People v. Rowen CA3

Filed 2/8/24 P. v. Rowen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C097641

Plaintiff and Respondent, (Super. Ct. No. 21CF05877)

v.

MARLEY PATRICK ROWEN,

Defendant and Appellant.

Defendant Marley Patrick Rowen pled no contest to two sexual offenses against a victim under the age of 14 years. Defendant appeals the judgment, arguing we should reverse and remand for a new sentencing hearing because counsel provided ineffective assistance by (1) failing to raise childhood trauma as a mitigating circumstance and (2) failing to correct the trial court’s misstatement of fact. We disagree and will affirm the judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant pled no contest to lewd and lascivious conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (a))1 and to forcible lewd conduct with a child under the age of 14 years (§ 288, subd. (b)(1)). The trial court dismissed the remaining charges and enhancements. The probation report contains the factual basis for defendant’s plea. Over the course of almost two years, defendant sexually abused two of his minor grandchildren on several occasions. The abuse started when the grandchildren were living with him. Defendant’s plea indicates he understood that he may still be required to serve the maximum sentence of 18 years and the terms for both convictions may be sentenced consecutively. The trial court indicated that defendant did not stipulate to the existence of aggravating factors nor did a jury find any aggravating factors to be true. Defendant stipulated that “there may be facts in mitigation or aggravation that are not yet plead or proven in the police reports or probation report.” The probation report also referenced defendant’s stipulation from the plea and indicated that the trial court could consider aggravating factors at sentencing, which included, among other things, defendant’s two prior misdemeanor sexual offense convictions. At sentencing, the trial court read and considered the probation report and character letters submitted on defendant’s behalf and heard argument from both the prosecutor and defense counsel. The prosecutor argued the trial court should sentence defendant to the upper term because defendant had a prior history of sexual offenses, abused a position of trust with the two victims, had the opportunity to participate in treatment programs for sex offenders in the past, and defendant’s statements in the probation report indicated that he blamed the victims who were minors at the time he