Filed 10/25/17 P. v. Best CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

TINA MARIE BEST,

Defendant and Appellant.


G053445

(Super. Ct. No. 14WF4342)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Bacerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Tina Marie Best of three counts of second degree robbery. (Pen. Code, §§ 211/212.5, subd. (c).) The trial court suspended imposition of sentence and placed her on three years’ formal probation. On appeal, defendant’s sole contention is that the court abused its discretion when it denied her invitation under section 1385, subdivision (a), to dismiss two of the counts in furtherance of justice. We disagree and affirm the judgment.
I
FACTS
Defendant entered a clothing store and tried on some clothing. After defendant exited, the store manager found a hanger on the floor outside her fitting room. The store alarm went off as defendant left the store, indicating she had security tags on her person. The store manager and two other store employees grabbed onto the handle of defendant’s purse and engaged in a tug of war with her. Defendant hit all three employees with a closed fist in an effort to escape with her purse. During the struggle, a blouse fell out of defendant’s purse. The manager recognized the blouse as one from the store, which would have been on a hanger like the one she found on the floor outside defendant’s fitting room.
Police responded to a 911 call. During the booking search, an officer found three security tags located in defendant’s bra.




II
DISCUSSION
At the sentencing hearing, defense counsel invited the trial court to dismiss two of the robbery counts on the basis they were minor Estes robberies involving a shirt valued under $20.00. Although counsel acknowledged defendant had struck the three victims, she argued none of them were significantly hurt; thus, felony probation was sufficient punishment “without straddling her with three strikes.”
The trial court responded: “Well, I would agree with the defense if this was a Romero[ ] motion, the motion to strike strikes, that this would not, in this court’s opinion, merit two or three additional strikes, based upon the conduct. But as far as the [section] 1385 motion, there was sufficient evidence before the jury to sustain the verdicts. [¶] Again, if it was a Romero motion[,] I would not hesitate to entertain the motion. But that is premature at this point from that standpoint; and, hopefully, [defendant] will never have to have that addressed.”
Defendant argues the trial court apparently was not aware of its discretion because it “gave as [its] reason that the evidence was sufficient” and believed “offenses which could be alleged as strikes in future prosecutions could not be dismissed in the furtherance of justice unless and until they were alleged as strikes.” We are not persuaded.
Section 1385, subdivision (a) states, “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” We review a trial court’s refusal to dismiss for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 374.) Section 1385 “does not require a court ‘explain its decision not to exercise its power to dismiss or strike.’” (Id. at p. 376.) We can presume the trial court properly considered all the arguments made and rejected them in light of its decision not to strike. (Ibid.; People v. Myers (1999) 69 Cal.App.4th 305, 310.)
“‘Dismissals under section 1385 may be proper before, during and after trial.’ [Citation.] Because the concept of ‘furtherance of justice’ (§ 1385) is amorphous, we have enunciated some general principles to guide trial courts when deciding whether to dismiss under section 1385. Courts must consider ‘the constitutional rights of the defendant, and the interests of society represented by the People,’ and ‘[a]t the very least, the reason for dismissal must be “that which would motivate a reasonable judge.”’ [Citations.] Under these principles, trial courts historically have had the power to acquit for legal insufficiency of the evidence pursuant to section 1385. [Citations.]” (People v. Hatch (2000) 22 Cal.4th 260, 268, italics added.)
Here, the trial court recognized this power when it stated the evidence was sufficient to sustain the verdicts. Additionally, defense counsel’s sentencing brief explained the “trial court has authority to dismiss a criminal action, or a portion of an action, in the interest of justice. Pen[al] C[ode] § 1985[, subdivision] (a). The test is to balance many factors, including the interests of the defendant and the interests of society.” The court’s minute order expressly states it “read and considered Probation Report, People’s Sentencing Brief and Defense Sentencing Brief.” Thus, even had the court not been aware of its sentencing discretion, defendant’s brief advised it of such, thereby negating defendant’s claim the court was unaware of its discretion to dismiss two of the robbery counts. Accordingly, People v. Orabuena (2004) 116 Cal.App.4th 84, 99-100, cited by defendant, is inapposite, as there, the court failed “to exercise its section 1385 discretion to dismiss or strike . . . based on a mistaken belief regarding its authority to do so.”
As to the trial court’s reference to a motion to strike a strike, we agree with the Attorney General: “In arguing the motion to dismiss, defense counsel repeated three times that the crimes were too de minimis or technical to warrant three separate strikes on [defendant’s] record. When the court stated the context was not a motion to strike prior strike offenses under Romero, [it] simply responded to the three strikes argument the defense made.” It does not show the court was unaware of its discretion under section 1385.
III
DISPOSITION
The judgment is affirmed.



MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



FYBEL, J.