P. v. King

Filed 4/27/07 P. v. King CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Francis J. Hourigan III, Judge. Affirmed.

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Maria Morrison, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury acquitted Leslie King of second degree robbery but convicted him of assault by means likely to produce great bodily injury. (Pen. Code, 211, 212.5, 245, subd. (a)(1); all further undesignated section references are to the Penal Code.) In a bifurcated trial after a jury waiver, the trial court found that King had one strike prior felony conviction, a 1983 residential burglary. ( 667, subds.(b)-(i), 1170.12; 459, 460.) The trial court also found King's conviction in his current case constituted a violation of the conditions of probation of his 2003 conviction for unlawful vehicle taking. (Veh. Code, 10851, subd. (a).) The trial court denied King's motion to strike the strike for sentencing purposes ( 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and imposed a 3-year middle term, doubled to 6 years under the Three Strikes law, and a consecutive 8-month term (one-third of the 2-year middle term) for the probation violation.

King appeals, contending that the trial court abused its discretion in denying his Romero motion to strike the 1983 burglary conviction for purposes of sentencing. We disagree and affirm.

FACTS

King and Felicia Butler had been living together for about 18 months when on September 13, 2004, Butler asked King to move out. King complied.^[1]In the early morning of September 15, King returned to Butler's apartment and asked her for $20. Butler told him she did not then have money but would give it to him after she paid her bills and rent. King returned a couple of hours later, repeated the request for $20, but received the same reply. Later that day, as Butler was paying for her purchases at a convenience store, King approached Butler from behind and tore a necklace from her neck and a ring from one of her fingers. (King had given Butler both items as gifts.) King again asked for $20 and punched Butler several times in the face with the hand on which he wore a large ring. King then took Butler's purse, which contained about $55 and a credit card, and left. Later that day, he returned the purse, but the cash and credit card were missing.

The next day, the police arrested King at a nearby motel. After waiving his rights, King admitted that he had punched Butler several times and taken her purse, but said that she had voluntarily given him the jewelry. King said he was sorry for punching Butler and did not intend to hurt her, but only wanted to retrieve his car keys and bank statement, which he believed were in her purse.

King did not testify at trial. The jury acquitted him of second degree robbery but did convict him of assault on Butler by means likely to produce great bodily injury. At the May 18, 2005 sentencing hearing, the court found the prior strike allegation (the 1983 burglary conviction) to be true; the court also found that, by assaulting Butler, King had violated the conditions of probation imposed for the 2003 unlawful vehicle taking. The court stated it had read King's probation report, his motion to strike the burglary conviction, and a letter King had submitted.

King's motion to strike argued that his strike occurred over 20 years ago, the assault in this case, although violent, was not planned, Butler was not seriously injured, the majority of her property was returned, the crime involved domestic violence and a known victim, and King had never served a prison term. King further argued that a 4‑year, 8-month prison sentence on both the current case and the probation violation was appropriate because he had admitted wrongdoing and insisted on trial only to contest the robbery charge, to which charge the prosecution had demanded a plea as a condition of any plea agreement. The prosecutor argued that King's record of three felony and 13 misdemeanor convictions since 1983 demonstrated relentless recidivism, particularly his four violent spousal batteries and consistently poor performance while on probation. The prosecutor urged the court not to strike the strike and to impose a 4-year upper term, doubled to 8 years, and a consecutive 8-month term for the probation violation.

The trial court found that King's assault on Butler did not constitute a strike for future sentencing because he did not use a deadly weapon and because Butler did not suffer great bodily injury. The court noted that the jury acquitted King of the charged robbery. The court denied the motion to strike the 1983 strike conviction, explaining: although the strike conviction was old, and King's record was not as bad as others the court had considered, the court agreed with the prosecutor that much of his conduct does involve violence towards other people. [] Particularly the [spousal battery] convictions. The robbery conviction. And the very crime for which this jury found [King] guilty, where he went into a public store, he had a falling out with his girlfriend. [] This court recognizes, I'm a human being, emotions can run high when there is a breakup of a relationship. But the law does not allow someone to go into a store and when they don't get their way, get their property back, they then physically assault another person. (People v. King, supra, B184293, italics added.) The court imposed a 3-year middle term, doubled to 6 years under the three strikes law, and a consecutive 8‑month term for the probation violation.

