P. v. Goldstein

Filed 3/27/07 P. v. Goldstein CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Darryl Lee Goldstein pleaded no contest to one count of second degree burglary. (Pen. Code,  460, subd. (b).)[1] Defendant also admitted a prior strike conviction for oral copulation of a minor. ( 1170.12, subd. (c)(1), 288a, subd. (c).) He timely appeals from the judgment entered June 23, 2006 after he unsuccessfully moved to strike this prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Because we conclude the court did not abuse its discretion in denying defendants Romero motion, we affirm.

BACKGROUND

The amended information filed April 17, 2006, charged defendant with two counts of second degree burglary ( 460, subd. (b)); two counts of petty theft with prior convictions ( 666); and one count of possession of stolen property ( 496, subd. (a).) The amended information also alleged defendant had previously suffered eight felony convictions within the meaning of section 1203, subdivision (e)(4), one serious felony conviction within the meaning of section 1170.12, subdivision (c)(1), four serious felony convictions within the meaning of section 1170.12, subdivision (c)(2), and two prior prison terms within the meaning of section 667.5, subdivision (b).

The following facts are from the probation report: On March 14, 2005, defendant went to a bicycle shop to return a bicycle lock worth $39.99. The bicycle shop refused to refund defendant for the lock because defendant had earlier stolen the lock from the store. In fact, the shops owner recognized defendant as having attempted this refund scam several times. Later the same day, defendant tried a similar scam at a pet hospital. An employee saw defendant remove a dog oral hygiene kit (worth $12), two tick collars (worth $14.50 each), and vitamins (worth $10.25) from a shelf, and then try to get a refund for those items. After arguing with pet hospital employees about a refund, defendant left the hospital with all of the merchandise he had removed from the shelf. Soon after, the police detained defendant near the pet hospital and a hospital employee identified him. The dog oral hygiene kit was recovered, but not the other merchandise. The next day, an employee of the bicycle shop identified defendant in a photographic lineup. When arrested, defendant smelled of alcohol, but did not appear to be intoxicated. He admitted giving the missing merchandise to a friend. Defendant was on parole at the time of his arrest.

On April 17, 2006, defendant pleaded no contest to one count of second degree burglary, admitted the prior strike allegation for oral copulation of a minor pursuant to section 1170.12, subdivision (c)(1), admitted the eight prior felony convictions pursuant to section 1203, subdivision (e)(4), and admitted the two prior prison term allegations pursuant to section 667.5, subdivision (b). In return for this plea, the remaining charges and allegations were dismissed and defendant was promised his maximum possible sentence would be five years in state prison.

On June 23, 2006, the court denied defendants Romero motion to strike the prior conviction for oral copulation of a minor and sentenced defendant to a four-year prison term. The prison term consisted of the middle term of two years for the burglary count, doubled pursuant to section 1170.12, subdivision (c)(1). The court struck the two prior prison term enhancements.

DISCUSSION

We review the denial of the Romero motion for abuse of discretion (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams)) and conclude the trial court properly exercised its discretion. In ruling on a Romero motion, the trial court 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 [spirit of the three strikes law] scheme[] . . . 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. (Id. at p. 161.) 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 sentencing court conclude[es] that an exception to the scheme should be made . . . .  (People v. Strong (2001) 87 Cal.App.4th 328, 337-338 (Strong).) Consequently, there must be something exceptional about the prior offenses, the current offense, or the defendants background, character, and prospects, to justify striking a prior serious conviction.

On appeal,  [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.  (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977‑978.) Concomitantly, [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.   (Id. at p. 978.)

Defendant contends the trial court abused its discretion in this case because the oral copulation conviction was 26 years old and suffered when defendant was only 23 years old, whereas he was 48 years old at the time of sentencing. However, as the trial court observed, defendants strike offense was very serious in nature. Defendant was ultimately sentenced to 12 years in prison for this conviction, as well as for other related offenses in which he victimized minors on three separate occasions. The facts of these sexual assault convictions were summarized in an appellate opinion as follows: The evidence reasonably establishes that the victims of Goldsteins three separate series of crimes were young boys under the age of 18. He had forcibly detained each of them in his apartment, furnished, and encouraged them to use, narcotics, marijuana and alcoholic beverages in order to lessen their resistance to his criminal objective, and then by force committed the charged sexual acts. (People v. Goldstein (1982) 130 Cal.App.3d 1024, 1041-1042.)

Moreover, the record establishes defendant committed the strike as part of a long and continuous criminal record, the continuation of which the [three strikes] law was meant to attack. (Strong, supra, 87 Cal.App.4th at p. 338.) Defendants criminal record dates back to 1974. After his strike conviction in 1980 and subsequent release from prison in 1986, defendant went on to suffer convictions in 1989, 1990, 1991, 1992, 1998, 1999, 2000 and 2002. The convictions in 1989 and 1992 involved crimes strikingly similar to those which were the basis for defendants 1980 strike conviction: defendant attempted to sexually assault vulnerable young men after giving them drugs or alcohol and attacking them. Defendant also has a history of theft crimes comparable to his recent offense, including convictions in 1990, 1991, 1998, 2000, and 2002. And defendant was on parole at the time he committed the recent offense. As defense counsel acknowledged at the Romero hearing, defendant had a December [2004] parole date and March [2005] offense date. Defendants record indicates [h]e is a frequent repeat offender who seemingly has not learned from past incarceration. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1511 (Martinez).) It plainly was not an abuse of discretion for the trial court to conclude defendant is precisely the type of criminal who falls within the spirit of the three strikes law. (Strong, supra, 87 Cal.App.4th at p. 338 [extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the three strikes law].)

Defendant also asserts the court abused its discretion because his charged offense was minor; defendant did not use force and the stolen items were of little value. The trial court properly concluded these facts were not extraordinary circumstances which would justify striking the 1980 conviction given defendants lengthy criminal record and recidivism. (See Strong, supra, 87 Cal.App.4th at p. 344 [the nonviolent or nonthreatening nature of the [current] felony cannot alone take the crime outside the spirit of the [three strikes] law].)[2]

Finally, defendant emphasizes his long struggle with drug and alcohol addictions, as well as his poor health. The court considered these problems in ruling on the Romero motion. These problems, however, do not distinguish defendant from numerous other defendants deemed to fall within the spirit of the three strike scheme. (See Strong, supra, 87 Cal.App.4th at p. 338.) Moreover, the probation report indicates defendant has since 1994 participated in treatment programs without ultimate success. Given defendants unsuccessful efforts over the years to overcome his substance abuse problems, it was proper for the trial court to conclude that defendant has not been able to follow through with treatment. (See Martinez, supra, 71 Cal.App.4th at p. 1511 [a substance abuse problem is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment].) Finally, although defendants poor health is unfortunate, the law still holds such an individual responsible for his or her behavior. (Ibid.)

The record shows the court gave weight to the nature and circumstances of defendants present offense, his prior serious felony, and the particulars of his background, character, and prospects. (Williams, supra, 17 Cal.4th at p. 161.) Given the seriousness of the strike conviction and defendants lengthy and continuous criminal record, the trial court did not abuse its discretion in refusing to grant the Romero motion.

DISPOSITION

The judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

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[1] All statutory references are to the Penal Code unless otherwise noted.

[2] It is also worth noting that, according to the probation report, defendant came close to using force during the crime. He admitted that he went to great pains not to allow my behavior to become violent.