Filed 12/28/17 P. v. Cole 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Tehama)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY WAYNE COLE,

Defendant and Appellant.
C084580

(Super. Ct. No. NCR97195)



Defendant Ricky Wayne Cole pleaded guilty to numerous felony charges and admitted being previously convicted of a strike offense. On appeal, defendant contends the trial court abused its discretion in denying his Romero motion to strike his prior strike. We affirm.
I. BACKGROUND
A. Underlying Facts
On January 29, 2016, Tehama County Sheriff’s deputies stopped the vehicle defendant was driving for a window tint violation. As a deputy approached the vehicle, he learned it was reported stolen several days earlier. Defendant and his passenger were detained while the deputies searched the vehicle.
Inside the trunk of the vehicle, the deputies found multiple firearms and a bag of marijuana. One of the firearms also was reported stolen. The deputies also found a bag containing “miscellaneous ammunition,” a checkbook belonging to defendant, 0.4 pounds of marijuana, a Ziploc bag with 122 one-milligram Lorazepam pills, 0.72 grams of heroin, 4.56 grams of methamphetamine (divided into smaller baggies), and two 15-milligram Oxycodone pills.
Defendant told deputies the car had been at his house for about two weeks, but he did not know who brought it there. He said he had a shop behind his house where he worked on cars, so people would bring in vehicles. He also said a man named “Adam” had been living with him for a few months and moved out only a few days earlier. Adam gave defendant permission to drive the car; defendant asked if there was anything illegal in the car and Adam said there were “ ‘[j]ust some black powder guns in the trunk, but you should be fine.’ ” Defendant did not know Adam’s whereabouts.
Deputies asked defendant about the Lorazepam. Defendant said they were a “ ‘benzo’ type pill and he was taking them to be thrown away.” Defendant felt sick and could not answer any more questions.
B. Procedural Background
The People charged defendant with 12 felonies and a misdemeanor, and alleged defendant was twice previously convicted of a strike offense: attempted robbery (Pen. Code, § 664/211) in 1995 and kidnapping (Pen. Code, § 207, subd. (a)) in 1984. He pleaded guilty to six felonies: two counts of transporting illegal drugs, possession of an illegal drug for sale, being a felon in possession of a firearm and ammunition, and vehicle theft. Defendant also admitted to the 1995 conviction for attempted robbery.
Prior to sentencing, defendant asked the trial court to strike his prior strike conviction. In support of his request, defendant noted he is a decorated combat veteran who served in Vietnam where he suffered psychological and physical trauma. Since his return from Vietnam, defendant struggled with substance abuse but achieved 21 years of sobriety, from January 1994 to October 2015.
Defendant described his work and educational history. From June 2000 to January 2001 he worked as a counselor in a residential recovery program. He went to Butte College and Chico State from June 2001 to June 2004; he graduated with honors and two associate degrees. Beginning in June 2004, until February 2009, defendant was a mental health counselor for Butte County Behavioral Health and volunteered for the Tehama County Drug and Alcohol Advisory Board. In 2009 he ran a DUI school.
In 2009, defendant’s health began to decline. Sixty-six years old and diabetic, defendant’s vision was failing. He suffered from cerebral spinal stenosis and his spinal cord was pinched. His hands and toes were numb; his nerves were atrophying. He spent 10 days in a coma in 2014 following a bout with pneumonia. He soon relapsed into abusing drugs.
Defendant provided letters of reference describing him as a man who had already “pulled himself up by his boot straps,” a man who could get sober again if he was given the opportunity. Defendant’s previous parole agent once described defendant as a success and a pleasure to work with. His supervisor at Butte County Behavioral Health found him to be an “exceptional worker” as an intern and later hired him as a “chemical dependency counselor.” She described defendant as “compassionate, conscientious, intelligent and articulate.” In her opinion, defendant’s relapse into drug abuse was the result of his “health circumstances.”
Defendant explained that, prior to his current incarceration, he cared for his 87-year-old mother who also was in failing health. She suffered from diabetes, high blood pressure, and back problems, requiring her to take 12 different medications every day. She lived on a fixed income and on more than two acres of land that she was unable to maintain on her own. Defendant’s mother told the court that she needed defendant at home.
