Filed 9/5/18 P. v. Ramos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Juvencio Ramos, Jr., was convicted by jury trial of attempted burglary (Pen. Code, §§ 664, 459).[1] The trial court found true the allegation that defendant had suffered a prior felony strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court denied defendant’s Romero request to strike or dismiss the prior felony conviction allegation under section 1385, and the court sentenced him to two years in prison: the midterm of one year, doubled pursuant to the Three Strikes law. On appeal, defendant contends the trial court abused its discretion when it denied his request to strike the prior felony conviction allegation. We affirm.

FACTS

While the victims were remodeling their home, they lived in their back house and left their main house vacant. On the morning of January 6, 2015, defendant rode his bicycle, cart in tow, onto the victims’ driveway. He looked through the main house’s windows. He then acted as the lookout as his codefendant broke into the house. The codefendant forced open the back door, then dragged a generator several feet across the new kitchen floor. He apparently took nothing from the house.

Defendant denied any involvement to the police, but changed his story when he was led to believe his fingerprints had been found at the scene. He said his codefendant wanted to retrieve some items from the house and he went along to help. He acted as the lookout because he knew his codefendant had no lawful purpose to be there. Defendant left when he saw a curtain move on a window of the back house. The codefendant also spoke to the police and admitted breaking into the house.

DISCUSSION

Section 1385 grants trial courts the discretion to dismiss a prior strike conviction allegation if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) A defendant bears the burden of clearly showing the trial court’s decision not to do so was arbitrary or irrational. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, 33 Cal.4th at pp. 376-377.)

“ ‘A court’s discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with … section 1385[, subdivision] (a).’ ” (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law “was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 [“a primary purpose of the Three Strikes law was to restrict judicial discretion”].) The Three Strikes law establishes “ ‘a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,’ ” unless the sentencing court finds a reason for making an exception to this rule. (Carmony, supra, 33 Cal.4th at p. 377.) There are “stringent standards that sentencing courts must follow in order to find such an exception.” (Ibid.) In order to dismiss a prior strike conviction, “the court in question must consider whether, in light of the nature and circumstances of [the defendant’s] 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, supra, at p. 161.)

The defendant bears the burden of clearly showing the trial court’s decision not to strike a prior felony conviction allegation was arbitrary or irrational. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, 33 Cal.4th at pp. 376-377.) “[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]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.] [¶] But ‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. [Citation.] … 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. Of course, in such an extraordinary case—where the relevant factors … manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (Id. at p. 378.)

In this case, defendant’s criminal career spanned over 20 years. His prior convictions included the following: in 1995, misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)), misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), and misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), for which he received three years of probation with 170 days in jail; also in 1995, felony assault with a deadly weapon (§ 245, subd. (a)(1)), for which he received three years of probation with 325 days in jail and thereafter violated; in 1998, possession of a controlled substance for sale (Health & Saf. Code, § 11378) and misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), for which he received eight months in prison, plus three years in prison for violating probation in the previous case; in 2005, misdemeanor willful infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364), for which he received three years of probation with 45 days in jail and thereafter violated twice; in 2006, misdemeanor battery against a cohabitant (§ 243, subd. (e)(1)), for which he received three years of probation with 45 days in jail and thereafter violated; in 2006, misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), after which he failed to appear and received 90 days in jail; in 2007, misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), after which he failed to appear and received 30 days in jail; in 2007, felony growing of cannabis plants (Health & Saf. Code, § 11358, subd. (a)), for which he received three years of probation with 120 days in jail; also in 2007, first degree burglary (§ 459) and felony receiving stolen property (§ 496, subd. (a)), for which he received four years in prison; in 2013, misdemeanor theft (§ 484, subd. (a)), for which he received two years of probation and thereafter violated; also in 2013, misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), for which he received 18 months of deferred entry of judgment; also in 2013, felony carrying a concealed dirk or dagger (§ 21310), for which he received three years of probation with 365 days in jail and thereafter violated twice; in 2015, misdemeanor possession of drug paraphernalia (former Health & Saf. Code, § 11364.1), for which he received one year of probation with 10 days in jail and thereafter violated; also in 2015, misdemeanor possession of drug paraphernalia (former Health & Saf. Code, § 11364.1), for which he received two years of probation with 10 days in jail and thereafter violated; also in 2015, misdemeanor theft (§ 484, subd. (a)), misdemeanor receiving stolen property (§ 496, subd. (a)), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and misdemeanor possession of drug paraphernalia (former Health & Saf. Code, § 11364.1), for which he received three years of probation with 250 days in jail.

The 2007 first degree burglary formed the basis of the prior strike conviction allegation.

The probation officer’s report noted that defendant expressed remorse for his actions and requested leniency from the court. Defendant acknowledged being addicted to methamphetamine and said his time in custody allowed him to clear his mind and gain sobriety. His criminal history was extensive, as was his noncompliance. He repeatedly violated probation, and was on formal probation when he committed the current offense. He had been referred to outpatient treatment while on probation, but was terminated due to excessive absences. The probation officer recommended the low term of eight months, doubled to 16 months

Defense counsel argued the prior strike conviction was 10 years old, defendant’s involvement in the current crime was minimal in that he acted as the lookout and never entered the house, and his codefendant was granted probation for the crime.

The prosecutor responded that defendant knew exactly what his codefendant was doing because they had prepared for and planned the event. Defendant lied to the police about his involvement. He did not deserve an equitable sentence because of his extensive criminal history; furthermore, his prior strike conviction was for the same type of offense as his current one.

In denying the Romero request, the trial court stated:

“The Court will not grant the Romero motion, given the facts of the case here, the analysis by probation, his prior record, which is two and a half pages long. [¶] His strike [conviction] is for a burglary offense, which is what happened here. So the Court does not feel it’s in the interest of justice to strike the strike.

“I can tell you that, in my opinion, [defendant] received a huge gift from this jury in finding him guilty of attempted burglary instead of burglary. [¶] The burglary was complete when the co-defendant entered the residence with the—unoccupied residence with the intent to commit—steal the generator. The fact that he couldn’t lift the generator and remove the generator from the house does not take away from the fact that the burglary was completed upon the entry into the structure.

“However, I think the jury, feeling somewhat lenient, found that since, well, nothing was stolen, we’ll only convict him of attempted. So I think he got a huge gift in that regard. [¶] As I indicated, his record is two and a half pages long. He was on probation when he committed this offense ….”

On this record, we cannot call the trial court’s denial of the request an abuse of discretion. Defendant’s 2007 prior conviction was not remote enough to suggest he had otherwise led a crime-free life. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [“remote” carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect on the error of his ways].) On the contrary, he continued to lead a busy criminal career following his release from prison on that offense. Throughout his career, he was repeatedly granted probation, and he repeatedly failed. There was nothing extraordinary about this case that would suggest defendant did not fall within the spirit of the Three Strikes law. We see no abuse of discretion.

DISPOSITION

The judgment is affirmed.