Filed 1/10/18 P. v. Beckett CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

MATHEW HAYES BECKETT,

Defendant and Appellant.


E067152

(Super.Ct.No. 16CR031512)

OPINION


APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On September 30, 2016, a jury convicted defendant and appellant Matthew Hayes Beckett of evading a peace officer with willful disregard under Vehicle Code section 2800.2, subdivision (a) (count 1). In a bifurcated trial, the jury also found true that defendant had a prior strike conviction and had served two prior prison terms.
On October 31, 2016, the trial court sentenced defendant to state prison for eight years, consisting of the upper term of three years, doubled pursuant to the “Three Strikes” law, plus two years for his prior prison terms. The trial court also imposed fines and fees.
On November 1, 2016, defendant filed a notice of appeal.
B. FACTUAL HISTORY
On March 14, 2016, at approximately 1:30 p.m., defendant was spotted, by La Paz County Sheriff’s Department Sergeant Stephen Maya, driving a stolen truck in La Paz County, Arizona. When Sergeant Maya activated his lights and siren, defendant rapidly accelerated and began pulling away from the sergeant, who was driving approximately 50 miles per hour. During this portion of the pursuit, defendant frequently drove in the center median, causing dust and debris to fly into the air, and passed other vehicles after crossing the double-yellow line with oncoming traffic.
When defendant entered California, his truck fishtailed, causing him to drive into a post office parking lot. Sergeant Maya positioned his vehicle to block defendant from driving back onto the roadway. When the sergeant exited his vehicle, defendant placed his truck in reverse and backed up a few feet before placing it in drive. Defendant quickly accelerated towards the sergeant’s vehicle. To avoid being hit, Sergeant Maya placed his vehicle into reverse and backed up just in time to avoid a collision with defendant.
Defendant then continued back onto the roadway, accelerating up to 100 miles per hour while repeatedly crossing the double-yellow line into oncoming traffic. Sergeant Maya discontinued his pursuit because it was too dangerous. The sergeant tracked defendant’s truck from a distance. Eventually, traffic cleared and Sergeant Maya reengaged in the pursuit. Defendant got off the roadway and entered the desert, leading Sergeant Maya on a 60- to 70-mile an hour pursuit until defendant high-centered his truck, causing it to be immobilized and all four fires to be flat. The sergeant’s vehicle suffered two flat tires as well. Defendant exited his truck and tried to flee; he was apprehended. The total pursuit went on for approximately 17 miles.
Walter Taylor, the owner of the truck, testified. Taylor stated that on March 14, 2016, he gave defendant permission to drive the truck to defendant’s girlfriend’s house, which was about one and a half miles away from Taylor’s home in Yucca Valley, San Bernardino County. He never gave defendant permission to drive the truck to Arizona or anywhere other than defendant’s girlfriend’s house.
DISCUSSION
A. THE TRIAL COURT PROPERLY DENIED DEFENDANT’S ROMERO MOTION
Defendant contends that the trial court abused its discretion in denying his Romero motion. For the reasons set forth below, we find that the trial court properly denied defendant’s motion.
1. PROCEDURAL HISTORY
Prior to the sentencing hearing, defense counsel filed a Romero motion seeking to strike defendant’s prior strike conviction for sentencing purposes. Counsel argued that the trial court should exercise its discretion and strike defendant’s 2014 attempted residential burglary conviction because: (1) defendant accepted responsibility for his actions; (2) he intended to lead a steady and supporting life for his family after being released from custody; (3) his two-year-old strike did not fairly exemplify the person he is; and (4) punishment under the Three Strikes law would be disproportionate to the severity of the current offense.
The People filed opposition, arguing that defendant had a lengthy criminal history beginning from childhood with an increasing pattern of violence, resulting in arrests for domestic violence, robbery, and burglary. Moreover, defendant had not shown any remorse for his actions, the 2014 attempted residential burglary conviction was recent, and defendant had just been recently released from custody prior to committing the current offense.
