People v. Moya
| Docket Number | E078578 |
| Decision Date | 30 August 2023 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RANDY RAMONE MOYA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No FWV19003936. Michael A. Knish, Judge. Affirmed.
Law Office of Alissa L. Bjerkhoel and Alissa L. Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found that defendant and appellant Randy Ramone Moya sexually assaulted a child on multiple occasions when she was 11 or 12 years old, and that he had a prior strike conviction. The trial court declined to dismiss the strike prior finding under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and sentenced Moya to a total of 150 years to life.
In this appeal, Moya raises three claims: (1) the trial court abused its discretion in denying his Romero motion by failing to weigh mitigating factors as required by section 1385, Senate Bill No. 81 (Stats. 2021, ch. 721 § 1) (Senate Bill 81); (2) his sentence constitutes cruel and unusual punishment under the United States and California Constitutions; and (3) the trial court failed to instruct the jury on certain lesser included offenses. We find no merit in the first two of these arguments, and find no prejudicial error in the jury instructions, so we affirm the judgment.
In December 2019, then-12-year-old Jane Doe (born Nov. 2007) lived in a house with her mother, father, her two younger siblings, her paternal grandmother, her paternal aunt, her cousin (the paternal aunt's daughter), and Moya, who was 34 years old at the time. Doe considered Moya an uncle, and Moya has called Doe his niece, but he is more precisely the paternal aunt's ex-boyfriend and the father of Doe's cousin. Doe and her cousin did not have a bedroom, normally sharing a bunk bed that had been placed in the living room. Moya did not always spend the night, but when he did, he slept on a couch in the living room, with Doe and her cousin. Before the events of this case, Doe considered Moya someone she could confide in and someone she "looked up to."
On the night of December 3, 2019, Doe's cousin was sleeping with their grandmother in her bedroom, and Doe was getting ready to sleep in the bunk bed. Doe was wearing a "hoodie" and leggings. She was lying in bed, facing the wall, when she heard the front door of the house, which opened into the living room, open and close. Moya came up to her and told her get up because he wanted to show her something. After Doe verbally resisted getting out of bed, Moya pulled her up by her hood, "grabbed" her by the arm and legs, and put her on the couch in a semi-seated position. Moya then pulled Doe's pants and underwear down, despite her efforts to push him off. He then vaginally penetrated her, first with fingers and then with his penis. While Moya was doing so, he told Doe that if she told anybody, he would kill her and her whole family.
A short time later, Doe's mother came into the living room and saw Moya on top of Doe, both of them with pants down, and Moya moving between Doe's legs. Doe's mother started hitting Moya, but he did not stop immediately. Doe's mother began swearing at Moya and calling for Doe's father, at which point Moya got up, gathered his things, and ran out of the house. Doe's mother grabbed Doe, took her to her bedroom, and woke up Doe's father. Doe's father tried to pursue Moya, but did not catch him. Doe's mother called the police.
Doe revealed that Moya had sexually assaulted her before; she initially told police that he had done so three or four previous times, beginning around November 2019, but at trial she testified that it was five or six times, beginning in July or August 2019. Each of the prior assaults had also happened on the couch in the living room, late at night. Sometimes, Moya had picked Doe up off her bed and put her on the couch while she was asleep. Each time, Doe had tried to stop Moya by pushing or kicking him off of her and telling him to stop. Sometimes that got him to stop, sometimes it did not. Doe did not scream for help because Moya would cover her mouth. He also used threats of violence to keep her from telling anyone. Doe never told anyone about the assaults because she was afraid Moya would kill her family.
Moya was arrested and interviewed by police by the next morning. Moya initially denied any sexual contact with Doe. He said he was not having sex with Doe when her mother walked in, but rather "fixing the carpet." But he changed his story and admitted to vaginally penetrating Doe with his penis "just like, like a little bit." He claimed, however, that he did so only because Doe insisted, stating: He conceded that they had sexual contact not only on December 3, 2019, but also one other time, a day or two before. He expressed that he was "sorry" for what he did, though he continued to insist that Doe was a willing participant ("She just, she gave it up to me ....").
Forensic DNA analysis showed Doe's DNA on a swab taken from Moya's scrotum, and Moya's DNA was present on swabs taken from Doe's genitals and anus.
At trial, during a discussion of the jury instructions out of the presence of the jury, defense counsel requested that the jury be instructed on "261.5" as a lesser included offense, referring to the Penal Code section for statutory rape, section 261.5. The trial court denied the request, concluding that section 261.5 described only a lesser-related offense, on which the court could not instruct without the agreement of both sides, and the prosecution did not agree. The jury was instructed on simple assault as a lesser included offense as to all counts.
The jury found Moya guilty as charged, convicting him on five counts of aggravated sexual assault of a child. (Pen. Code,[1] § 269, subd. (a)(1) (rape, § 261, subds. (a)(2) &(6), counts 1-4) &(5) (sexual penetration, § 289, subd. (a), count 5).) In a bifurcated proceeding, the jury found true the allegation that Moya had a prior strike conviction, for a burglary (§ 459) from 2013. The trial court denied Moya's Romero motion and sentenced him to 30 years to life-15 years to life, doubled by the strike-for each of the five counts, to be served consecutively, resulting in a total sentence of 150 years to life.
Moya contends that the trial court abused its discretion in denying his Romero motion because it failed to conduct the analysis in accordance with recent amendments to section 1385 made by Senate Bill 81. This argument fails because those amendments apply to enhancements, but not to prior strike convictions under the Three Strikes law.
Whether Senate Bill 81's amendments to section 1385 apply to prior strike convictions is a question of statutory interpretation, which we review de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.)
Under section 1385, subdivision (a), the trial court "may . . . in furtherance of justice, order an action to be dismissed." This authority includes the power to "strike or vacate an allegation or finding under the three strikes law that a defendant has previously been convicted of a serious and/or violent felony ...." (People v. Williams (1998) 17 Cal.4th 148, 158.)
Effective January 1, 2022, Senate Bill 81 amended section 1385 "to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice." (People v. Sek (2022) 74 Cal.App.5th 657, 674 (italics added); see § 1385, subd. (c).) Under the amended section 1385, a sentencing court must "consider and afford great weight to evidence offered by the defendant to prove" enumerated mitigating circumstances. (§ 1385, subd. (c)(2).) "Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (People v. Sek, supra, at p. 657 (italics added).)
Thus, "[s]ubdivision (c) of section 1385 expressly applies to the dismissal of an 'enhancement.'" (People v. Burke (2023) 89 Cal.App.5th 237, 243 (Burke); see § 1385, subd. (c)(1).) "Ordinarily words used in a statute are presumed to be used in accordance with their established legal or technical meaning." (People v. Carter (1996) 48 Cal.App.4th 1536, 1540.)
The term "enhancement" has a well-established technical meaning in California law, which does not include the sentencing consequences under the Three Strikes law for a defendant who has prior strike convictions. (People v Williams (2014) 227 Cal.App.4th 733, 744 [ ]; see also Romero, supra, 13 Cal.4th at p. 527 ["The Three Strikes law . . . articulates an alternative sentencing scheme for the current offense rather than an enhancement"].) "The Legislature did not otherwise define the word 'enhancement' in section 1385." (Burke, supra, at p. 243.) "We presume the Legislature was aware of, and acquiesced in, both this established judicial definition of enhancement and the distinction between an enhancement and an alternative sentencing scheme such as the Three Strikes law." (Ibid.) "Because the statutory language is clear...
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