henry Hernandez, the bus driver, testified a woman ran toward him and shouted,
“Bus driver, bus driver, somebody was abusing a child back there. Please do not let him
out of this bus.” Then Israel came up and told Hernandez he needed to get off the bus.
Hernandez told Israel he would not open the doors, and he alerted his dispatchers that he
1
All further references are to the Penal Code unless otherwise specified.
2
needed the police. Israel told Hernandez, “Open the God damn door. You don’t know
who you’re dealing with. And you better open the door right now.”
Hernandez had stopped the bus to wait for the police and he still refused to open
the door. Israel was leaning very close to him, so Hernandez got up out of the driver’s
seat because he was afraid of getting “punched in the face sitting down.” Israel then put
his knee up against Hernandez’s groin and threatened “to rearrange [Hernandez’s]
testicles” if he didn’t open the door. Two male passengers then came up and subdued
Israel. The police arrived and arrested him. Hernandez pointed out to them that Israel’s
pants zipper was down.
Los Angeles Police Department Officer Gary Castaldo was one of the responding
officers. He noticed that Israel’s pants zipper was completely down. Castaldo spoke to
Sandra, who “was crying, she was emotional, she was somewhat hysterical, and she was
very frightened.”
2. Prior sexual offenses.
The prosecution put on evidence showing Israel had also committed the following
prior sexual offenses.
a. Erica N.
On June 12, 2001, 29-year-old Erica N. was riding a bus when she felt Israel
bumping up against her shoulder. After a while she realized he was rubbing her with his
“hard erect penis through his pants.” Erica was terrified. She leaned forward and put her
elbows on her knees so Israel could no longer touch her. She got off the bus at the next
stop.
Detective Connie Zych, who worked for the Los Angeles Police Department
transit bus division, had been on the bus during this incident. She saw Israel position
himself next to Erica and press his crotch into her shoulder. Israel had an erection and he
was using his duffel bag to conceal what he was doing.
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b. Patricia A.
In August 2000, 23-year-old Patricia A. was riding a bus when Israel sat down
next to her. He put his jacket over her leg and reached his arm under the jacket and
started touching her leg. When Patricia turned toward him, Israel “already had his zipper
down and part of his penis was out. I got scared.” After Patricia blocked him with her
hand, Israel touched her breast. Undercover police officers on the bus apprehended him.
c. Marisol T.
Sometime in August 2000, 15-year-old Marisol T. was riding a bus when Israel sat
down next to her. He had a coat over his head and he leaned against her. Marisol
thought he was drunk, so at first she didn’t pay much attention. Eventually she noticed
his coat was covering her thigh and she felt his hand moving on her inner thigh toward
her genital area. Marisol got off the bus. Officers approached her and she reported the
incident to them.
d. Isabel P.
On December 20, 1999, 28-year-old Isabel P. was riding a bus when Israel got on
and sat next to her: “I just felt a hand that started touching me on my right leg . . . like
walking fingers.” Israel was touching her “[c]lose to my leg and my stomach, my
abdomen.” Isabel stood up immediately and asked the driver to call the police. The
driver did so, but when other passengers complained about the delay, the driver opened
the doors and Israel got off.
CONTENTIONS
1. The trial court erred by refusing to vacate Israel’s Three Strikes prior.
2. The trial court did not award Israel the correct number of presentence custody
credits.
3. A child abuse prevention restitution fine imposed pursuant to section 294
should be stricken.
4. (By the Attorney General) The trial court erred by not imposing appropriate
penalties and surcharges in connection with a section 290.3 fine.
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5. (By the Attorney General) The trial court erred by not imposing appropriate
penalties and surcharges in connection with a section 288, subdivision (e), fine.
DISCUSSION
1. The trial court did not err by denying Israel’s Romero motion.
Israel contends the trial court abused its discretion by refusing to dismiss, under
the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, a prior
conviction used to double his sentence under the Three Strikes law. This claim is
meritless.
a. Legal principles.
The factors to be considered in ruling on a Romero motion were set forth in
People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the Three
Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in
reviewing such a ruling, 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.”
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation
under section 1385 is subject to review for abuse of discretion.” (People v. Carmony
(2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
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judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at pp. 376-377.) Hence, “ ‘[w]here the record
demonstrates that the trial court balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling,
even if we might have ruled differently in the first instance’ ” (Id. at p. 378.)
b. Israel’s sentencing.
