P. v. Padilla




Filed 4/19/11 P. v. Padilla CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Appellant, v. MICHAEL ANTHONY PADILLA, Defendant and Appellant.

E049805 (Super.Ct.No. BLF004868) OPINION

APPEAL from the Superior Court of Riverside County. David B. Downing, Judge. Affirmed in part as modified and reversed in part.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J. T. Carlton, and Charles C. Ragland, Deputy Attorneys General; Rod Pacheco, District Attorney, and Kelli Catlett, Deputy District Attorney for Plaintiff and Appellant.
Defendant Michael Anthony Padilla and another inmate attacked a fellow inmate, punching him and kicking him and causing him to suffer six broken ribs, a collapsed lung, and a broken orbital bone. Defendant was convicted of assault with force likely to cause great bodily injury and an enhancement that defendant personally caused great bodily injury. Defendant was found to have suffered two prior serious or violent felony convictions.
Both defendant and the People appeal the judgment. Defendant claims on appeal that:
1. The trial court improperly allowed an expert to testify as to X-rays and medical records regarding the victim’s injuries that the expert had not prepared, over defendant’s hearsay objection and against his right of confrontation under the federal Constitution, requiring reversal of the great bodily injury enhancement.
2. The trial court erred by failing to instruct the jury with Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 360 on evaluating expert testimony.
The People contend on appeal that:
1. The trial court’s dismissal of one of defendant’s prior strike convictions is void because the trial court failed to put its reasons for striking the conviction in the minute order.
2. The trial court abused its discretion in striking one of the defendant’s prior strike convictions pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero).
I
PROCEDURAL BACKGROUND
Defendant was convicted of assault by a state prisoner with a deadly weapon and with force likely to produce great bodily injury (Pen. Code, § 4501),^[1] and the special allegation that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) was found true. In a bifurcated jury trial, defendant was also found to have suffered two prior serious or violent felony convictions (§§ 667, subds (c), (e)(2)(A) and 1170.12, subd. (c)(2)).
The trial court struck one of defendant’s prior convictions before sentencing. Defendant was sentenced to the upper term of 6 years on the assault conviction, doubled under the second-strike law, for a total of 12 years. In addition, defendant was sentenced to 3 years on the bodily injury enhancement. Defendant received a total sentence of 15 years in state prison.
II
FACTUAL BACKGROUND
On January 7, 2008, California Department of Corrections and Rehabilitation (CDCR) Officer Diego Vaca was assigned to Ironwood State Prison in Blythe. At 7:05 a.m., he was working in the observation/gun tower overlooking the prison grounds.
As the inmates were waiting in line for breakfast, Officer Vaca observed a fight break out. Two inmates were punching another inmate, later identified as inmate Mario R. Gonzalez, with their fists. The two inmates were punching Gonzalez in the chest and head. Gonzalez fell to the ground and was kicked in the face; the two inmates were kicking Gonzalez like he was a “soccer ball.” Gonzalez rolled up into a fetal position.
Officer Vaca activated the alarm and notified all inmates to get down into the prone position over the public address system. All of the inmates got down except for the two inmates who were attacking Gonzalez.
Officer Vaca radioed to other officers to help stop the fight. Officer Guillermo Delacruz was in the yard and observed the two inmates, identified as defendant and Reundy Alexander Villalobos, punching Gonzalez while he was on the ground.^[2] As Officer Delacruz approached the fight, he observed defendant kick Gonzalez three or four times. The kick was a full force kick like “kick[ing] a soccer ball.” The kicks were on the torso and face areas. Gonzalez did not appear to be able to defend himself.
Officer Delacruz used pepper spray on Villalobos. Both Villalobos and defendant went down on the ground. Gonzalez lay on the ground bleeding from his mouth; he had bruising on his face and was moaning. Gonzalez was taken from the yard on a gurney.
Defendant had no injuries. He was searched, but no weapons were found on him. Defendant and Villalobos were at least 30 years younger than the victim. No other inmates were involved in the fight.
Dr. Nickolas Lind was a physician and surgeon employed as a doctor at the Ironwood State Prison. He helped staff a “mini-emergency” room at the prison and had seen inmates who suffered trauma in the prison. He was mainly a general physician to the inmates. On January 7, he was working in the central health facility in the prison. Around 7:00 a.m., Gonzalez was brought into the facility. Although Dr. Lind’s testimony will be set forth in more detail, post, he essentially established that Gonzalez had suffered a collapsed lung, six broken ribs, and a possible fracture of the orbital bone around the eye socket. The injuries were consistent with being punched with a fist or kicked.
