Filed 9/7/18 P. v. Lacy CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Tamaria Dawayne Lacy was convicted of willfully inflicting corporal injury resulting in a traumatic condition upon a relationship partner and sentenced to nine years in prison. Lacy contends the trial court abused its discretion in denying his motion to strike a prior serious felony conviction, brought pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.

BACKGROUND

Around 4:00 a.m. on August 20, 2016, the victim’s mother called 911. She told the dispatcher she was locked in her bathroom and said, “Hurry up please, he’s trying to kill my daughter. He’s got a knife . . . .”

When Union City police arrived at the victim’s mother’s house a few minutes later, they found Lacy standing on the front porch and the victim near the garage. The victim’s face was covered in blood, she had a large laceration on the bridge of her nose, and blood ran down her shirt and pants and covered her hands. She had a cut over her left eye and numerous lacerations to her nose and lip. The victim “appeared to be in shock, worried, . . . in need of help” and “frantic.” She reported that Lacy was acting crazy and started hitting her. She had asked her son to get her a knife to defend herself, but Lacy grabbed the knife from her. The victim told an officer that Lacy hit her with “his hand and the knife.”

A jury found Lacy guilty of inflicting corporal injury to a relationship partner, who was also the mother of his child. In a bifurcated proceeding, the trial court found true allegations that Lacy had a prior felony conviction in 2006 of receiving stolen property, for which he had served a prison term, and that he had a prior conviction in 2012 of attempted first degree residential burglary, which is a serious felony or “strike” under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 1192.7, subd. (c)(18) & (39)).

Lacy moved to dismiss (or strike) the prior serious felony conviction. Lacy had pleaded no contest to attempted first degree residential burglary in January 2012, and was sentenced to 240 days in county jail and placed on two years of formal probation. At the time of the current domestic violence offense, he was not on any form of probation or parole. Lacy pointed out that his current offense was not classified as a serious or violent felony, and there was no enhancement allegation of great or serious bodily injury. He argued that the court could dismiss the “strike” conviction and still sentence him to the upper term of four years, “a sufficient and just amount of time for the defendant to seek rehabilitation in the form of anger management and domestic violence classes in custody, and sufficient time to remove the defendant from the toxic relationship with the victim.” Lacy also urged the court to consider that his prior “strike” conviction was for an attempt, not a completed offense, and there was no allegation of violence related to the attempted burglary.

The trial court denied Lacy’s motion to strike. The court considered Lacy’s criminal history, which showed increasingly serious offenses over time,[1] and concluded, “[H]e’s the very type of individual that the Three Strikes Law has contemplated. He certainly comes within the realm of someone who should be deemed inside the spirt of the Three Strikes Law.” The court noted that it had exercised its discretion under Penal Code section 1385 to strike prior felonies in other cases, but “this is not a case where it’s appropriate.”

The trial court imposed the upper term of four years for corporal injury to relationship partner, which was doubled to eight years because of the prior serious felony conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus one year for the prior prison term (§ 667.5, subd. (b)), for a total sentence of nine years in prison.

DISCUSSION

“[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. . . . [¶] But ‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations.” (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)

Where “ ‘the record demonstrates that the trial court 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]. . . . [T]he circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be . . . extraordinary. Of course, in such an extraordinary case—where the relevant factors described in [People v.] Williams [(1998)] 17 Cal.4th 148,^[[2]] manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 378.)

Since he is attacking the sentence, it is Lacy’s burden to show the trial court’s decision to deny his Romero motion was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.) He fails to meet this burden.

Lacy concedes he has not led a life free of crime, having suffered seven convictions beginning in 2001, but notes that six of the convictions were misdemeanor offenses. He argues his prior serious felony was for “arguably the least serious offense” of the offenses that qualify as serious. He asserts he had a difficult upbringing and points out that he could have received a sentence as high as five years even without consideration of the strike conviction. He also claims the current offense “was f[a]r less injurious than it could have been.”

These arguments do not show the trial court’s decision to deny his Romero motion was irrational or arbitrary. We have reviewed the record and are confident “ ‘the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law.’ ” (Carmony, supra, 33 Cal.4th at p. 378.) Although corporal injury to a relationship partner is not classified as a “serious” or “violent” offense under the Three Strikes law, the trial court found Lacy’s current offense to be serious and violent in fact. Explaining its sentencing decision, the court found the crime “involved great bodily harm and a high degree of callousness. The photographs and videos that were presented in evidence show the victim extremely upset, and in great pain and shock, and in evidence was her prior statement that ‘he hit me everywhere.’ ” The victim’s children were present during Lacy’s attack on the victim, and they were hysterical. The victim’s mother was also present and became so fearful, she locked herself in the bathroom. The court further noted that jailhouse calls between Lacy and the victim showed “he was dissuading and suborning perjury, at the very least interfering with the judicial process, colluding with the victim to keep her from testifying. . . .”

On the record before us, we cannot say the trial court abused its discretion in denying Lacy’s motion to strike his prior serious felony.

DISPOSITION

The judgment is affirmed.

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Miller, J.

We concur:

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Kline, P.J.

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Richman, J.

A150742, People v. Lacy