According to the probation report, Israel’s record as an adult included several
misdemeanor convictions for non-sexual offenses (driving under the influence, in
January 1991; driving under the influence and driving with a suspended license, in
July 1991; battery, in July 2001); as well as convictions for two sex-related offenses
(misdemeanor indecent exposure and felony child molesting in November 2001). Israel
received a three-year prison term for the 2001 conviction.
The trial court denied Israel’s Romero motion, saying: “Under Romero there was
a period of time where the defendant did not re-offend, but the conduct is disturbing and
was repeated conduct that continued unabated until he was sentenced to prison. I can’t
see that the mitigation is such that this would qualify. The Romero motion is denied.”
c. Discussion.
Israel contends the trial court should have granted his Romero motion.2 He
acknowledges his Three Strikes prior (the 2001 felony child molesting conviction) “was
for conduct similar to that in the current offense,” but argues he has never used violence
and that “none of [his] conduct involved anything other than essentially touching over
2
The Attorney General asserts the trial court was prohibited from striking Israel’s
prior conviction for Three Strikes purposes because the jury returned a recidivist sexual
offender finding. Not so. Although a Three Strikes sentence may be imposed in addition
to a sentence under section 667.71, the trial court still has discretion to grant Romero
relief. (People v. Snow (2003) 105 Cal.App.4th 271, 283 [after choosing to apply either
section 667.61 or section 667.71, trial court “also has the discretion under section 1385”
to grant Romero motion]; see also People v. Hammer (2003) 30 Cal.4th 756, 771 [where
trial court properly imposed sentence under section 667.61, it still needed to exercise its
Romero discretion].)
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clothing.” He complains “the trial court seemed to be consumed by appellant’s prior
‘repeated conduct’ to the exclusion of all other relevant factors.” According to Israel,
“[T]his was an abuse of discretion as the Supreme Court has cautioned that, ‘While a
defendant’s recidivist status is undeniably relevant, it is not singularly dispositive.’ . . .
Thus, this undue emphasis on the extent of appellant’s past conduct was error. [¶] The
court . . . also abused its discretion in failing to carefully consider the ‘nature and
circumstances’ of the present offense . . . .” Israel also argues he “is some 52 years old
. . . [and] would not be released until he is a very old man” on the basis of “a non-violent
offense . . . which occurred 13 years prior.”
We are not persuaded by these arguments.
Contrary to Israel’s assertion the trial court relied solely on the fact his current
offense represented “repeated conduct,” the court also characterized Israel’s conduct as
“disturbing,” a description with which we agree. Israel targeted an eight-year-old girl,
sexually assaulted her by fondling her knee and then pressing his naked penis against her
leg while he caressed himself and moaned. The child was essentially trapped in her seat,
too frightened to yell for help. Also contrary to Israel’s assertions, there was violence
involved in this crime: he threatened two different witnesses with violence by telling
Corona he had a knife and by threatening to “rearrange” Hernandez’s testicles. (See Cal.
Rules of Court, rule 4.421(a)(6) [threatening witnesses is an aggravating factor].)
Advanced age is not necessarily a mitigating factor. (See People v. Strong (2001)
87 Cal.App.4th 328, 332 [“middle age, considered alone, cannot take a defendant outside
the spirit of the law; otherwise, the very factor that takes a defendant within the spirit of
the law – a lengthy criminal career with at least one serious or violent felony – would
have the inevitable consequence – age – that would purportedly take him outside it”].)
Moreover, the strike was not prohibitively remote given the other factors relied on by the
trial court to find that Israel was within the Three Strikes scheme. (See People v. Gaston
(1999) 74 Cal.App.4th 310, 321 [remoteness of 17-year-old priors insignificant in light of
defendant’s extremely long criminal history]; People v. Barrera (1999) 70 Cal.App.4th
541, 552-555 [14-year-old conviction not too remote in light of defendant’s lengthy
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criminal history].) Because Israel served a prison term for his child molesting prior
conviction, he was not on the streets for the entire time between that conviction and this
current case.
We conclude Israel’s overall record, his egregious recidivism in committing
similar sexual offenses over and over, and the disturbing nature of his latest offense
(which derives from both the victim’s extreme vulnerability and Israel’s accompanying
threats of violence to bystanders) constituted sufficiently compelling reasons for the trial
court to deny his Romero motion. (See People v. Strong, supra, 87 Cal.App.4th at p. 338
[“the overwhelming majority of California appellate courts have reversed the dismissal
of, or affirmed the refusal to dismiss, a strike of those defendants with a long and
continuous criminal career”]; see also People v. Carmony, supra, 33 Cal.4th at p. 378
[“ ‘[w]here the record demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the law, we shall affirm the
trial court’s ruling, even if we might have ruled differently in the first instance’ ”].)
