Filed 9/6/17 P. v. Hendrix CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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A jury found defendant Steven Hendrix guilty of two counts of willfully inflicting corporal injury resulting in a traumatic condition upon his fiancée. (Pen. Code,[1] § 273.5, subd. (a).) In a bifurcated proceeding, the trial court found true the allegations he had previously been convicted of violating section 273.5, subdivision (a) within seven years of committing the current corporal injury offenses. (§ 273.5, former subd. (e)(1), as amended by Stats. 2007, ch. 582, § 1; see Stats. 2013, ch. 763, § 1 [redesignating former subd. (e)(1) as subd. (f)(1)].) The trial court also found true the allegations he had a prior serious felony within the meaning of the three strikes law (§ 667, subds. (c), (e)(1)) and had served one prior prison term (§ 667.5, subd. (b)). The trial court denied his motion to strike the prior strike allegation (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (Romero)) and sentenced him to an aggregate term of seven years eight months in prison.

On appeal, defendant contends the trial court prejudicially erred by admitting evidence of his prior domestic violence conviction. Defendant further contends the prosecutor’s misconduct during voir dire and closing argument violated his right to a fair trial and implicated his Sixth Amendment rights to an impartial jury and to confront the evidence against him. Recognizing that he may have forfeited this claim, defendant alternatively argues he received ineffective assistance of counsel. Finally, defendant contends the trial court abused its discretion by refusing to strike his prior strike conviction. We affirm.

FACTUAL BACKGROUND[2]

In April and June 2015, defendant and his girlfriend Beshia Shoate-Peppars lived together in West Sacramento with Beshia’s three children, her niece, and her sister, Wyesia Shoate.[3] On April 3, 2015, Wyesia called 911 and reported a domestic violence incident between defendant and Beshia. Wyesia told the 911 operator defendant had choked Beshia during an argument, causing marks around her neck. The entire 911 call was played for the jury.

West Sacramento Police Officer Erik Thruelsen was dispatched to Beshia’s residence. When he arrived, Beshia was angry and reported that she and defendant had gotten into an argument and defendant assaulted her. She explained defendant had punched her in the back, grabbed her throat with both hands and lifted her off the ground, threw her down on a sofa, and then strangled her so hard she thought she might lose consciousness. While speaking with Beshia, Officer Thruelsen noticed a series of small abrasions near the base of her throat, one of which was bleeding. He also noticed two other abrasions where the skin was “broken” with some redness and bruising around them. According to Officer Thruelsen, Beshia’s injuries were consistent with her description of the incident. Photographs of Beshia’s injuries were admitted into evidence.

On June 28, 2015, Wyesia called 911 and reported another domestic violence incident between defendant and Beshia. Wyesia told the 911 operator defendant and Beshia had gotten into a physical and verbal fight and Beshia was bleeding on the front and back of her neck. The entire 911 call was played for the jury.

West Sacramento Police Officer Tyler Quinn was dispatched to Beshia’s residence. When he arrived, Wyesia told him defendant had choked and pushed Beshia during an argument. Beshia confirmed Wyesia’s report, adding that defendant had choked her twice. Beshia explained defendant had choked her so hard she could not breathe for about two seconds. While speaking with Beshia, Officer Quinn observed small abrasions on her neck with fresh blood around them. According to Officer Quinn, Beshia’s injuries were consistent with her description of the incident. Photographs of Beshia’s injuries were introduced into evidence.

As we discuss in further detail post, Beshia recanted her previous claims of abuse at trial.

DISCUSSION

I

Admission Of Domestic Violence Propensity Evidence

Defendant contends the trial court committed reversible error in admitting evidence of his prior domestic violence conviction. We disagree.

Prior to trial, the prosecutor filed a motion seeking to admit evidence of an August 2011 incident of domestic violence by defendant against a former girlfriend to show his propensity to commit domestic violence crimes. In her motion, the prosecutor made the following offer of proof: In August 2011, defendant and his then girlfriend were living together with their child. On August 23, 2011, defendant got mad at her for some unknown reason and suddenly started “ ‘smacking her.’ ” Defendant hit her with an open hand and closed fist approximately five or six times, causing a cut to her face. Following the incident, defendant told the police he did not punch or hit his girlfriend. Instead, he claimed he pushed her and she fell into a fence. The girlfriend claimed defendant had engaged in similar behavior in the past but she had been too afraid to call the police. On August 29, 2011, defendant was convicted of a misdemeanor violation of section 273.5.