At the hearing on the motion, both parties reiterated the arguments in their papers. The trial court stated that it had reviewed the probation report; defendant’s conduct in the present case was serious, and his lengthy and escalating criminal history placed him within the spirit of the Three Strikes law. The court denied defendant’s Romero motion.
The probation report recommended a sentence of eight years in state prison; the trial court adopted this recommendation.
2. LEGAL HISTORY
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that a trial court has discretion to dismiss Three Strike prior felony conviction allegations under Penal Code section 1385. (Romero, at pp. 529-530.) We review the denial of a Romero motion to strike for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375, 377.) We ground our inquiry in two well-established principles. First, defendant bears the burden of showing that the trial court’s decision was “irrational or arbitrary,” and we will presume the trial court “ ‘acted to achieve the legitimate sentencing objectives’ ” should he fail to make the necessary showing. (Id. at pp. 376-377.) Second, we will not reverse the trial court’s order if all defendant shows is that reasonable people might disagree about its propriety. (Id. at p. 377.) “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.” (Ibid.) Phrased differently, “ ‘[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.)
To achieve greater unanimity in the statewide treatment of repeat offenders, the Three Strikes law purposefully limits a trial court’s discretion in sentencing recidivist defendants. (Carmony, supra, 33 Cal.4th at p. 377.) The touchstone of the Romero analysis is “ ‘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.’ ” (Carmony, at p. 377) No abuse of discretion occurs when the trial court carefully considers and balances factors establishing the “ ‘entire picture’ ” of the defendant. (In re Saldana (1997) 57 Cal.App.4th 620, 626-627.)
3. ANALYSIS
In this case, applying the deferential abuse of discretion standard we cannot find that the trial court abused its discretion in denying defendant’ Romero motion.
First, the current offense involves a 17-mile, high-speed pursuit; defendant endangered the lives of numerous people, including those in the oncoming cars he encountered while he repeatedly crossed the double-yellow lines in order to pass slower cars, and Sergeant Maya, who defendant tried to ram with his truck in order to escape apprehension. Although the current offense is not considered a violent or serious felony, and no one was injured during the pursuit, defendant still endangered the lives of numerous innocent people and caused serious damage to the truck and Sergeant Maya’s car. Moreover, the fact the current offense was nonviolent does not mandate the granting of a Romero motion. (See People v. Strong (2001) 87 Cal.App.4th 328, 344 [reversed order granting Romero motion based on nonviolent nature of current offense because “the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law”] see also People v. Poslof (2005) 126 Cal.App.4th 92, 108-109 [even though current crime, failing to register as sex offender, was nonviolent, denial of Romero motion was not an abuse of discretion]; People v. Gaston (1999) 74 Cal.App.4th 310, 321 [although current crime of car theft was “not as serious as many felonies,” it was “far from trivial”].) Additionally, in this case, defendant was on probation at the time of the current offense. Based on this information and the underlying facts of this case, the trial court could reasonably conclude that defendant was unwilling to live within the letter of the law, even while on probation. Therefore, the nature of the current offense supports the trial court’s denial of defendant’s Romero motion.
Second, defendant suffered a prior strike. In October of 2014, less than two years from the current offense, defendant was convicted of attempted residential burglary. Numerous cases have concluded that strikes much more temporally remote supported the trial court’s denial of a defendant’s Romero motion, especially when, like defendant, defendant had a long criminal history. (People v. Williams (1998) 17 Cal.4th 429, 163 [13 years between strike and present offense “not significant” because defendant “did not refrain from criminal activity during that span of time, and he did not add maturity to age”]; People v. Gaston, supra, 74 Cal.App.4th at pp. 320-321 [remoteness of strike priors not significant in light of “unrelenting record of recidivism” and failure to lead crime-free life in intervening years].)