We conclude the trial court did not abuse its discretion by denying Israel’s Romero
motion.
2. Presentence custody credits were incorrectly calculated.
Israel contends the trial court erred by refusing to award him any presentence
custody credits. As the Attorney General concedes, this claim has merit.
The trial court believed Israel was not entitled to any presentence custody credits
because the jury had returned a recidivist sexual offender finding (§ 667.71). However,
section 667.71 has nothing to say about conduct credits. Rather, conduct credits are
governed by section 2933.1, subdivision (a), which puts a 15 percent limit on presentence
custody credits for defendants who have been previously convicted of child molesting
under section 288, subdivision (a). (See § 667.5, subd. (c)(6).)
Hence, Israel was entitled to a total of 606 days of presentence custody credits,
consisting of 527 actual days credit, plus 79 days of conduct credit. This error must be
corrected.
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3. Restitution fine was improperly imposed.
Israel contends the trial court erred by imposing a $5,000 restitution fine under
section 294. As the Attorney General concedes, this claim has merit.
Section 294 provides, in pertinent part:
“(a) Upon conviction of any person for a violation of Section 273a, 273d, 288.5,
311.2, 311.3, or 647.6, the court may, in addition to any other penalty or restitution fine
imposed, order the defendant to pay a restitution fine based on the defendant’s ability to
pay not to exceed five thousand dollars ($5,000), upon a felony conviction, or one
thousand dollars ($1,000), upon a misdemeanor conviction, to be deposited in the
Restitution Fund to be transferred to the county children’s trust fund for the purposes of
child abuse prevention.
“(b) Upon conviction of any person for a violation of Section 261, 264.1, 285,
286, 288a, or 289 where the violation is with a minor under the age of 14 years, the court
may, in addition to any other penalty or restitution fine imposed, order the defendant to
pay a restitution fine based on the defendant’s ability to pay not to exceed five thousand
dollars ($5,000), upon a felony conviction, or one thousand dollars ($1,000), upon a
misdemeanor conviction, to be deposited in the Restitution Fund to be transferred to the
county children’s trust fund for the purpose of child abuse prevention.”
Israel was convicted of violating section 288, subdivision (a), which is not one of
the offenses enumerated in either subdivision (a) or subdivision (b) of section 294, and
therefore this fine must be stricken. In addition, the parties note the abstract of judgment
confusingly refers to his conviction as a violation of section “288(a),” which may have
engendered the error here because section 288a [illegal oral copulation] is one of the
crimes covered by section 294. The record should be corrected to clearly reflect Israel
was convicted of child molesting under section 288, subdivision (a).
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4. The trial court failed to impose mandatory penalty assessments and surcharges
related to section 290.3.
The Attorney General contends the trial court erred during sentencing by failing to
impose mandatory penalty assessments and surcharges in connection with a $500 sex
offender fine under section 290.3. This claim has merit.
Section 290.3, subdivision (a), provides in pertinent part: “Every person who is
convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to
any imprisonment or fine, or both, imposed for commission of the underlying offense, be
punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of
five hundred dollars ($500) upon the second and each subsequent conviction, unless the
court determines that the defendant does not have the ability to pay the fine.”
Because Israel had previously been convicted of child molesting, an offense
specified in section 290, subdivision (c), the trial court properly imposed a $500 fine for
his current conviction.
However, in addition to the fine itself, the trial court should have imposed a series
of additional, mandatory penalties and surcharges. Israel’s $500 sex offender fine was
subject to the following: a $500 state penalty under section 1464, subdivision (a)(1)3; a
$100 state surcharge under section 1465.7, subdivision (a)4; a $250 state court
construction penalty under Government Code section 703725; a $350 county penalty
3
Section 1464, subdivision (a), in pertinent part, provides “there shall be levied a
state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten
dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts
for all criminal offenses.”
4
Section 1465.7, subdivision (a), provides: “A state surcharge of 20 percent shall
be levied on the base fine used to calculate the state penalty assessment as specified in
subdivision (a) of Section 1464.”
