Filed 12/11/17 P. v. Adkison CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DALE DOUGLAS ADKISON,

Defendant and Appellant.
H044533
(Santa Clara County
Super. Ct. No. C1520781)
Defendant Dale Douglas Adkison appeals following the trial court’s denial of his Romero motion to strike his prior serious felony conviction, arguing that the court abused its discretion.
STATEMENT OF THE FACTS AND CASE
Defendant kissed six-year-old Doe on the lips as she was leaving her piano lesson at a private home where defendant was doing yard work. Doe’s mother saw defendant hold Doe “between her legs” and twirl her in the air. Defendant told Doe’s mother that Doe “was in love with him and that she was seeking out love from a man.” Doe’s mother relayed the incident to a parishioner at her church who then reported the incident to police.
Defendant was arrested on September 22, 2015. He admitted to “twirling” Doe in the air but denied kissing her. Defendant told officers that Doe told him, “I have a crush on you,” and that he felt a “closeness” to her. Defendant admitted to police that he had “an unusual attraction to young girls,” but said he was “typically attracted to girls around age 12.”
In October 2015, defendant was charged with two counts of annoying or molesting a child under the age of 18 (Pen. Code, § 647.6, subd. (c)(2)). The complaint further alleged that defendant had previously been convicted of a strike offense (§§ 667, subds. (b)-(i), 1170.12) for a lewd and lascivious act on a child under 14 (§ 288). On March 30, 2016, defendant pleaded no contest to one count of molesting a child under the age of 18, and admitted the prior strike conviction.
On February 6, 2017, the trial court denied defendant’s Romero motion to strike the prior conviction. Defendant was sentenced to four years in prison.
DISCUSSION
Defendant argues that the trial court abused its discretion in denying his Romero motion because the conduct in this case was “de minimis” and the crime that was the basis of the prior strike was remote.
Background
The probation report prepared for the sentencing hearing detailed defendant’s prior strike conviction. Between April 1991 and April 1992, defendant sexually molested his then four-year-old daughter. Defendant was not arrested or charged with any crime at the time.
When defendant’s daughter was 17 years old in 2004, defendant approached her seeking to make amends. Defendant’s daughter told police that he had contacted her about the prior molestation. Defendant admitted to police that he had sexually molested his daughter when she was four years old. Defendant was arrested on August 17, 2012.
On January 18, 2013, defendant was convicted of committing a lewd and lascivious act on a child under the age of 14 (§ 288, subd. (a)). He was sentenced to one year in jail and three years of formal probation. Defendant was still on probation when he was arrested for his crime against Doe.
On February 6, 2017, defendant filed a Romero motion seeking dismissal of his strike prior. In his motion, defendant focused on the fact that the prior molestation conduct was remote, having occurred 26 years ago. He noted that he had accepted responsibility for molesting his daughter. He also argued that the conduct in the present case was neither violent nor serious, and that he was a family man. Defendant demonstrated that he had earned a small business degree, and had professional work prospects.
In denying the motion, the court stated: “This court considers the strike prior. It was from 1991, but not adjudicated until 2013. The Court notes that [defendant] has no other history. [¶] The Court will note [the] background, character, and prospects. And he seems to have the support of his church. And he does have that entrepreneurial degree in which he intends to pursue some sort of employment. [¶] The Court notes that what is [most] troublesome is [defendant] was on probation for similar conduct, and I won’t repeat the fact because they did state it for the record. [¶] From this Court’s point of view, the victims in this matter are the most vulnerable of our society. They are children and need protection most. They are not always articulate and cannot always voice their concerns, but the fact that this conduct, while on the lower end of the scale, happens at the time while being supervised is simply troubling to this Court. I believe that, based on all of the information that is known to this Court, he falls squarely within the spirit of the three strikes law and the Court does decline to strike the strike in this matter. [¶] With regard to sentencing, the Court will note that there is an early plea. [¶] The Court will note that the only aggravator is that he was on probation for similar conduct. For that reason, the Court will select the mitigated term.”
Legal Principles and the Standard of Review
“As the Supreme Court explained in Romero, section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the Three Strikes law, in the interests of justice.” (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213, citing Romero, supra, 13 Cal.4th at pp. 529-530.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation . . . 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
The purpose of the Three Strikes law is “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses.” (§ 667, subd. (b).) The Three Strikes law “establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,” unless the trial court determines the defendant falls outside the scheme’s spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 337.) “[E]xtraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack.” (Id. at p. 338.) Thus, the Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm.” (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
“The trial court is not required to state reasons for declining to exercise its discretion under section 1385.” (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) The trial court “is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).)
A trial court’s decision not to strike a prior conviction allegation is reviewed under the abuse of discretion standard. (Carmony, supra, 33 Cal.4th at p. 371.) “Under that standard an appellant who seeks reversal must demonstrate that the trial court’s decision was 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. Where 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.” (Myers, supra, 69 Cal.App.4th at pp. 309 310.)
Here, the trial court’s decision to deny defendant’s motion was based on its consideration of all of the relevant facts and a proper exercise of discretion. The strike conviction, while based on remote conduct, also involved a young, vulnerable victim. In addition, the remoteness of the strike prior is only one of many factors the court may consider in determining if the prior will be stricken. (See People v. Philpot (2004) 122 Cal.App.4th 893, 906 [although strike priors were remote, the court did not abuse its discretion in denying Romero motion].) While the prior conduct in this case was remote, the conviction was not, and defendant was on probation for that conviction when he committed the crime in this case. The fact that defendant molested a child while he was on probation for similar, albeit more serious, conduct is “a strong indication of unwillingness or inability to comply with the law.” (Ibid.)
Defendant argues that the court should have granted the motion because the conduct in his case was de minimis, implying that it was a relatively minor felony. While it is true that a court could “be justified in striking prior conviction allegations with respect to a relatively minor current felony,” it does so “while considering those prior convictions with respect to a serious or violent current felony.” (People v. Garcia (1999) 20 Cal.4th 490, 499.) Here, defendant admitted that he had a sexual interest in children, and kissed Doe believing that Doe was in love with him. Defendant also twirled Doe in the air while holding her between her legs. These acts are not a minor felony, nor are they de minimis.
Finally, defendant argues that the court’s denial of his Romero motion “undermined the will of the voters in passing Proposition 57.” Proposition 57 requires that a nonviolent felony offender receive early consideration for parole “after completing the full term for his or her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1).) Defendant points to the fact that here, the court sentenced him to two years for the crime itself, and he already had three years of credit at the time of sentencing. Therefore, defendant argues, under Proposition 57 he had already served the “full term for [his] primary offense” and would have been eligible for early release at the time of sentencing. (Ibid.) As a result, the denial of the Romero motion required defendant to serve one more year in prison and was not consistent with Proposition 57.
Defendant provides no authority for the argument that in passing Proposition 57, the voters intended to alter the trial court’s discretion in determining whether to strike a defendant’s prior strike conviction. Moreover, defendant’s eligibility for release was not a factor the court was required to consider in exercising its discretion to strike the prior.
We find that the trial court did not abuse its discretion in denying defendant’s Romero motion. The record demonstrates that the court considered relevant factors and properly determined that the prior serious felony conviction should be stricken. The court’s decision was neither “irrational” nor “arbitrary.” (Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.






Premo, Acting P.J.





WE CONCUR:






Bamattre-Manoukian, J.








Grover, J.