Third, defendant did not live a law-abiding life. On February 10, 2003, when defendant was approximately 17 years old, he committed a simple battery to start his juvenile criminal career. Defendant committed first degree burglary four months later, and another simple battery five months after that. Defendant then began his adult criminal career in August of 2006, after his release from juvenile hall in mid-2004. He first committed vandalism of a telephone/power line and was sentenced to 270 days local custody, followed by three years of probation. In 2008, he violated probation and was sentenced to another 365 days local custody before being granted probation a second time. Shortly after being released, defendant once again violated probation. This time, he was sentenced to state prison for two years and was released around mid-2010. In July and September 2012, defendant was convicted of possession of a stolen vehicle and grand theft, and was sentenced to three years four months. He was released early in 2014, and in June of that year, he committed his current strike offense and an attempted residential burglary. The trial court sentenced defendant to six months local custody, followed by three years of probation. Defendant was on probation when he committed the current offense. In sum, defendant’s criminal record indicates that he, now at age 30, has led a constant and escalating life of crime. He has had numerous opportunities to conform his conduct with the law but has repeatedly chosen otherwise. Therefore, the nature of defendant’s criminal history also supports the trial court’s denial of his Romero motion.
Lastly, although defendant point out that, during sentencing, he admitted to having a history of alcoholism and drug abuse, and requested rehabilitation, that does not take defendant out of the spirit of the Three Strikes law. “[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) In this case, the record indicates defendant has been abusing drugs and alcohol for a considerable time. However, he has never sought treatment until now, and has no material prospects after being released. As noted above, defendant has lead a continuous life of crime even though he has had numerous opportunities to amend his conduct, including acts of clemency by the court.
In conclusion, given the numerous factors supporting the trial court’s ruling, we cannot say that the court acted in an arbitrary, capricious, or patently absurd manner in denying defendant’s Romero motion, even if reasonable minds may disagree. (People v. Bishop, (1997) 56 Cal.App.4th 1245, 1249-1250.)
B. THE TRIAL COURT PROPERLY SENTENCED DEFNDANT TO THE UPPER TERM
Defendant contends that the trial court abused its discretion in sentencing him to the upper term. We disagree.
1. PROCEDURAL BACKGROUND
After the trial court denied defendant’s Romero motion, defense counsel requested that defendant be sentenced to the lower term of 16 months. The prosecutor responded by arguing that the trial court should follow the probation officer’s recommendation of the upper term, noting that defendant’s conduct risked the lives of many people. The trial court sentenced defendant to the upper term after finding numerous factors in aggravation, including that the present offense risked great bodily injury, defendant’s numerous prior convictions and increasing seriousness, his prior prison terms, and his previous unsatisfactory probation performance.
2. LEGAL BACKGROUND
A trial court’s sentencing decision rests within its broad discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval); see also § 1170, subd. (b) [“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court”].) “ ‘The 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.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) A reviewing court cannot substitute its judgment for that of the trial court, nor reverse the trial court’s discretionary sentencing decision merely because reasonable people might disagree. (Id. at p. 978.)
A trial court abuses its discretion only if it “relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Sandoval, supra, 41 Cal.4th at p. 848.) An upper term sentence may be based upon “any aggravating circumstance that the court deems significant” or any other circumstance, even if it is not enumerated in California Rules of Court rule 4.421, so long as it is “ ‘reasonably related to the decision being made.’ ” (Sandoval, at p. 848, quoting Cal. Rules of Court, rule 4.408(a).) A single valid factor is enough to justify imposition of an aggravated term. (See People v. Black (2007) 41 Cal.4th 799, 813, overruled on another ground in Cunningham v. California (2007) 549 U.S. 270, 293.)
