Opinion
E067675
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. LONDALE ANDREW HAYNESWORTH, Defendant and Appellant.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston-Bergman and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1404166) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston-Bergman and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Londale Andrew Haynesworth guilty of one count of sexual penetration of a person under 18 years old (Pen. Code, § 289, subd. (h)). The jury was unable to reach a verdict on a second count of sexual penetration of a person under 18 years old, and the trial court later dismissed that count at the People's request. In a bifurcated proceeding, the trial court found true that defendant had suffered a prior serious juvenile adjudication for voluntary manslaughter that qualified as a prior strike (§§ 667, subd. (e)(1), 1192.7, subd. (c)(1)). After the trial court denied defendant's motion to dismiss his prior strike conviction, defendant was sentenced to a total term of four years (the middle term of two years doubled) in state prison with credit for time served. Defendant's sole contention on appeal is that the trial court abused its discretion in denying his motion to dismiss his prior juvenile strike conviction. We find no abuse, and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated. --------
II
FACTUAL BACKGROUND
Defendant's daughter (the victim), who was 17 years old at the time, testified that the night of October 4, 2014, started off as a normal night. Defendant came home from work at around 5:00 p.m. At that time, the victim was watching television with her stepmother.
Soon after, the victim went upstairs, showered, and went to her bedroom to take a nap. Before going to sleep, the victim closed her bedroom door. During her nap, the victim heard the bedroom door open. She thought it was her little sister, who was three years old at the time, because she liked to climb into bed with the victim. At some point, the victim felt someone come over to her side of the bed and lie in bed with her. She was facing the opposite direction. After a few minutes the person moved closer to her. The victim soon realized the person in bed was defendant. Defendant pulled down the victim's leggings and underwear to her knees. Defendant then digitally penetrated the victim's vagina with his finger. After about 10 to 15 minutes, defendant removed his finger and moved closer to the victim. The victim could feel defendant's erect penis against her buttocks, near her vagina. The victim remained frozen with fear until she thought defendant might go further with his actions. The victim then stood up, left her bedroom, and locked herself in the bathroom. The victim did not call out for help because she was scared, and only her three-year-old sibling was home at that time.
While in the bathroom, the victim texted her cousin to come and pick her up. When her cousin asked why, the victim told her that she would tell her why after she picked her up. After exchanging texts about the reason, the victim eventually told her cousin "My dad touched me." The victim's cousin asked in what way, and the victim told her that he touched her "na-na," which meant vagina. The victim's cousin told her mother and stepfather and headed over to the victim's house. The victim's cousin recalled that a few months earlier, defendant had grazed his hand over her thigh while he, the victim, and the victim's cousin had been watching a movie. The victim's cousin, who was 16 years old at the time, became very uncomfortable and left.
In addition to contacting her cousin, the victim also contacted her mother. The victim sent texts that told her that they needed to talk and that she was not going to stay at her father's anymore because she was uncomfortable. She also described what defendant had just done, including the fact that he tried to put his penis inside her vagina before she jumped up and ran away.
Defendant unlocked the bathroom door from the outside and came into the bathroom. He immediately started apologizing to the victim, claiming that he had been working so many hours, had not gotten a lot of sleep, and did not know what he was doing. He suggested that he thought she was his wife. The victim pointed out that defendant had done this to her once before, when she had been sleeping in her room. She did not tell anyone at that time because she did not want defendant to get into trouble since he was her best friend. While they were still in the bathroom, defendant heard the victim's stepmother come home and said that they had to tell her. He called the victim's stepmother upstairs and met in the victim's room. Defendant told the victim's stepmother what he did and that he "messed up." The victim's stepmother responded, "no, no, you didn't." "[N]o, he didn't do that."
Defendant also talked to the victim's mother. The victim's mother recalled that defendant kept saying, "I fucked up." The victim's mother told him that he did not "fuck up" but got caught. Defendant tried to scare the victim's mother by telling her that she would have to come from Berkeley, where she lived, to Victorville, where defendant lived, to testify.
When defendant learned that the victim had contacted her cousin, he became mad at her because he wanted it to stay in the family. He kept saying, "You shouldn't have done that, you shouldn't have told them." The victim's maternal grandmother and maternal uncle were also contacted and her maternal uncle came over to pick up the victim.
