Filed 5/31/17 P. v. Campbell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

JOHN MATTHEW CAMPBELL,

Defendant and Appellant.
C082255

(Super. Ct. No. CM043634 & CM043744)




Defendant John Matthew Campbell pleaded no contest to driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a); case No. CM043634) and to unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); case No. CM043744). Defendant also admitted he had suffered a prior felony conviction within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and had served one prior prison term (§ 667.5, subd. (b)). The trial court sentenced him to an aggregate term of eight years four months in prison.
On appeal, defendant contends the trial court abused its discretion by failing to dismiss his strike prior pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Case No. CM043744
On September 8, 2015, a police officer was dispatched to Paradise High School in response to a report of a stolen truck. Surveillance video showed two men in a sport utility vehicle (SUV) enter the student parking lot near the truck that had been reported stolen. Less than a minute later, a man drove away in the truck.
Several hours later, the police located the SUV from the surveillance video. A record check revealed that it was registered to defendant. The driver of the vehicle reported that defendant was with his brother, Michael Campbell. When an officer went to Michael’s residence, defendant was not there and Michael denied any knowledge of the theft.
The next day, the officer returned to Michael’s residence. Michael admitted to dropping defendant off at the school but claimed he did not know defendant intended to steal a vehicle. While the officer was speaking with Michael, defendant called Michael’s cell phone. The officer spoke with defendant and asked him to return the truck or tell him where it was located. Later that day, defendant told Michael where the truck could be found. Michael relayed this information to the officer.
When the truck was returned to its owner, the victim and his father noticed that the stereo had been removed, the battery was missing, and there was damage to the right rear quarter panel, the driveline, and the heat and air conditioning controls.
On October 12, 2015, an officer spoke with defendant at the Butte County Sheriff’s Office. After being advised of his Miranda rights, defendant admitted he had stolen the truck, and that committing this type of crime was his “ ‘career.’ ” He explained that he stole the truck “as a ‘spur of the moment’ decision,” and that his brother was not involved beyond providing him a ride to the school.
On October 13, 2015, defendant was charged by felony complaint with unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a).) It was also alleged that he had a prior conviction for first degree burglary (§ 459) in 2002 within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and had served four prior prison terms (§ 667.5, subd. (b)).
B. Case No. CM043634
On September 25, 2015, a police officer saw an individual, later identified as defendant, driving a vehicle without a front license plate. The officer also noticed that defendant was not wearing a seat belt. When the officer attempted to conduct a traffic stop, defendant accelerated at a high rate of speed. During the pursuit, defendant drove on public roads at speeds up to 80 miles per hour, passing cars “in an unsafe and illegal manner.” At one point, the officer lost sight of defendant’s vehicle. However, the officer located the vehicle a short time later after it “ ‘spun out of control’ ” in an intersection. The pursuit lasted approximately three minutes and spanned more than four miles.
Defendant was detained and advised of his Miranda rights. Defendant told the officer that he fled because he was on “ ‘parole’ ” and because the vehicle might be stolen. While defendant denied stealing the vehicle, he admitted he did not know the owner of the vehicle. A records check revealed that the license plate attached to the vehicle had been reported stolen the previous day and the vehicle had been reported stolen three days earlier.
Defendant explained that he took possession of the vehicle in Marysville and started it by using the “ ‘little thing in the ignition.’ ” A search of the vehicle revealed 14 shaved/filed vehicle ignition keys. The owner of the vehicle did not know defendant, and did not own the modified keys found in the vehicle.
On September 28, 2015, defendant was charged by felony complaint with driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (§ 496d, subd. (a)), and possession of burglar’s tools (§ 466). It was also alleged that defendant had a prior conviction for first degree burglary (§ 459) in 2002 within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and had served four prior prison terms (§ 667.5, subd. (b)).
C. Romero Motion
On January 12, 2016, defendant filed a motion requesting that his strike prior be dismissed pursuant to section 1385 and Romero. Defendant argued that dismissal was appropriate because although his substance abuse addiction “has made him somewhat of a ‘frequent flyer’ in jail,” his current charges are less severe than his strike prior. Defendant asserted that no victims were present during the vehicle thefts; no violence, coercion, or duress was used in the thefts; and he assisted police in recovering the vehicle stolen from the school. Defendant also argued that he had not been convicted of any crime since his strike conviction that was as severe as that conviction.
The prosecutor opposed the motion, arguing that defendant had sustained repeated convictions since his strike conviction and had violated parole multiple times. The prosecutor argued that defendant is a risk to public safety, noting that he had sustained three felony convictions for evading since his strike conviction and admitted that “he engages in this behavior all the time.” The prosecutor further argued that remoteness of the strike prior “should not be an issue . . . given [defendant’s] consistent pattern of criminal law violations that have occurred since . . . [his strike] conviction.” Finally, the prosecutor argued that the nature and circumstances of the charged crimes also weigh against dismissing the strike prior, noting that both crimes occurred close in time and involved vehicle thefts.
On January 20, 2016, the trial court denied defendant’s Romero motion, reasoning that dismissal of defendant’s strike prior was not warranted based upon his “continuing criminality, especially with regards to the repeated [evading] offenses.”
D. No Contest Pleas and Sentencing