5
Government Code section 70372, subdivision (a), in pertinent part, provides “there
shall be levied a state court construction penalty, in the amount of five dollars ($5) for
every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture
imposed and collected by the courts for all criminal offenses.”
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under Government Code section 760006; a $50 DNA project penalty under Government
Code section 76104.67; a $200 additional state-only penalty under Government Code
section 76104.78; and a $100 penalty to support county emergency medical services
under Government Code section 76000.5.9 (See People v. Corrales (2013)
213 Cal.App.4th 696, 702 [$150 drug program fee imposed under Health and Safety
Code section 11372.7 obligated defendant to pay $540 when seven mandatory penalty
and surcharge provisions were taken into account].)
The sum of these mandatory penalties and surcharges comes to $1,550, which
means Israel was obligated to pay $2,050. Because the sex offender penalty prescribed
by section 290.3 is subject to a defendant’s ability to pay, we will remand this matter to
the trial court for a determination of Israel’s ability to pay the sex offender fine in light of
6
Government Code section 76000, subdivision (a), in pertinent part, provides that
“in each county there shall be levied an additional penalty in the amount of seven dollars
($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or
forfeiture imposed and collected by the courts for all criminal offenses.”
7
Government Code section 76104.6, subdivision (a)(1), in pertinent part, provides
that “for the purpose of implementing the DNA Fingerprint, Unsolved Crime and
Innocence Protection Act (Proposition 69), as approved by the voters at the November 2,
2004, statewide general election, there shall be levied an additional penalty of one dollar
($1) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every
fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses.”
8
Government Code section 76104.7, subdivision (a), in pertinent part, provides that
“in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an
additional state-only penalty of four dollars ($4) for every ten dollars ($10), or part of ten
dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected
by the courts for all criminal offenses.”
9
Government Code section 76000.5, subdivision (a)(1), in pertinent part, provides
that “for purposes of supporting emergency medical services pursuant to Chapter 2.5
(commencing with Section 1797.98a) of Division 2.5 of the Health and Safety Code, in
addition to the penalties set forth in Section 76000, the county board of supervisors may
elect to levy an additional penalty in the amount of two dollars ($2) for every ten dollars
($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and
collected by the courts for all criminal offenses.”
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the mandatory additional penalties and surcharges that should have been imposed. (See
People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530-1532 [because section 1202.5
theft-related fine has “ability to pay” provision, on remand trial court must consider
associated assessments and surcharges when calculating defendant’s ability to pay].)
5. The trial court failed to impose mandatory penalty assessments and surcharges
related to section 288, subdivision (e).
The Attorney General contends the trial court erred during sentencing by failing to
impose mandatory penalty assessments and surcharges in connection with a $1,000 fine
imposed pursuant to the child molesting statute. This claim has merit.
Section 288, subdivision (e), provides, in pertinent part: “Upon the conviction of
any person for a violation of subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten
thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any
relevant factors, including, but not limited to, the seriousness and gravity of the offense,
the circumstances of its commission, whether the defendant derived any economic gain
as a result of the crime, and the extent to which the victim suffered economic losses as a
result of the crime.” The trial court imposed a $1,000 fine under this provision.
Applying the same seven statutory provisions discussed ante, the Attorney
General asserts this $1,000 fine should have been enhanced by an additional $3,100.
Presumably because section 288, subdivision (e), does not contain an express “ability to
pay” provision, however, the Attorney General does not suggest remanding to the trial
court for a further inquiry into Israel’s financial condition, as she did for the section 290.3
fine. But section 288, subdivision (e), does allow the trial court to consider “any relevant
factors” in setting the amount of the fine, which would seem to include the defendant’s
financial condition. Moreover, we have already determined this matter must be
remanded for a consideration of Israel’s ability to pay the section 290.3 fine in light of its
actual amount after accounting for the mandatory penalty assessments and surcharges.
The trial court should undertake the same analysis with regard to the section 288,
subdivision (e), fine.
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DISPOSITION
The judgment is affirmed in part and reversed in part. On remand, the abstract of
judgment must be amended to reflect a total of 606 days presentence custody credits, the
$5,000 restitution fine imposed under section 294 must be stricken, and the trial court
must determine Israel’s ability to pay the fines imposed under sections 290.3 and 288,
subdivision (e), in light of the applicable mandatory penalty assessments and surcharges,
as discussed in this opinion. The trial court is directed to prepare and forward to the
Department of Corrections and Rehabilitation an amended abstract of judgment.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
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