P. v. Miranda

Filed 4/24/07 P. v. Miranda CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury convicted Salvador Rojo Miranda of first degree burglary (Pen. Code,  459),[1]attempted forcible rape ( 664/261, subd. (a)(1)), and making criminal threats ( 422). The trial court found true allegations that he had suffered two prior serious felony convictions within the meaning of the three strikes law. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)  Miranda contends that the trial court failed to exercise informed discretion in ruling on his request to dismiss one of those prior convictions for purposes of sentencing. We affirm.

FACTS AND PROCEDURAL HISTORY

Alejandra G. lived in a duplex with her husband, two children, and sister. At approximately 10:00 p.m., Alejandra was sleeping in her bedroom when her husband encountered Miranda outside the duplex. Miranda asked if he could borrow the telephone to call his daughter. Alejandra's husband obtained his telephone and allowed Miranda to make a call from outside the duplex. After the call, Miranda walked away.

Shortly thereafter, Miranda entered Alejandra's bedroom, got on top of her, and thrust his hips against her legs. Miranda covered Alejandra's mouth with his hand and threatened her. Moments later, Alejandra's husband forced his way into the locked bedroom. Miranda ran away leaving some of his clothing and boots near the duplex.

When the police arrived, Alejandra was too embarrassed to disclose Miranda's sexual behavior but later revealed the sexual assault. Miranda was identified by Alejandra as her attacker in a photographic lineup.

Miranda testified on his own behalf that, when he was given permission to use the telephone, Alejandra looked at him flirtatiously and invited him into her bedroom while her husband was talking to another man outside her home. Miranda thought they were going to have sex but Alejandra changed her mind. When the husband broke into the bedroom, Miranda ran off.

After Miranda was convicted of the offenses, the trial court found that, in 1989, he had suffered two prior serious felony convictions for robbery within the meaning of the three strikes law. ( 667.5, subd. (b).) The court denied Miranda's motion to dismiss one of the convictions (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and sentenced him to three concurrent terms of twenty-five years to life in state prison. Miranda challenges the court's refusal to strike one of the robbery convictions.

DISCUSSION

No Error in Refusal to Dismiss Prior Conviction

Miranda contends that the trial court failed to exercise informed discretion when it declined to strike one of his two 1989 robbery convictions. We disagree.

The three strikes law establishes a sentencing requirement which must be applied in every qualifying case unless "'. . . 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. Carmony (2004) 33 Cal.4th 367, 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.) A trial court's decision not to dismiss a prior conviction is reviewed for abuse of discretion and will be upheld unless it produces an arbitrary, capricious or patently absurd result. (Carmony, at p. 378.) In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives. (Id., at pp. 376-377; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Miranda attempts to avoid application of these rules by arguing that the trial court had discretion to strike one of his two 1989 robbery convictions if both arose from the same criminal act or the same course of conduct, but was unable to exercise this discretion in an informed manner because the superior court file for the robberies could not be located. We agree that a trial court must exercise "informed" discretion in deciding whether to dismiss a prior conviction under section 1385, and that the nature and circumstances of the prior convictions are material factors in a court's decision. But, we reject Miranda's argument that the trial court in this case failed to exercise informed discretion due to an incomplete record of Miranda's 1989 robbery convictions.

An abuse of discretion occurs where the trial court is not "'aware of its discretion'" to dismiss a prior strike conviction. (People v. Carmony, supra, 33 Cal.4th at p. 378.) "A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; People v. Lara (2001) 86 Cal.App.4th 139, 165-166.)

Here, the record affirmatively demonstrates that the sentencing court was aware of its discretion, understood the scope of its discretion, and reached a reasoned and reasonable conclusion after weighing all of the relevant criteria. The trial court found that Miranda had been convicted of two counts of robbery ( 211) in the same proceeding, and had received a four-year prison sentence consisting of two concurrent three-year terms for the robberies and one year for a weapons enhancement. ( 12022, subd. (d).)

Citing a footnote in People v. Benson (1998) 18 Cal.4th 24, and People v. Burgos (2004) 117 Cal.App.4th 1209, defense counsel argued it would be an abuse of discretion to refuse to strike one of the convictions if both offenses arose from "one course of conduct or one incident." Counsel stated that, because the court file necessary to make that determination could not be found, the court should construe the facts favorably to Miranda.

The trial court acknowledged its discretion to strike either or both of the strikes, and expressly recognized that "we don't know" whether the two robberies were committed in the "same transaction." But, the court explained that the evidence showed two robbery convictions with a weapon, and a "lengthy" non-strike criminal history. The court also noted that Miranda had received a three-year prison term for sale or transport of narcotics in 1991 and a seven-year term for possession of narcotics in 1994 which were also lengthy sentences. In addition, the court stated that a 2004 misdemeanor conviction for battery against a cohabitant or spouse could be viewed as a sex offense. The court stated that "I've weighed all the factors and my discretion and based upon those factors I am not going to strike a strike." Based on past and current offenses, the court concluded that Miranda was an "absolute total danger to society, particularly to females," and that the three strikes law was "designed" for him.

On appeal, as in the trial court, Miranda relies heavily on the footnote in Benson and on Burgos. In footnote 8 of Benson, the Supreme Court states that "we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connectedfor example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conductthat a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors." (People v. Benson, supra, 18 Cal.4th at p. 36, fn. 8.) In Burgos, the court concluded that the trial court abused its discretion in refusing to dismiss one of a defendant's prior strikes for attempted carjacking and attempted robbery in part because the two offenses arose from the "single criminal act" of approaching a man and demanding his car. (People v. Burgos, supra, 117 Cal.App.4th at pp. 1216-1217.)

Neither Benson nor Burgos supports the proposition that a trial court abuses its discretion as a matter of law whenever it fails to dismiss one or more prior convictions based on a single criminal act, only that this factor is significant. In any event, the instant case does not involve two offenses committed by a single criminal act. Miranda's two 1989 robberies might have been part of the same course of conduct, but two distinct robberies could not have been committed by a single criminal act.

Furthermore, nothing in Benson or Burgos, or any other case supports the conclusion that a court's inability to determine all of the details of a defendant's prior convictions renders the court unable to exercise informed discretion in ruling on a request to dismiss one of the convictions. And, as a matter of discretion, this is far from an extraordinary case that would permit a trial court to deviate from three strikes law sentencing norms.

Amendment to Abstract of Judgment

The abstract of judgment does not reflect the order of the trial court that Miranda register as a sex offender. ( 290, subd. (a)(1)(A).) Respondent contends without dispute that the abstract of judgment must be amended to reflect the court's order. We agree. (Cf. People v. Hong (1998) 64 Cal.App.4th 1071, 1074-1085.)

DISPOSITION

The trial court shall amend the abstract of judgment to require that Miranda register as a sex offender pursuant to section 290, and forward the amended abstract of

judgment to the Department of Corrections. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Gary J. Ferrari, Judge

Superior Court County of Los Angeles

______________________________

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.

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