3. ANALYSIS
Defendant acknowledges one aggravating factor is sufficient to support a trial court’s upper-term sentencing decision. In this case, numerous factors in aggravation were listed in the probation report, which formed the basis for the trial court’s sentencing decision. First, it is undisputed that defendant’s conduct risked the lives of many when he repeatedly crossed double-yellow lines to pass other vehicles with oncoming traffic. (Cal. Rules of Court, rule 4.421(a)(1).) Second, defendant used a deadly weapon, a vehicle, to try to ram Sergeant Maya’s vehicle and escape at high rates of speed. (Cal. Rules of Court, rule 4.421(a)(2).) Third, as discussed above, defendant’s prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous. (Cal. Rules of Court, rule 4.421(b)(2).) Fourth, defendant has served, not just one, but two prior terms in prison or county jail under section 1170, subdivision (h). (Cal. Rules of Court, rule 4.421(b)(3). Fifth, defendant was on probation when the current offense was committed. (Cal. Rules of Court, rule 4.421(b)(4).) Lastly, defendant’s prior performance on probation was unsatisfactory given the fact that he has violated probation on at least three occasions. (Cal. Rules of Court, rule 4.421(b)(4).) Defendant’s poor performance on probation alone is sufficient to support the upper term sentence. (Sandoval, supra, 41 Cal.4th at p. 848; People v. Steele (2000) 83 Cal.App.4th 212, 226.) If one factor in aggravation is enough to support a trial court’s upper term sentencing decision, we cannot say that the trial court acted in an arbitrary, capricious or patently absurd manner in sentencing defendant to the upper term in this case—when he had six aggravating factors and no mitigating factors. (People v. Black, supra, 41 Cal.4th at p. 813; Sandoval, at p. 847.)
Defendant, however, contends that the trial court abused its sentencing discretion because: (1) previous settlement offers in the case were considerably lower than eight years; (2) the current offense was not more serious than his prior strike offense; (3) no one was injured; and (4) policy goals would have been accomplished with a midterm or lower-term sentence. Even if defendant’s contentions are true, we discern no abuse of discretion because, as noted above, defendant has numerous factors in aggravation that support the trial court’s decision to sentence him to the upper term. We discern no abuse of discretion.
C. THE TRIAL COURT PROPERLY IMPOSED RESTITUTION AND PAROLE REVOCATION FINES
Defendant contends that the trial court abused its discretion in imposing a $6,400 restitution fine and a parole revocation fine because: (1) the amount was in excess of the formula provided in section 1202.4, subdivision (b)(2); and (2) it constituted an excessive fine under the Eighth Amendment.
1. PROCEDURAL BACKGROUND
During the sentencing hearing, the trial court imposed a $6,400 restitution fine under section 1202.4, and a $6,400 parole revocation fine under section 1202.45. Defense counsel did not object.
2. LEGAL BACKGROUND
Under section 1202.4, subdivision (b), the trial court must impose a restitution fine for every person convicted of a crime unless it finds “compelling and extraordinary” reasons for not doing so. Such statute vests the trial court with broad discretion to set restitution fines in any amount between $300 and $10,000, “commensurate with the seriousness of the offense.” (§ 1202.4, subd. (b)(1); People v. Urbano (2005) 128 Cal.App.4th 396, 405 (Urbano).) The trial court is not required to hold a hearing or state its findings for the record unless it declines to impose the fine. (§ 1202.4, subds. (b) & (d); People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379-1380.)
In determining the amount of the restitution fine, “the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime.” (§ 1202.4, subd. (d).) Moreover, although not required to do so, the trial court may use the statutory formula of $300 “multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted,” to calculate the amount of the fine. (§ 1202.4, subd. (b)(2); Urbano, supra, 128 Cal.App.4th at p. 406.) The trial court, however, may not include in the “permissive statutory formula” any count for which the sentence is stayed under section 654. (People v. Le (2006) 136 Cal.App.4th 925, 932-933.)
With regard to parole revocation fines, “[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount.” (§ 1202.45, subd. (a).)
The sentencing court has wide discretion in setting the amount of the restitution fine and is not required to make express findings or state its reasons on the record. (Urbano, supra, 128 Cal.App.4th at pp. 405-406; People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798.) The trial court’s determination is reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Vasquez (2010) 190 Cal.App.4th 1126, 1136.) A trial court generally abuses its discretion when it rules in an arbitrary, capricious, or absurd manner, or outside the bounds of reason of the particular law being applied, resulting in a miscarriage of justice. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
The federal and state constitutions prohibit the imposition of excessive fines. (U.S. Const., 8th Amend.; Cal. Const., Art. I, § 17.) “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations] . . . [A] punitive [fine] violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S. 321, 335; see Urbano, supra, 128 Cal.App.4th at p. 406.) Under the California Constitution, “the amount of the fine must find support in the record.” (People v. Gangemi, supra, 13 Cal.App.4th at p. 1798.) “[W]hen deciding the amount of the fine to be imposed, the trial court may properly consider any relevant factors, including those aggravating and mitigating factors used in imposing a prison term,” as well as those items specified in section 1202.4. (Gangemi, at p. 1799.)