King appealed from the judgment and challenged the sentence, contending that the trial court abused its discretion in refusing to strike his strike conviction and that the court's statement that he had a robbery conviction was manifestly erroneous, requiring a remand for resentencing. We agreed that the trial courts reference to a non-existent robbery conviction at sentencing indicated that the court had erroneously considered that prior conviction in determining the sentence, and we vacated the sentence and remanded the case to the trial court for resentencing and rehearing of Kings Romero motion. Otherwise, we affirmed the judgment.

On remand, the trial court reheard and again denied Kings Romero motion. Although it considered the remoteness in time of Kings burglary conviction and the limited injury resulting from his recent assault, it also considered that King had suffered 16 other convictions between the dates of those two convictions. The court reimposed the same sentence of 6 years plus 8 months, calculated in the same manner, plus a $200 restitution fine ( 1202.4, subd. (b)), a suspended parole restitution fine ( 1202.45), and a $20 court security fee ( 1465.8, subd. (a)(1)). King timely appealed.

DISCUSSION

King contends that the trial court abused its discretion in not striking his 1983 residential burglary conviction for purposes of sentencing under the three strikes law.

Alleged error in failing to dismiss a prior serious or violent felony conviction at sentencing is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) Under this standard, the burden is on the defendant to clearly show that the sentencing decision was irrational or arbitrary; otherwise, the trial court is presumed to have acted properly. (Id. at pp. 376-377.) There is no abuse of discretion unless no reasonable person could agree with the trial courts decision. (Id. at p. 377.)

The three strikes law was intended to limit judges discretion in sentencing repeat offenders. (Carmony, supra, 33 Cal.4th at p. 377.) In deciding whether to strike a strike conviction in furtherance of justice under section 1385, subdivision (a), or in reviewing such a ruling, the 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 schemes 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. (Carmony, supra, 33 Cal.4th at p. 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.) Because the circumstances must be extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. (Carmony, supra, 33 Cal.4th at p. 378.) Where the record shows that the trial court balanced the relevant facts and reached its decision in conformity with the spirit of the law, its ruling should be affirmed, regardless of whether another court could have decided the issue differently. (Ibid.)

As both the prosecutor and defense counsel remarked at the rehearing of Kings Romero motion, King incurred 16 additional criminal convictions during the 22 years between his 1983 residential burglary conviction and his recent assault conviction, including 13 misdemeanors and three felonies. Although, as defense counsel pointed out, eight of the convictions were vehicle code violations, the court noted that others were for domestic violence, and King was on probation for theft or unauthorized use of a vehicle under Vehicle Code section 10851 at the time of the assault.^[2] Given this lengthy criminal record, including crimes of violence, a reasonable mind could conclude that King is the sort of habitual criminal who falls within the spirit and purpose of the three strikes law. (See People v. Strong (2001) 87 Cal.App.4th 328, 338.)

Nor has King shown extraordinary considerations that take him outside of that law. King notes that his strike prior conviction was more than 20 years ago, but remoteness alone does not require striking a prior conviction, particularly, as in this case, where the defendant has continued to commit crimes in the years following that conviction. (People v. Gaston (1999) 74 Cal.App.4th 310, 321.) Although King maintains that his prior crimes never involved prison, that residential burglary is arguably the least serious of all serious and violent felonies, and that Butler was not seriously injured when King assaulted her, the fact remains that King has committed a number of crimes of violence along with his serious first strike. In light of this record, we find no abuse of discretion in the trial courts refusal to dismiss Kings prior conviction of a serious felony.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

SPENCER, P. J.

VOGEL, J.

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^[1] We, like the parties, rely on the facts from an earlier appeal in this case. (See People v. King (Jan. 27, 2006, B184293) [nonpub. opn.].)

^[2] In his opening brief, King acknowledges the following felony convictions: possession of cocaine base for sale (Health & Saf. Code, 11351.5) (1989); grand theft ( 487) (1996); unlawful driving or taking of a motor vehicle (Veh. Code, 10851, subd. (a)) (2003). He also acknowledges the following misdemeanor convictions: petty theft (1984); driving on a suspended license or without a license (1988, 1992, 1993, 1997, 1998); driving while intoxicated (1999); reckless driving (2002); jaywalking (1996); inflicting corporal injury on a cohabitant ( 273.5) (1988, 1995); battering a cohabitant ( 243, subd. (e)) (1995); and battery ( 242) (1999).