The parties stipulated that defendant was serving time in prison within the meaning of section 4501. No defense evidence was presented.
III
EXPERT TESTIMONY
Defendant makes two interrelated claims. First, he contends that the trial court erred by allowing in hearsay testimony of Dr. Lind relying on X-rays and medical records that Dr. Lind did not prepare and that admission of the hearsay testimony violated his right of confrontation under Crawford v. Washington (2004) 541 U.S. 36, 50-51 [124 S.Ct. 1354, 158 L.Ed.2d 177]. In addition, he argues that the trial court erred by refusing to instruct the jury with CALCRIM No. 360 that it could not rely on the X-ray evidence for the truth of the matter asserted, which was that defendant caused Gonzalez great bodily injury to support the enhancement. We will address the claims together.
A. Additional Background
At trial, Dr. Lind testified that he observed that Gonzalez was having trouble breathing when he was brought into the prison emergency room. His respiratory rate indicated that he was suffering from respiratory stress. Dr. Lind believed that Gonzalez might have rib fractures, but he was not able to diagnosis him at that time and had to send him to the hospital for a more thorough examination.
Defendant returned to the prison on January 10, and Dr. Lind observed that he was having pain on the right side of his chest, and his breath sounds were reduced on that side. Dr. Lind was concerned that he was suffering from a collapsed lung.
Dr. Lind was asked by the prosecutor if Gonzalez was transferred to two different hospitals from Ironwood State Prison. Defendant objected on grounds of lack of foundation and hearsay. The objection was sustained. The prosecutor then asked if Dr. Lind had reviewed medical records pertaining to the injuries Gonzalez received on January 7. Dr. Lind responded that he had. After this, the prosecutor asked Dr. Lind where Gonzalez was first treated after he left Ironwood State Prison. Defendant again objected on hearsay grounds. The trial court called for a sidebar conference.
The prosecutor advised the trial court it was seeking to introduce information from medical records from two different hospitals at which Gonzalez was treated. Defendant objected that such testimony was hearsay. The prosecutor admitted that Dr. Lind could not diagnose on his own that Gonzalez had a collapsed lung, broken ribs, and a broken eye socket. Gonzalez had to be sent to the hospital for X-rays.
Defendant objected to any testimony by Dr. Lind as to what the records would report, such as that the ribs were broken and which lung collapsed. He argued it was inadmissible hearsay being used as substantive evidence. The prosecutor responded that “[h]is opinion is based upon these reliable sources from other experts that those were the conditions.” The trial court concluded that Dr. Lind could rely on the medical records and his own examination in concluding Gonzalez had a collapsed lung.
Dr. Lind resumed his testimony. He was asked by the prosecutor about the medical records from the two hospitals. Dr. Lind indicated that the medical records were the type regularly prepared by physicians in treating and diagnosing patients.
Dr. Lind had suspected the collapsed lung on January 7 based on Gonzalez’s labored breathing and respiratory rate. Although he could not determine if in fact there was a collapsed lung, it was one possible cause of the labored breathing. The prosecutor asked Dr. Lind if he had any confirmation of the diagnosis when Gonzalez returned to Ironwood and based on the medical records. Dr. Lind started to testify that X-rays were taken at the hospital when defendant objected.
The trial court took over the questioning. It asked Dr. Lind, “Did you see any evidence that he had medical treatment after he left your facility, Doctor‌” Dr. Lind responded that he had. Dr. Lind had seen evidence of a chest tube on the right side of Gonzalez’s body that had been removed. Dr. Lind explained that the chest tube was used to expand the lung. The prosecutor then asked Dr. Lind if he formed an opinion that Gonzalez had rib fractures, as he had first suspected on January 7. Dr. Lind stated, “Upon reviewing the [X]-ray findings that were taken at [the hospital], the records revealed that he had - - .” Defendant’s hearsay objection was sustained.
The prosecutor then asked Dr. Lind if he had formed an opinion as to whether or not Gonzalez had suffered fractured ribs on January 7. Dr. Lind testified that Gonzalez had received six rib fractures and that he based his opinion on the X-rays. Defendant moved to strike the testimony as hearsay.