Pursuant to a negotiated disposition, defendant pleaded no contest on February 16, 2016, to driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a); case No. CM043634) and to unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); case No. CM043744). Defendant also admitted he had a strike prior (§§ 667, subds. (b)-(i), 1170.12) and had served one prior prison term (§ 667.5, subd. (b)). In exchange for his no contest pleas and admissions, the prosecutor agreed to dismiss the remaining charges and allegations.
On April 28, 2016, the trial court sentenced defendant to an aggregate term of eight years four months in prison, consisting of three years on the evading offense, doubled to six years for the strike prior, a consecutive eight months on the unlawful taking or driving of a vehicle offense, doubled to one year four months for the strike prior, plus one year for the prior prison term.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court abused its discretion by failing to dismiss his strike prior pursuant to section 1385 and Romero. According to defendant, he should be deemed outside the spirit of the Three Strikes scheme because his current offenses did not involve violence and occurred approximately 13 years after his strike conviction. Although defendant admits that he has an extensive criminal record and has suffered numerous convictions since his strike conviction, he nonetheless argues that he falls outside the spirit of the Three Strikes law because none of his convictions involved violence, with the exception of his conviction for misdemeanor battery. He asserts that his convictions following his strike conviction were drug related and do not reflect a predisposition to commit violence against others.
Section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, “and in furtherance of justice,” to order an action dismissed. (§ 1385, subd. (a).) In Romero, our Supreme Court held that a trial court may utilize section 1385 to strike or dismiss a prior strike for purposes of sentencing under the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 504.) A trial court’s “failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he 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.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] 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.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)
“ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ ” (Carmony, supra, 33 Cal.4th at p. 377.) The circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the Three Strikes scheme must be extraordinary. (Carmony, at p. 378.) Reversal is justified where the trial court was unaware of its discretion to dismiss a prior strike, or considered impermissible factors in declining to dismiss. (Ibid.) But where the trial court, aware of its discretion, “ ‘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’ [citation].” (Ibid.)
In deciding whether it is in the interest of justice to strike allegations, the trial court “must consider whether, in light of the nature and circumstances of [the defendant’s] 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 (Williams).)
We discern no abuse of discretion. On this record, we cannot conclude that the trial court’s decision was so irrational or arbitrary that no reasonable person could agree with it. In ruling on defendant’s motion, the trial court considered defendant’s extensive criminal history since his strike conviction, including his three felony evading convictions. The trial court denied the motion on the ground that defendant is a recidivist. The trial court exercised its discretion under section 1385 and the record supports the trial court’s decision.
Defendant contends the trial court erred by giving too much weight to his nonviolent criminal history. He asserts that his current offenses (like most of his criminal history) are nonviolent crimes that do not demonstrate any tendency to recidivate as a violent felon. However, “any felony triggers a longer sentence under the Three Strikes law as long as the defendant has sustained at least one strike. . . . [T]he nonviolent or nonthreatening nature of the [current] felony cannot alone take the crime outside the spirit of the [Three Strikes] law.” (People v. Strong (2001) 87 Cal.App.4th 328, 344, fn. omitted.) Moreover, as defendant acknowledges, his extensive criminal history includes a misdemeanor conviction for battery and three felony evading convictions. Although defendant’s evading convictions did not involve violence, they were in fact serious crimes that presented a danger to the community and the pursuing officers.
In any event, the test is not simply whether defendant’s past and current crimes involved violence, but whether defendant’s criminal history, taken as a whole and in conjunction with defendant’s background, character and prospects, painted a picture of an individual who should be “deemed outside the scheme’s spirit, in whole or in part.” (Williams, supra, 17 Cal.4th at p. 161.) The trial court determined that defendant is not such an individual. In light of defendant’s criminal history, we cannot find that the court’s determination was unreasonable. The purpose of the Three Strikes law “is to provide greater punishment for recidivists.” (People v. Davis (1997) 15 Cal.4th 1096, 1099.)
Contrary to defendant’s contention, the age of his strike conviction is not significant under the circumstances of this case. The age of a strike conviction is not a reason to strike it when a person has engaged in consistent criminal activity over the intervening years. (Williams, supra, 17 Cal.4th at pp. 162-163 [13 years elapsing between strike offense and present offense not significant given the failure to refrain from criminal activity in the interim]; People v. Gaston (1999) 74 Cal.App.4th 310, 320-321 [remoteness of strike priors not significant in light of “unrelenting record of recidivism” and failure to lead a crime free life in the interim].) Finally, we reject defendant’s contention that the trial court abused its discretion by failing to adequately consider whether an enhanced sentence was appropriate punishment given the nonviolent nature of his current offenses and his felony offenses following his strike conviction. Nothing in the record supports defendant’s contention. The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Kelley (1997) 52 Cal.App.4th 568, 582.) Thus, the fact that the court focused its explanatory comments on defendant’s recidivism since his strike conviction does not mean that it considered only that factor. Accordingly, defendant has not demonstrated that the trial court abused its discretion.
DISPOSITION
The judgment is affirmed.




/s/
Blease, J.


We concur:



/s/
Raye, P. J.



/s/
Duarte, J.