3. ANALYSIS
The People contend that defendant forfeited this issue on appeal because he failed to object “to the imposition of the restitution fine or the parole revocation fine.” Defendant, however, contends that if he has forfeited this claim, he was rendered ineffective assistance of counsel. We need not address either the forfeiture or the ineffective assistance of counsel issue because defendant’s claim fails on the merits.
First, we note that the formula provided in section 1202.4, subdivision (b)(2), is permissive, not mandatory. In his reply brief, even defendant “does not dispute that the court had the authority to impose a restitution fine and corresponding parole revocation fine.” He simply asserts that “the amount so imposed was not commensurate with the seriousness and gravity of the offense.” We disagree. In this case, under the formula, the restitution fine would be calculated to $2,400 ($300 x 8 years). (§ 1202.4, subd. (b)(2).) However, the only requirement for imposing a restitution fine is a consideration of certain factors, including but not limited to, “the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime.” (§ 1202.4, subd. (d).) The statute vests the trial court with broad discretion to set restitution fines in any amount between $300 and $10,000, that are “commensurate with the seriousness of the offense.” (§ 1202.4, subd. (b)(1); Urbano, supra, 128 Cal.App.4th at p. 405.)
In this case, the restitution fine and parole revocation fine were under the $10,000 maximum limit. Moreover, although the trial court did not state a reason for imposing the fine, which it is not required to do under the statute, it can reasonably be inferred by the court’s sentencing decision to impose the upper term and its previous finding regarding the seriousness of the offense, that the trial court considered the relevant factors and found $6,400 to be “commensurate with the seriousness of the offense.” There is nothing in the record to suggest that the court abused its discretion in imposing a restitution and parole revocation fine in this amount.
Second, the restitution and parole revocation fines were not unconstitutionally excessive in light of defendant’s conduct. Here, as set forth, ante, defendant led officers on a 17-mile high-speed pursuit during which he tried to ram Sergeant Maya’s vehicle, and repeatedly passed other cars while driving in the opposite lane with oncoming traffic; defendant endangered the lives of many. At the conclusion of defendant’s high-speed pursuit, he drove 60 to 70 miles per hour off-road, causing all four tires to pop and the truck to be immobilized. Given defendant’s underlying conduct, including the lives he endangered and the damage he caused to the truck, we cannot find that the restitution fine or the parole revocation fine in the amount of $6,400 were grossly disproportional to the gravity of defendant’s offense. Defendant, however, claims that “Mr. Taylor never submitted a claim for restitution, and the court’s imposition of the upper term sentence, if upheld by this Court, constituted sufficient punishment for the offense, without compounding that punishment by imposing a $6,400 fine.” We find defendant’s argument to be unavailing. As provided above, the trial court is required to consider factors such as “the seriousness and gravity of the offense and the circumstances of its commission, . . . the extent to which any other person suffered any losses as result of the crime.” (§ 1202.4, subd. (d).)
Moreover, defendant cites to two cases from the Eighth Circuit, U.S. v. Lippert (8th Cir. 1998) F.3d 974, 978, and U.S. v. Hines (8th Cir. 1996) 88 F.3d 661, 664, for the proposition that a lack of an ability to pay is a factor in determining whether a fine is unconstitutionally excessive. These cases from the Eight Circuit, however, are not binding on this court, and are in direct contradiction to the authority from the United States Supreme Court that holds that the constitutional limits of a fine is not dependent on the defendant’s ability to pay but on proportionality. (United States v. Bajakajian, supra, 526 U.S. at p. 334; see Urbano, supra, 128 Cal.App.4th at p. 406.) Defendant’s argument, therefore, fails.
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


McKINSTER
Acting P. J.


FIELDS
J.