The trial court again took over questioning Dr. Lind. The trial court asked, “Doctor, when someone sustains fractured ribs, does that affect their ability to breathe‌” Dr. Lind responded that it did and that he had been concerned about it the first time he saw Gonzalez, on January 7. The prosecutor then asked Dr. Lind if he received information subsequent to January 7 that Gonzalez in fact had suffered rib fractures on January 7, to which Dr. Lind responded that he had. The prosecutor then asked what the information consisted of that confirmed his initial suspicion of rib fractures. Defendant again objected. The trial court stated, “We have beaten all around this. Just answer the question. Overruled.”
Dr. Lind testified that he had reviewed X-ray findings that showed rib fractures and had spoken with the doctor who treated Gonzalez at the hospital, who gave him information regarding the rib fractures.^[3] Dr. Lind testified that Gonzalez had broken his third, fourth, fifth, sixth, eighth, and ninth ribs. Based on the X-rays, Gonzalez had segmental fractures on two of his ribs. A segmental fracture, or a multiple fracture, increased the risk of causing a collapsed lung. The broken rib could puncture the lung, causing the lung to collapse. Throughout this testimony, defendant objected on hearsay ground, but the objections were overruled.
During discussion of the instructions, defendant requested that the trial court instruct the jury with CALCRIM No. 360^[4] on the limitation of records used by an expert in testimony. Defendant indicated that the testimony given by Dr. Lind regarding what he observed about Gonzalez’s collapsed lung was proper, but relying on the X-rays for the testimony regarding the fractured ribs and orbital bone was improper. However, since it had been admitted, the limiting instruction that the jury could not rely on the records as subjective proof should be given. The trial court noted that the matter had gotten convoluted in testimony. It noted, “There is no way this jury understands at this point . . . what were [Dr. Lind’s] own opinions and what he gleaned from other people . . . .” The trial court felt that the instruction would just confuse the jurors.
Defendant again argued that the rib fractures were based on substantive evidence that was inadmissible hearsay. It could not be used to prove the great bodily injury enhancement. The trial court refused to give the instruction and noted the evidence only went to the great bodily injury enhancement. The trial court also noted that there was “plenty of evidence of injuries, even if Dr. Lind hadn’t testified.”
B. Analysis
Expert witnesses are entitled to rely upon reliable hearsay, including the statements of patients and treating professionals, in forming their opinions. (Evid. Code, § 801, subd. (b); People v. Campos (1995) 32 Cal.App.4th 304, 307-308 (Campos).) However, “[a]n expert may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts. ‘“‘The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse.’”’ [Citations.]” (Campos, at p. 308.)
The Campos court concluded in its case (where the testifying expert relied on other experts in recommending the defendant be committed as a mentally disordered offender) as follows: “Here, the reports of the nontestifying experts were hearsay. [The testifying expert] was properly allowed to testify that she relied upon the reports in forming her own opinions. The trial court erred, however, when it allowed her to reveal their content on direct examination by testifying that each prior medical evaluation agreed with her own opinion. ‘[D]octors can testify as to the basis for their opinion [citation], but this is not intended to be a channel by which testifying doctors can place the opinion of innumerable out-of-court doctors before the jury.’ [Citations.]” (Campos, supra, 32 Cal.App.4th at p. 308.)
However, based on the record before this court, it appears that what Dr. Lind testified to in the instant case was not a report prepared by another doctor or the opinions of another doctor; he testified as to what he saw on X-rays. Although defendant mentions medical records, the only statements made by Dr. Lind were made in reference to what appears to be his review of the X-rays. As such, unlike in Campos, where the expert there sought to testify as to reports based on opinions of other doctors, here, it appears that all that Dr. Lind testified to was what he observed on the X-rays.
“‘While a picture produced by an X-ray cannot be verified as a true representation of the subject in the same way that a picture made by a camera can be, the rule in regard to the use of ordinary photographs on the trial of a cause applies to photographs of the internal structure and conditions of the human body taken by aid of X-rays, and such a photograph, when verified by proof that it is a true representation [citation], is admissible in evidence.’ [Citation.]” (Sim v. Weeks (1935) 7 Cal.App.2d 28, 40-41.) “ . . . X-ray photographs are admitted into evidence although there is no one who can testify from direct observation inside the body that they accurately represent what they purport to show. [Citations.]” (People v. Bowley (1963) 59 Cal.2d 855, 861, fn. omitted, called into doubt on other grounds in People v. Tobias (2001) 25 Cal.4th 327, 337.)