Defendant filed a written opposition to the prosecutor’s motion. Defendant conceded the August 2011 incident constituted a prior act of domestic violence but argued exclusion of the evidence was warranted under Evidence Code section 352. According to defendant, the evidence had little probative value because the incident was not similar to the charged offenses, presentation of the evidence would consume an undue amount of time, and, given the nature of the incident, there was a “great danger” the jury might choose to punish him for his prior conduct rather than follow any instruction regarding the limited use of such evidence.

At the hearing on the motion, the prosecutor told the trial court she only intended to introduce the certified record of defendant’s prior conviction. Defense counsel, again, acknowledged the conviction involved domestic violence and urged the trial court to exclude the evidence under Evidence Code section 352. Defense counsel argued that evidence of the conviction would “add[] nothing to the jury’s understanding of what happened [in this case].” Defense counsel stated, “[T]he whole purpose of testimony under [Evidence Code section] 1109 is that you see that somebody has the propensity to act the same way under similar circumstances. Without having that, . . . it gives the jury no way to determine whether or not under these circumstances, what would be the weight of [the evidence], why [the evidence] would be relevant, why [the evidence] would be something that would be helpful to them in making a determination of what happened in this case.” Defense counsel further stated, “By doing it just through the paperwork, I think it is somewhat misleading. It tends to more suggest that [the jury] should punish him for his prior act without actually looking at what is the probative value of what actually happened in the prior incident. And that’s really what 1109 is there for, so that [the jury] could see that a person would act similarly under similar circumstances. [The] . . . paperwork . . . certainly wouldn’t allow [the jury] to have any sense of what actually happened on that date.” After discussing why the facts of the uncharged offense should not be admitted under Evidence Code section 352, defense counsel noted, “I suppose the fact that the jury doesn’t hear the circumstances [of the uncharged offense], maybe it doesn’t seem quite as prejudicial, but I think it is certainly less probative if the idea is to determine whether or not he would be acting similarly on different occasions.”

The trial court ruled the certified record of defendant’s conviction was admissible, reasoning the evidence was no more inflammatory than the charged offenses, the evidence would not be confusing to the jury “in any great nature,” the conviction was not remote in time, and the fact there had been a conviction favored admissibility. In so ruling, the trial court noted that the prosecution’s introduction of the certified record of conviction without evidence of the underlying facts would “neutralize[]” the uncharged offense evidence by presenting it in the “most benign way possible.”

The parties subsequently agreed to a stipulation regarding the prior conviction. At the close of the prosecutor’s case-in-chief, the trial court read the stipulation to the jury: “On August 29, 2011, in Sacramento County, the defendant was convicted of a misdemeanor violation of [section] 273.5(a) in that the defendant did willfully and unlawfully inflict corporal injury resulting in a traumatic condition upon Jessica Doe, a person who was then and there the parent of the defendant’s child or children.”

Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (Evid. Code, § 1101.) The Legislature, however, has created an exception to this rule in criminal domestic violence cases. (Evid. Code, § 1109; see People v. Brown (2011) 192 Cal.App.4th 1222, 1232.) In those cases, the Legislature has concluded the policy considerations favoring admitting evidence of uncharged domestic violence offenses outweigh the policy considerations favoring excluding such evidence. (Brown, at p. 1232.) “Section 1109, in effect ‘permits the admission of defendant’s other acts of domestic violence for the purpose of showing a propensity to commit such crimes. [Citation.]’ ” (Brown, at p. 1232.) “The admission of prior acts as propensity evidence encompasses both charged and uncharged acts.” (Id. at p. 1233.)