In sum, defendant argued, given the nonviolent nature of his crimes and his history as a productive member of society following his prior strike conviction, he was not the type of person for whom the three strikes law was intended. The trial court was not persuaded.
The trial court considered the relevant evidence, including testimony from defendant’s mother and the information regarding defendant’s military service and sobriety. The court also noted defendant’s criminal record: “six misdemeanor convictions, five felonies beginning in 1976 . . . most of them are related at least in some part to drugs and whatnot but, nonetheless, the defendant did have the [Penal Code section] 207 kidnapping with a weapon conviction in 1984, violation of parole, DUI misdemeanor after that . . . and then in ‘94, the [Penal Code section] 664, the attempted second degree robbery.” The court acknowledged that defendant had been living an “upstanding life” since his seven-year prison term for that attempted robbery conviction.
On balance, however, the trial court found that none of defendant’s positive attributes, his support system, or his extended period of sobriety placed him outside the spirit of the three strikes law given the nature of his current criminal offense: “driving a stolen vehicle with all kinds of stolen weapons that were loaded in the car with all kinds of drugs in the car.” The court thus found defendant “is not even close at that point to where the Court should find based on his background and his prospects that the strike should be struck. . . . The Romero motion is denied.”
The trial court subsequently sentenced defendant to 10 years eight months in state prison.
II. DISCUSSION
On appeal, defendant contends the trial court abused its discretion in denying his Romero motion. He argues his prior strike is remote in time, nearly 21 years ago. To his current offenses, he avers they all are nonviolent felonies and he committed them “as a result of his addiction.”
He adds that he is a decorated combat veteran who suffered psychological and physical trauma during the Vietnam War. He has struggled with substance abuse issues since returning home from Vietnam but has had long periods of sobriety and was successfully employed. His relapse into drug use was the result of his failing health: diabetes, cerebral spinal stenosis, pinched spinal cord, numb hands and toes, atrophied nerves, and he was in a coma for 10 days in 2014. Prior to being incarcerated, defendant cared for his 87-year-old mother. He also received numerous letters in support from family, friends, and his former parole agent. Defendant concludes this places him outside the three strikes law. Given the deferential standard that constrains our review, we are compelled to disagree.
The three strikes sentencing scheme applies where the defendant has at least one qualifying strike, unless the trial court concludes an exception should be made. (People v. Carmony (2004) 33 Cal.4th 367, 377.) A trial court properly exercises its discretion in striking a strike only if it finds “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 falls outside the spirit of the three strikes law and should be treated as though he had not committed the prior strike. (People v. Williams (1998) 17 Cal.4th 148, 161.)
When a trial court declines to strike a strike, we review that decision for abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at pp. 374-375.) We will not reverse “unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Where the 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 . . . ruling, even if we might have ruled differently . . . .’ ” (Id. at p. 378.)
Here, the trial court’s exercise of discretion in denying the Romero motion was neither irrational nor arbitrary. The court considered the nature of defendant’s present felonies, his prior convictions, and his background and prospects. Defendant drove a stolen car loaded with firearms, ammunition, and drugs. These circumstances demonstrate a disregard for the law and present a real and serious danger to other people, regardless of defendant’s history of sobriety and good behavior. Thus, while they may not be “violent” crimes, the serious nature of these crimes cannot be ignored. We conclude, on this record, the trial court did not abuse its discretion in refusing to strike defendant’s prior strike offense.
III. DISPOSITION
The judgment is affirmed.


/S/

RENNER, J.


We concur:


/S/

RAYE, P. J.


/S/

DUARTE, J.