Defendant never contended below that the X-rays were not accurate. Although the best evidence would have been the X-rays themselves, defendant never objected on this ground below. Moreover, to the extent the X-rays should have been authenticated, again, defendant did not object on these grounds. As such, Dr. Lind could testify as to his observations of the X-rays. The statements as to the X-rays and what they showed were not inadmissible hearsay.
We further reject defendant’s argument that the admission of Dr. Lind’s observations of what was on the X-rays violated the confrontation clause. Initially, defendant’s hearsay objection was insufficient to preserve the confrontation clause issue for appellate review. (People v. Burgener (2003) 29 Cal.4th 833, 869.) This is because a confrontation clause analysis based upon Crawford “is distinctly different than that of a generalized hearsay problem.” (People v. Chaney (2007) 148 Cal.App.4th 772, 779.)
Moreover, this testimony regarding the X-rays did not violate the confrontation clause because Dr. Lind’s testimony concerned what appears on this record to be his opinions based upon his review of the X-rays. This testimony, therefore, raised only relevancy considerations based upon proper authentication of the X-rays and the qualification of Dr. Lind as an expert. (See People v. Bowley, supra, 59 Cal.2d at pp. 859-862; Evid. Code, § 801). As set forth, ante, no such issues were raised on appeal, nor could they be, because trial counsel made no objections either to the authentication of the X-rays or to Dr. Lind’s qualifications as an expert below.
Finally, the trial court did not error by refusing to instruct the jury with CALCRIM No. 360. The jury could properly rely upon the statements made by Dr. Lind based on the X-rays for the truth of the matter asserted. CALCRIM No. 360 was therefore an inappropriate instruction.
IV
ROMERO MOTION
The People also make two interrelated arguments. First, they complain that the trial court failed to state in the minute order its reasons for striking one of defendant’s prior convictions as required by section 1385 and People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), and therefore such dismissal is void. Second, they contend that the trial court abused its discretion by dismissing one of defendant’s prior strike convictions. Like defendant’s contentions, we address the People’s contentions together.
A. Factual Background
Prior to trial, defendant brought a Romero motion to strike one or all of the prior convictions. The People argued that the current and prior offenses were not only violent, but also gang related and that defendant had exhibited a pattern of criminal activity.
Defendant argued that he was only 18 and 19 years old when he committed his prior offenses. He had been incarcerated since he committed the offenses. Further, the second-strike sentence (he was only seeking to have one of the priors struck) would be 10, 12, or 14 years, served consecutive to the current sentence, which was a sufficient sentence.
The trial court indicated it had not yet heard all of the evidence in the case. It was concerned that defendant had been involved in violent activity, including attempted murder. The motion was denied without prejudice. The trial court did state that it believed a 14-year consecutive sentence was appropriate and fair; however, the priors were relatively recent. It would wait until the verdict to determine whether the facts of the instant case and the prior convictions warranted striking a conviction.
After a jury trial, the jurors found true that defendant had suffered three prior felony convictions within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (b)(2): attempted murder (§§ 664/187) on December 15, 2000; violating section 186.22, subdivision (b) on December 15, 2000; and participating in a street gang (§ 186.22, subd. (a)) on March 4, 1999. The parties later clarified that defendant only had two qualifying strikes: the attempted murder and the street gang allegation.
At sentencing, the trial court stated it had read the Romero motion filed by defendant^[5] and the opposition by the People. Further, it had read People v. Thornton (1999) 73 Cal.App.4th 42, Williams, and Romero.
The trial court first noted that Villalobos, the other inmate involved in hitting Gonzalez, had pled guilty in exchange for an 11-year sentence for the same acts. The trial court understood that Villalobos only had one prior strike. It asked the People why defendant should be treated differently for the same act. The People relied on the three strikes law that punished more severely those with more prior strikes. Further, Villalobos’s plea was open to the court, and the People had not agreed to it.