Police officers, the victim's cousin, and others all arrived at the same time. After speaking with the officers, the victim went to the hospital for a SART exam and consistently conveyed what defendant had done. Officers also interviewed defendant. Defendant acknowledged that the victim was an honest person and he had no reason to doubt her. He also did not think she had a reason to lie. Defendant explained to the interviewing officer that he got home, drank a beer, smoked a cigarette, and went straight to bed. In the five- to 10-minute interview, defendant repeatedly told the interviewing officer that he was knocked out with fatigue and did not remember anything after crashing in his bedroom until he heard the bathroom door slam. During the interview, defendant appeared awake and did not have any problem communicating with the officer. Defendant's hands were also swabbed for DNA. DNA consistent with the victim's was detected.
At trial, defendant testified on his own behalf. He explained that he had a great relationship with the victim and denied knowingly touching her. He suggested he may have thought she was the victim's stepmother. Ultimately, defendant denied ever touching the victim or the victim's cousin.
Defendant's long-time friend also testified on behalf of the defense. Defendant's friend explained that he had observed the victim and the victim's cousin while the police officer was responding to the report of sexual assault and saw them laughing and giggling. He also did not think defendant was the type of person who would do so such a thing.
Defendant's wife (the victim's stepmother) also testified. She recalled that night. She acknowledged she left the house for errands after both defendant and the victim had gone upstairs and when she returned, defendant said that he had something to tell her. The victim appeared upset and mad, and defendant and the victim both started telling her what happened. The victim also told her about the earlier incident, which she said occurred a few weeks before. The victim's stepmother asked the victim why she did not tell her when it happened. The victim's stepmother stated that she would not continue to live with defendant if she thought he had done what the victim said. The victim's stepmother agreed that she and the victim were not the same size, shape, or weight.
III
DISCUSSION
Defendant contends the trial court abused its discretion in denying his motion to dismiss his prior juvenile adjudication for voluntary manslaughter because it mistakenly determined that defendant's current offense was a " 'strike offense' " and involved " 'nonconsensual conduct,' " and because he had been a good father and family provider. We disagree.
Before sentencing, defense counsel moved to dismiss defendant's prior juvenile adjudication for voluntary manslaughter pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) on the ground that it was aberrational, defendant was 17 years old when the offense was committed, and defendant had since lived a productive life after being honorably discharged from the Youth Authority at age 25. The People opposed the motion, primarily based on the gravity of both of defendant's offenses. The prosecutor pointed out that defendant was an active participant in a shooting death, and explained that defendant and his cohort, who had been in the process of driving away, instead chose to get out of the vehicle and open fire into a crowd of 40 people. Defendant's cohort shot and killed one person. Although defendant did not strike anyone, he fired his gun at least three times. Regarding the instant offense, the prosecutor noted that defendant had digitally penetrated the vagina of his biological daughter for five to 10 minutes. The prosecutor also stated that, while defendant's offenses were not numerous, the quality and severity of his offenses were catastrophic, and irreparably shattered the lives of his victims and their loved ones.
After noting that it had read the parties' motions and "considered all of the issues with the understanding and realization that this court is vested with the discretion to strike the prior," the court observed that, in exercising its discretion, it considered defendant's age at the time of the voluntary manslaughter, the length of time that he was free from custody, and defendant having led a productive life with his family. However, the court concluded, "given the nature of that offense, being a very serious offense, there was a death involved, and this current offense being a serious felony, the Court is not going to use its discretion in striking the strike prior."
Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to dismiss a prior strike conviction, the trial court "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. . . ." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
The trial court's decision not to dismiss a prior strike conviction is reviewed under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 371, 374.) An abuse of discretion is established by demonstrating the trial court's decision is "irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the court's decision will not be disturbed on appeal. (Ibid.) As such, "a trial court will only abuse its discretion in failing to strike a prior felony conviction . . . in limited circumstances," such as where it did not realize it had discretion to do so, where it "considered impermissible factors in declining to dismiss" the conviction, or where " 'the sentencing norms [of the Three Strikes law] . . . produce[] an "arbitrary, capricious[,] or patently absurd" result' under the specific facts of a particular case." (Carmony, at p. 378.)