“Even if the evidence is admissible under section 1109, the trial court must still determine, pursuant to [Evidence Code] section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury.” (People v. Brown, supra, 192 Cal.App.4th at p. 1233.) “The governing test . . . evaluates the risk of ‘undue ’ prejudice, that is, ‘ “evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,” ’ not the prejudice ‘that naturally flows from relevant, highly probative evidence.’ ” (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) A trial court enjoys broad discretion in assessing probative value versus prejudicial effect, and its exercise of that discretion will not be disturbed on appeal except on a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Initially, we reject defendant’s contention that his due process rights were violated because section 273.5 does not qualify as an offense involving domestic violence within the meaning of Evidence Code section 1109. Defendant forfeited this argument by failing to raise it in the trial court. (People v. Partida (2005) 37 Cal.4th 428, 434.) But even if we were to consider the argument, we would conclude it lacks merit.[4] As relevant here, domestic violence under Evidence Code section 1109 refers to “abuse” perpetrated against a cohabitant, a person with whom the offender is having or has had a dating relationship, or a person with whom the offender has had a child. (See Evid. Code, § 1109, subd. (d)(3), § 13700, subd. (b); Fam. Code, § 6211, subds. (b)-(d).) For purposes of Evidence Code section 1109, “abuse” means “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (Evid. Code, § 1109, subd. (d)(3); § 13700, subd. (a).) A person violates section 273.5 if he or she willfully inflicts corporal injury resulting in a traumatic condition upon, among others, a cohabitant, a person with whom the offender has, or previously had, a dating relationship, or the mother of the offender’s child.[5] (§ 273.5, subds. (a), (b).) In our view, there is no question that a violation of section 273.5 qualifies as an offense involving domestic violence. (People v. Cross (2015) 61 Cal.4th 164, 168 [“section 273.5 defines various domestic violence crimes”].)

We also reject defendant’s contention the trial court abused its discretion in admitting evidence of his 2011 domestic violence conviction. Our review of the record shows the trial court performed the requisite weighing process under Evidence Code section 352 and acted well within its discretion in admitting the evidence.

The evidence of the uncharged offense was probative. “ ‘ “The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.” ’ ” (People v. Johnson (2010) 185 Cal.App.4th 520, 531-532.) Similar acts of domestic violence are “uniquely probative” of guilt in a later accusation because domestic violence is “typically repetitive” in nature. (Id. at p. 532.) Taken together, the evidence of the uncharged offense and the charged offenses tended to show defendant had a pattern of engaging in violence against women with whom he has, or previously had, a romantic relationship, demonstrating the repetitive nature of domestic violence. Accordingly, the uncharged offense evidence was relevant and highly probative because it created a strong inference defendant had a propensity to commit the acts the People alleged occurred on April 3, 2015, and June 28, 2015. (People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706.)

The probative value of the uncharged offense evidence was not substantially outweighed by its prejudicial effect. “Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s).” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) Here, the prior domestic violence incident resulted in a conviction, and there was no testimony describing the facts of the incident. By stipulation, the jury learned defendant was convicted of a misdemeanor violation of section 273.5 on August 29, 2011. Because no reference was made to the facts underlying the conviction, the potential prejudicial effect of the uncharged offense evidence was decreased. (See People v. Tran (2011) 51 Cal.4th 1040, 1047 [potential for prejudice is decreased “when testimony describing the defendant’s uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense”].)

Defendant concedes, and we agree, the 2011 incident was not too remote in time to be probative, and the presentation of evidence regarding the incident did not consume too much time. However, we disagree with defendant’s contention that evidence of the incident confused the issues. According to defendant, the lack of details regarding the 2011 incident took the jury’s attention away from the charged offenses. Nothing in the record suggests the jury was confused. As previously indicated, the jury learned of the prior conviction by way of stipulation. The jury was not tempted to convict defendant of the charged offenses in order to assure he would be punished for the uncharged offense, and its attention was not diverted to determining whether defendant committed the uncharged offense because his conviction demonstrated he did. (People v. Lewis (2009) 46 Cal.4th 1255, 1287; People v. Balcom (1994) 7 Cal.4th 414, 427 [“the circumstance that the uncharged acts resulted in a criminal conviction . . . decreases, in two ways, the potential for prejudice, undue consumption of time, or confusing the issues”].) Further, the jury was properly instructed regarding the People’s burden to prove the charged offenses beyond a reasonable doubt and the limited purpose for which it could consider evidence of the uncharged offense. The court specifically instructed the jury that it could (but was not required to) conclude that evidence of the uncharged domestic violence offense demonstrated defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the charged domestic violence offenses. The jury was further instructed that such evidence was not sufficient by itself to convict defendant, and that the People must still prove each charge beyond a reasonable doubt. We presume the jury followed these instructions. (People v. Lindberg (2008) 45 Cal.4th 1, 26.)