The trial court then stated it had not voted for the three strikes law, as it was never intended that the third strike be anything but a serious and violent felony. It acknowledged, however, that all of defendant’s prior convictions involved violent felonies. It then stated that defendant was the “poster child for the Three Strikes Law . . . .” Defendant had prior gang and attempted murder offenses, and despite these crimes, he had committed assault in prison in broad daylight.
In the 1999 plea to the gang allegation (one of the prior strikes), defendant admitted that he had knowingly possessed stolen property. In addition, he admitted to being an active participant in the Varrio Modena Locos gang and that the stolen property was possessed in order to benefit the gang.
The trial court surmised as to the current crime that a shot-caller in prison had “undoubtedly” ordered this to be done “because Hispanic inmates do not tolerate nor want child molesters in their prisons.”^[6] It stated, “I do not think this case is worth life. I think it’s worth what the other guy got or maybe more, 14 or 15 years. I think that’s an appropriate sentence.” The trial court felt that “[i]n order for [it] to sentence [defendant] to 15 or 16 years,” it would have to strike one of the priors.
The trial court noted that other cases had found striking a prior was proper either because it was remote (which was not the case here) or because the defendant had led a blameless life (which also was not the case here, as he had been in prison). The trial court then stated, “And clearly, I cannot find a way to strike the strike here. I can’t. I can’t do it. It would be an abuse of discretion, and I just can’t go off and do that because I want to. I can’t find a way to do it.”
The trial court then examined the crimes. It noted that defendant was only the getaway driver for the attempted murder, and he had pled guilty to the prior attempted murder. The current offense was “awful.” The trial court then issued it tentative sentence of 25 years to life plus 3 years.
Defendant presented the testimony of Angel Rodriguez, the victim in the attempted murder prior conviction. Rodriguez testified that defendant had only been the getaway driver and had not been involved in the stabbing.
The sentencing hearing was continued. At the next hearing, defendant presented the testimony of several of his family members, who noted their support for defendant. The trial court then noted that it could not impose the sentence it wanted to; it had to impose the sentence mandated by the Legislature. It acknowledged that it would be an abuse of discretion to strike both strikes. It again noted that defendant had a strong support system.
The trial court recognized in order to strike one of the priors, it would have to find under Williams and Romero that defendant was deemed outside the scheme of the three strikes law. It indicated that it had been thinking since the continuance about the attempted murder prior. The trial court believed that defendant did not commit the actual stabbing and may not have even been present when the actual stabbing occurred. It indicated that it would strike that prior because of minimal involvement. However, it was still concerned that the new crime was “really a violent crime . . . .” It was not yet ready to rule.
The People then presented evidence that defendant had actually been outside his truck about 15 feet away from Rodriguez when Rodriguez was stabbed. Further, Rodriguez had told police that he thought defendant ordered the stabbing because he wanted Rodriguez to join his gang.
The trial court noted that it would impose the upper term for the instant substantive crime because of its violent nature. Defendant made a statement to the court that he was sorry for what had happened to Rodriguez.
The trial court stated that it had never seen such family support for an incarcerated inmate. It stated that, for that reason, it thought that “his prospects for survival outside the walls . . . are better than most incarcerated inmates and certainly better than any other three-striker that I’ve ever met, or seen or had dealings with. [¶] So, for that reason and for all the reasons that we’ve already talked about several times in this proceeding today and the last time we were here, I will, under 1385 of the Penal Code, dismiss the attempted murder strike, leaving, for sentencing purposes only, [defendant] to be sentenced as a second-striker.”
The trial court noted that defendant was being given a second chance but now had three strikes. The People objected to the trial court basing its decision on giving defendant a second chance. The trial court responded it was basing its decision on all of the factors discussed at the hearings. The People objected that none of the criteria under Williams and Romero had been met. The trial court then indicated that it had stated its decisions and “[t]he Appellate Court will decide if I was right or wrong.”
The trial court concluded, “This is not an easy decision. I think it’s a very, very, very close call. I was not inclined to do it last time we were here. I thought about it the whole time between the last time we were here and today . . . ; it’s very difficult because I do not condone what [defendant] did at the state prison where he kicked that guy. I don’t condone that. I think that’s a bad crime. I’m not thinking that’s the right thing to do. I’m telling you he’s getting 15 years at 85 percent which is a just sentence for what he did, and I’ll leave it at that.”