In the present case, the record clearly shows that the trial court prudently, thoroughly, and expressly considered all of the appropriate factors before denying defendant's motion to dismiss his prior juvenile adjudication. Therefore, the court did not act arbitrarily or capriciously. In arguing otherwise, defendant suggests the trial court improperly relied on two factors in declining to dismiss his prior strike. Specifically, he claims the court erroneously determined his current conviction to be a " 'serious felony,' " as defined by sections 667.5 and 1192.7, when, in fact, sexual penetration of a minor is a "wobbler," punishable as either a misdemeanor or a felony. Defendant further argues that the court erroneously believed the current offense involved " 'nonconsensual conduct.' " Defendant misconstrues the record.
While the trial court stated defendant's current offense was a "serious felony," there is no indication in the record to suggest the court was finding the offense qualified as a serious felony within the meaning of sections 667.5 and 1192.7. Rather, a thorough review of the record supports the court's conclusion that the nature and the circumstances of the offense defendant committed were serious. Defendant entered his biological daughter's bedroom while she slept, lay close to her, and digitally penetrated her vagina for five to 10 minutes while having an erection. As defendant notes, while nonforcible section 289 offenses do not fall within the definition of a serious or violent felony, as those terms are defined in sections 667.5 and 1192.7, the nature and circumstances of defendant's crime were serious. The trial court did not expressly mention these provisions at the time it ruled on defendant's motion to dismiss his prior strike or at any time during the sentencing hearing. In addition, a trial court is presumed to know and follow the law. (See People v. Thomas (2011) 52 Cal.4th 336, 361.) Moreover, neither counsel sought to correct the court when it described the nature of the "current offense being a serious felony." Consequently, it is not reasonable to interpret the trial court's use of the word "serious," a common word to describe events, as described in sections 667.5 and 1192.7.
Similarly, the court's assessment that defendant's digital penetration of his daughter's vagina was not consensual was also correct. Although the issue of consent "was never explored" in the victim's testimony, as defendant notes, a reasonable interpretation of the record reveals defendant's actions were nonconsensual. The victim was asleep when defendant initiated his sexual assault and she remained frozen with fear until she thought he might go further with his actions and rape her. The victim then locked herself in a bathroom and reported defendant's sexual assault. In any event, the court made the statement, "Here we're dealing with nonconsensual conduct," after denying defendant's Romero motion and during sentencing discussions on aggravated and mitigated factors. As such, the court's "nonconsensual conduct" comment was not a basis for denying defendant's motion to dismiss his prior juvenile adjudication.
Defendant's reliance on People v. Cluff (2001) 87 Cal.App.4th 991 to support his position is misplaced. In Cluff, the defendant failed to complete his annual sex offender registration within five days of his birthday. (Id. at p. 994.) Characterizing the defendant's offense as "the most technical violation" it had seen of the sex offender registration requirements, the appellate court held the trial court abused its discretion when it denied the Romero motion. (Cluff, at p. 994.) The court found no intent to deceive or evade law enforcement, no dispute that the defendant had consistently registered in jurisdictions where he lived, and no unwillingness by the defendant to cooperate with police. (Id. at p. 1001.) Also, the defendant had not reoffended since his release from prison, and a court-appointed psychologist testified that, with proper probation supervision and treatment, he would probably not reoffend. (Id. at p. 999.) We see no comparison between the technical, nonserious failure to register in Cluff and defendant's digital penetration of his biological daughter's vagina. Defendant's conduct was not merely a "technical violation" but, in the trial court's words, a "serious" offense.
Defendant's arguments lack merit and are not supported by the record. As explained, the court properly evaluated the entirety of the record. The court was well aware of its discretion and appropriately applied the factors outlined in Williams. The court's comments did not demonstrate that it applied the wrong law or misunderstood the scope of its discretion when it denied defendant's motion to dismiss his prior juvenile strike adjudication. Accordingly, the court did not abuse its discretion when it denied defendant's request to dismiss his prior juvenile adjudication for voluntary manslaughter.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.