While the evidence of defendant’s prior domestic violence conviction was no doubt damaging to his defense, “ ‘n applying [Evidence Code] section 352, “prejudicial” is not synonymous with “damaging.” ’ ” ([i]People v. Callahan (1999) 74 Cal.App.4th 356, 371.) Undue prejudice does not refer to evidence that tends to prove guilt; it refers to evidence that prompts an emotional reaction against defendant that tends to cause a jury to decide the case on an improper basis. (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276-1277.) Evidence is unduly prejudicial under section 352 “if it invites the jury to prejudge ‘ “ ‘a person or cause on the basis of extraneous factors.’ ” ’ [Citation.] ‘Painting a person faithfully is not, of itself, unfair.’ ” (People v. Johnson, supra, 185 Cal.App.4th at p. 534.) In view of the record, we cannot conclude the uncharged offense evidence was unduly prejudicial.

II

Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct during voir dire and closing arguments. Anticipating that he may have forfeited this claim based on his failure to object in the trial court, defendant alternatively argues he received ineffective assistance of counsel. We conclude defendant forfeited his claim of prosecutorial misconduct. We further conclude defendant has failed to demonstrate ineffective assistance of counsel.

Defendant’s misconduct argument is predicated on the following: During voir dire, the prosecutor asked whether any of the prospective jurors believed “domestic violence is something that happens in the home and that the police or courts should not get involved . . . .” None of prospective jurors raised their hands. The prosecutor then asked certain prospective jurors if they could think of a reason why the police or government would get involved in domestic violence cases. One of the prospective jurors responded, “Domestic violence affects more than the people in the home, it is a[n] [a]front to society.” When the prosecutor asked this prospective juror whether a domestic violence case should be prosecuted against the wishes of an alleged victim, she said the case “should go forward, because that happens a lot. It happened in my personal case. [¶] . . . [¶] . . . It happens more often than not.”[6] Another prospective juror indicated that a prosecution should proceed against the wishes of the victim, “because [the] next time it happens, somebody could be killed . . . .”[7] None of the prospective jurors indicated the case should not proceed if the victim did not want the case prosecuted.[8] The prosecutor then asked a prospective juror how he or she would feel if the victim’s testimony differed from the account she gave to the police. After receiving a response from the prospective juror, the prosecutor asked two other prospective jurors if they could think of a reason why there might be differences between the victim’s testimony at trial and what the victim told the police. One of those prospective jurors indicated, among other things, that the differences in the accounts might be the result of the victim deciding he or she does not want to have a person he or she loves prosecuted.

At trial, Beshia recanted her previous claims of abuse against defendant. She also testified that she loved defendant, did not want to press charges against him, was still living with him, and did not want to testify. During closing argument, the prosecutor reminded the jurors: “[O]ne of the big things we talked about [during jury selection], and one of the things we concluded was that even if the victim doesn’t want prosecution, even if the victim is back together with the aggressor, that you as the jury would be able to still see the case through to the end and still believe that it should be prosecuted. I believe when that question was asked, there was agreement, there was consensus among the group, the case should go forward, and it should be seen through to the end.” The prosecutor also reminded the jury they had “talked about specific issues that come up in domestic violence cases,” including the fact that a victim might testify differently than what she told the police, the victim and the defendant might get back together, and the victim might not want the defendant to be prosecuted. The prosecutor noted that all of these issues occurred in this case.

“ ‘ “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.] . . . [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ ” (People v. Carter (2005) 36 Cal.4th 1215, 1263.)

Defendant makes various arguments as to why the prosecutor’s voir dire questions and remarks during closing argument constitute misconduct. However, we conclude defendant has forfeited his prosecutorial misconduct claim. Defendant did not make a timely objection to any of the complained-of conduct or request an admonition from the trial court. The record does not reflect that an objection would have been futile or that an admonition would not have cured the harm caused by the alleged misconduct.

We reject defendant’s alternative contention that he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel’s performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) The deficient performance component of an ineffective assistance of counsel claim requires a showing that “counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms.” (Id. at p. 688 [80 L.Ed.2d at p. 693-694].) With respect to prejudice, a defendant must show “there is a reasonable probability” -- meaning “a probability sufficient to undermine confidence in the outcome”--“that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694 [80 L.Ed.2d at p. 698.)

Even assuming the prosecutor engaged in misconduct and defense counsel was deficient for failing to object, defendant has not demonstrated prejudice. The outcome of this case turned on whether the jury believed the testimony of the police officers who responded to Wyesia’s reports of domestic violence and the statements Wyesia made during the 911 calls or the testimony of Beshia, Wyesia, and defendant’s mother.