The minute order for sentencing did not reflect the trial court’s reasons for striking the prior conviction. Upon receiving the People’s opening brief on appeal, the trial court issued a nunc pro tunc order reflecting the reasons for striking the prior. It gave the following reasons: “The particulars of [defendant]’s background character and prospects are such as to place [defendant] outside the 3 strikes scheme in whole or in part. [Defendant] went to prison at the age of 19 pursuant to a plea bargain for attempted murder. [Defendant] was not the actual stabber but was probably the get-a-way driver. Compared to other attempted murder cases that the Court has seen [defendant]’s involvement in that case was minimal. [Defendant] has not been involved in any other criminal activity since then except for the present case. Based on this Court’s knowledge of prison cases the Court concludes that [defendant] was probably ordered to commit the assault by the shot caller[] in the prison yard. [T]his does not justify [defendant]’s actions[;] it does explain why he would commit this offense in broad daylight in front of numerous correctional officer witnesses. The sentence of 15 years is not insignificant and is in line with what his co-participant received (12 years). [Defendant] has a very strong family support system. The Court has never seen an inmate with such a concerned and caring family. [Defendant]’s prospects then are excellent when he is released from prison at the age of 42 or 43. In other words he has a home to go to unlike many if not most parolees. Based upon all the factors considered at the two-hour sentencing hearing the Court believed that 15 years is a fair and just sentence.”
B. Analysis
Initially, as to the People’s claim that the trial court’s dismissal was void for failing to state its reasons in the minute order, we assume the People no longer raise this issue. Regardless, since we find the trial court abused its discretion, we need not review the issue.
We review the trial court’s ruling striking a prior conviction for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 504.)
“‘The governing canons are well established: “This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]” [Citation.] . . . “[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” [Citation.]’ [Citation.] [¶] The abuse of discretion standard ‘is deferential. . . . But it is not empty.’ [Citation.]” (People v. Gaston (1999) 74 Cal.App.4th 310, 314-315.)
In other words, that discretion, while broad, is by no means absolute. Its exercise must proceed in strict compliance with section 1385, subdivision (a)’s direction that the dismissal be in furtherance of justice and requires consideration of both the constitutional rights of the defendant and the interests of society represented by the People. “‘At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” [Citations.]’ [Citation.] ‘Courts have recognized that society, represented by the People, has a legitimate interest in “the fair prosecution of crimes properly alleged.” [Citation.]’” (Romero, supra, 13 Cal.4th at pp. 530-531.)
Here, we must determine whether the reasons given by the trial court are a reasonable basis for concluding that defendant should be deemed outside the spirit of the three strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 336 (Strong).)
The leading case on how the trial court can and should exercise this discretion is Williams, supra, 17 Cal.4th 148. There, in 1995, the defendant was charged with and ultimately found guilty of driving under the influence of phencyclidine. (Id. at p. 152.) His criminal record had begun in the 1970’s, with four juvenile adjudications for burglary. (Id. at p. 153.) In the 1980’s, he was convicted of one misdemeanor and four felonies, including the two strike priors, and he repeatedly violated parole. Between 1991 and 1995, he suffered seven misdemeanor convictions. He had been arrested for assault with a deadly weapon, but this had resulted in parole revocation, not a criminal conviction. (Id. at p. 154.) He was unemployed. He had a substance abuse problem, which he had not addressed effectively. (Id. at p. 155.)
The trial court chose to dismiss one of the defendant’s two strike priors. It explained that the “‘prior convictions for the serious felonies were in 1982. It would appear, though, since that time he has run afoul with [sic] the law many times, but not for crimes involving actual violence.’” (Williams, supra, 17 Cal.4th at p. 156.)
The Supreme Court held this was an abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.) It held that in ruling whether to strike or vacate a prior conviction allegation, 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 scheme’s spirit and hence should be treated as though he had not previously been convicted of the prior crimes. (Id. at p. 161.)
In holding that the defendant in Williams could not be deemed outside the spirit of the three strikes law, the Supreme Court explained, “As to his present felony: It is a conviction of driving under the influence that followed three other convictions of driving under the influence; ‘the existence of such convictions reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable — but had failed or refused to learn his lesson’ [citation]. As to his prior serious and/or violent felony convictions: The record on appeal is devoid of mitigation.” (Williams, supra, 17 Cal.4th at p. 163.)