The testimony provided by the responding police officers and the relevant statements made by Wyesia during the 911 calls is summarized above. When Beshia testified, she admitted she and defendant had argued on the relevant dates but recanted her previous claims he physically abused her. She claimed her injuries were self-inflicted, explaining that they were caused by her scratching and picking at her skin. Beshia also claimed she cut defendant with a pair of scissors during the April 2015 incident, and the police put a lot of pressure on her to press charges against defendant and to say he put his hands on her after the June 2015 incident. When Wyesia testified, she claimed she did not observe either of the arguments between Beshia and defendant, and did not see defendant cause any injuries to Beshia. Wyesia also denied telling the police she saw defendant choke and push Beshia during the June 2015 incident. Defendant’s mother claimed Beshia admitted she had lied to the police about defendant assaulting her. Defendant’s mother also claimed Beshia had a problem scratching and picking at her skin.

Defendant’s argument amounts to a protest that the prosecutor argued against nullification and thus prejudiced him because without it the jury probably would have nullified -- in other words, refused to convict even if it believed the crime was committed because it thought the government should not interfere if the victim does not want to go forward. Although the argument was improper because it utilized sentiments expressed in voir dire rather than evidence and instructions, the argument had no influence on the credibility contest and would not have affected the jury’s determination in that regard. We are not persuaded there is a reasonable probability of a different result but for defense counsel’s failure to object to the alleged prosecutorial misconduct. Accordingly, defendant’s ineffective assistance claim fails.

III

Motion To Strike Prior Conviction

Defendant contends the trial court abused its discretion in refusing to strike his prior strike conviction for first degree burglary. He argues that he falls outside the spirit of the three strikes law. We disagree.

In making his Romero motion, defendant argued his prior strike conviction should be dismissed because he had a challenging upbringing, he is a family man, the injuries to Beshia were “superficial” and not serious, and Beshia did not want him to be prosecuted. The prosecutor filed a written opposition, arguing that the harm done by defendant went beyond superficial injuries. The prosecutor noted that defendant’s strangulation of Beshia was a means to inflict harm internally and to exercise power and control over her. The prosecutor also noted that defendant’s conduct caused Beshia’s children to suffer emotional trauma, as they were present during both incidents of domestic violence.

At the outset of the hearing on the motion, the trial court indicated it had read the briefing filed in connection with the motion and considered the probation report, which detailed defendant’s lengthy criminal background. The probation report shows defendant had numerous probation violations and convictions since 2002, including, but not limited to, several drug-related convictions, a 2007 battery conviction, a 2010 conviction for being a felon in possession of a firearm, convictions in 2011 for first degree burglary and inflicting corporal injury, and convictions in 2012 for willfully harming or injuring a child and corporal punishment or injury to a child. After a lengthy discussion of the facts of the current offenses, defendant’s family history, and defendant’s “troubling” and “continuous” criminal conduct, the trial court denied the Romero motion. The court characterized its decision as not “a close call,” noting the prior strike was recent, defendant was convicted of violating section 273a (willful harm or injury to a child) after the strike, and defendant has a long history of failing to rehabilitate when given a chance.

Section 1385, subdivision (a), 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. 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. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) A trial court’s denial of a request to dismiss a prior strike allegation “is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.)

“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.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)

In Carmony, our Supreme Court explained: “ ‘[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.” ’ ” (People v. 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. (Id. 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. (People v. Carmony, supra, 33 Cal.4th at p. 378.) 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.’ ” (Ibid.)

In deciding whether to dismiss a prior strike allegation, a 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 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.)

Defendant contends his criminal history, although long, is mainly a record of misdemeanors, and therefore does not qualify him as the sort of career criminal the three strikes law was designed to punish. He argues that, given the court’s recognition his strike prior must not have been the most serious burglary[9] and the relatively minor harm suffered by the victim, the trial court abused its discretion in denying his Romero motion.

We discern no abuse of discretion. In ruling on defendant’s motion, the trial court considered and balanced the relevant factors and reached its decision in conformity with the law. The decision was neither irrational nor arbitrary.

DISPOSITION

The judgment is affirmed.

/s/

Robie, Acting P. J.

We concur:

/s/

Butz, J.

/s/

Duarte, J.