Moreover, the court noted that there were few favorable factors about Williams’s background, character, or prospects. Although Williams had 13 years between his prior convictions and his present felony, the court found this to be insignificant because he did not refrain from criminal activity during that span of time. During those 13 years, the court noted that Williams was often in prison or jail. When he was not, he violated parole and probation. (Williams, supra, 17 Cal.4th at p. 163.) Therefore, the Supreme Court held that “the superior court’s order fell outside the bounds of reason under the applicable law and the relevant facts.” (Id. at p. 164.)
After Williams, an “overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career. [Citations.]” (Strong, supra, 87 Cal.App.4th at p. 338.) In Strong, a Court of Appeal reversed a trial court’s dismissal of one of the defendant’s strikes. The trial court had granted the dismissal on the basis, inter alia, that because the defendant was 41 years old, he posed a reduced risk to society. (Id. at p. 334.) The appellate court concluded that the defendant was “‘the kind of revolving-door career criminal for whom the Three Strikes law was devised.’” (Id. at p. 340, fn. omitted.)
Although the trial court stated that it had read Williams, it did not properly apply the factors. Up until the trial court struck the prior, it commented on the record that defendant was the “poster child” for the three strikes law, that it could not find a way to strike the prior in the case, and that it intended to impose the upper term on the current crime because it was “really a violent crime.”
Nothing in the defendant’s background warranted striking the prior. Defendant admittedly was involved in a gang and had committed crimes on behalf of the gang. Further, the evidence of the prior attempted murder was conflicting. Although defendant presented testimony that he was only the getaway driver, the People presented evidence that he was the mastermind of the attempted murder and stood nearby watching Rodriguez be stabbed. The trial court ignored this conflicting evidence.
Moreover, all of these crimes were fairly recent, showing defendant’s penchant for committing violent crimes. Although the trial court took into account that defendant had not committed any crimes since the gang prior, defendant had been in prison that whole time. (See Williams, supra, 17 Cal.4th at p. 163.)
The trial court relied on the fact that defendant attacked Gonzalez in prison because he was told to do so by a shot-caller. The trial court noted in passing that this did not excuse defendant's actions. Even if defendant had been told by a shot-caller to attack Gonzalez, that was not a justification for the beating, and it certainly does not explain the severity of the beating. Defendant kicked and punched Gonzalez so hard he had six broken ribs, and his orbital bone was broken. Defendant himself made the decision to seriously harm Gonzalez.
It appears the court dismissed the prior strikes based on its personal sympathy for defendant’s family and their support. It is an abuse of discretion for a trial court to dismiss prior strike convictions “‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant[]’ . . . .” (Romero, supra, 13 Cal.4th at p. 531.) Although it was true that defendant’s family supported him, this did not take defendant outside the scheme of the three-strikes law. Additionally, it did not take into account the interests of society being protected from defendant. (Romero, at pp. 530-531.)
Additionally, we take issue with the fact that the trial court clearly felt that defendant should receive the same sentence as Villalobos. As noted by the People, Villalobos had only one prior strike, and the People had not agreed to the plea in that case. “The purpose of [the three strikes law] is to deter and punish recidivism by making repeat offenders serve longer sentences. [Citation.]” (People v. Williams (1996) 49 Cal.App.4th 1632, 1638.) Here, defendant committed violent crimes and had prior strikes that warranted his three-strikes sentence.
In sum, we note that the three strikes law is aimed at recidivists who have committed serious offenses. In this case, defendant committed violent crimes. The reasons the trial court cited for dismissing defendant’s attempted murder prior strike did not support its conclusion that defendant should be deemed to be outside the spirit of the three strikes law.
Since we conclude that the trial court should have imposed the three-strikes sentence, and no other discretionary sentencing decisions could be made upon remand, we will modify the sentence on appeal to 25 years to life, plus 3 years for the great bodily injury enhancement.
V
DISPOSITION
We reverse the trial court’s decision to strike one of defendant’s prior convictions. We modify the sentence to impose the three-strikes sentence of 25 years to life, plus 3 years for the great bodily injury enhancement. The clerk of the superior court is directed to amend the abstract of judgment to reflect the modified sentence and forward the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI
J.

We concur:


McKINSTER
Acting P.J.


MILLER
J.

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