P. v. Rosas

Filed 3/16/07 P. v. Rosas CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed.

Jennifer A. Mannix, 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, Assistant Attorney General, Lawrence M. Daniels and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Defendant Sylvia Rosas appeals following her guilty plea to one count of petty theft with a prior theft related conviction. As part of that plea, she admitted the prior conviction (carjacking) also constituted a strike under the Three Strikes Law. She claims as the sole error that the trial court failed to exercise its discretion in deciding whether to dismiss her strike under Penal Code section 1385. We believe defendant has misread what the trial court said, conclude the court in fact exercised its discretion and expressly chose not to strike her prior conviction under the Three Strikes Law, and affirm.

FACTS AND PROCEDURAL HISTORY

As this appeal involves a guilty plea, we need not dwell on the facts leading up to defendants arrest except to put in context the sentencing choice made by the trial judge. On October 10, 2005, defendant entered a clothing store, secreted a pair of pants in her purse, and left the store without paying. A loss prevention officer apprehended her outside the store, at which time defendant offered to pay for the merchandise.

Defendant eventually pled guilty to the charge and admitted that she had previously suffered a strike under the Three Strikes Law and had served one prior prison term. Prior to sentencing, defense counsel filed a Request for Court to Dismiss Prior Alleged Under Three Strikes Law Under [Penal Code] 1385. At the hearing, the court refused to dismiss the strike, and sentenced her to five years in prison, consisting of two years for the underlying offense, doubled under the Three Strikes Law, plus one year for the prior prison term.

DISCUSSION

Under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), a defendant who is subject to a second or third strike has no right to move the court for dismissal of the prior conviction in the interests of justice, but the court may do so on its own or in response to the Peoples motion. (Pen. Code,  1385; See People v. Barraza (1994) 30 Cal.App.4th 114, 121, fn. 8.) A defendant may request the court to consider dismissal of the strike on its own motion. (People v. Rivas (2004) 119 Cal.App.4th 565, 569, fn. 5; People v. Gillispie (1997) 60 Cal.App.4th 429, 432-433.) And defendant here did so.

The decision whether or not to dismiss a strike is subject to the courts discretion. (Romero, supra, 13 Cal.4th at p. 530.) Our Supreme Court has explained that in order to exercise the discretion afforded to it, a trial court must determine whether 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. (People v. Williams (1998) 17 Cal.4th 148, 161.) The same standard is used by reviewing courts in determining whether the trial court abused its discretion. (Ibid.)

Here, defendant does not claim that the trial court improperly exercised discretion. Rather, she argues the trial court did not exercise its discretion one way or the other and, therefore, abdicated its responsibilities. This contention is plainly stated in her opening brief: [Defendant] is not claiming that the present case is one where the court abused its discretion by deciding not to dismiss a strike prior. [Defendant] does not argue that the present case falls within the very narrow range of extraordinary situations where no reasonable person could disagree that the defendant falls outside the spirit of the Three Strikes law. (See People v. Carmony (2004) 33 Cal.4th 367, 378-379.) [] The error in the trial courts ruling is a failure to actually exercise its Romero discretion. (Italics in original.)

The argument that the trial court here erred because it failed to understand the discretion it had harkens back to a series of cases that occurred in the immediate aftermath of the issuance of the Supreme Courts Romero opinion. It was in Romero that the Supreme Court first held that a trial court had the power on its own to dismiss a strike. (Romero, supra, 13 Cal.4th at p. 530.) Not surprisingly, at the time there were a number of cases pending on appeal in which the trial court had indicated that it lacked discretion to strike a strike. Remand for the sentencing judge to exercise discretion was often required. (See, e.g. People v. Moenius (1998) 60 Cal.App.4th 820, 823; People v. Nguyen (1997) 54 Cal.App.4th 705, 720.) Thus, in People v. Robles (1996) 51 Cal.App.4th 627, 630 criticized on another point People v. Fuhrman (1999) 16 Cal.4th 930, 944, the trial court said it could not dismiss the strike because it was constrained thus far by Romero, referring to the then existing Court of Appeal decision in Romero. (Cf. People v. Thompson (1992) 7 Cal.App.4th 1966, 1975 [I want the record quite clear that in relation to count III, . . . the court is not exercising any discretion whatsoever . . . so that if there is a question on appeal with regard to that, I have not exercised any discretion in this case]; Pen. Code,  654.)

We agree with defendant that if the trial court had failed to exercise the discretion granted to it, a remand for resentencing would be appropriate. But, more dispositively in this case, we agree with the Attorney General that the trial court here understood the nature of the discretion afforded to it and chose not to dismiss the strike for lawful reasons.[1]

To put into context the trial courts ruling, we recall that it was made in response to defendants formal request for dismissal of defendants strike. That written request used the word discretion 10 times. On the first page of defendants points and authorities, defendant argued in boldface: This Courts Discretion Is Very Broad And Will Seldom Be Abused. At the sentencing hearing, nearly the first words from defense counsel were: I know that this court doesnt need any more instructions on Romero. Romero, of course, gave the trial courts the discretion many of the appellate decisions up to that time found did not exist. (See People v. Furhman, supra, 16 Cal.4th at p. 942.) Later, defendants attorney summed up his argument: I dont know I leave it to this courts discretion about what what the court believes is punishment enough for this conduct. The District Attorney did not argue that the court lacked discretion; on the contrary he conceded it: And the court does have discretion in furtherance of justice to strike a prior strike. It is with this backdrop that the court proceeded to announce its sentencing decision.

Most of what the court had to say dealt with the prior carjacking conviction itself. Defendants involvement apparently was as a decoy and her conduct caused the cars driver to stop, enabling her co-conspirators to effect the carjacking. Her claim that she was a pawn of the others was not believed by the jury at the carjacking trial and was not believed by the trial judge here. The fact that the trial court considered the pawn argument, weighed the competing factors, and concluded that the defendant was not as blameless as her counsel painted suggests that the trial court was in fact exercising its discretion. The courts concluding remarks dispel any uncertainty: Those are all factors the court has to consider in determining whether or not she is within or without the three strikes scheme, and I cant find that she is without. I therefore find that she is within and appropriately sentence pursuant to the three strikes. The use of the word scheme, part of the key phrase in the Supreme Courts opinion in Williams (schemes spirit) demonstrates the trial judges awareness of the very test for exercising discretion under the Three Strikes Law. (People v. Williams, supra, 17 Cal.4th at p. 161.)

Defendants argument that the court misunderstood its authority seizes upon one phrase in the sentencing statement: Under the current state of the law, I cannot find that [defendant] is outside the spirit of the three strikes law . . . . The phrase under the current state of law is liberally sprinkled throughout both the opening and reply brief as if its mere presence demonstrates axiomatically that the trial court failed to grasp its power. The contrary is true. The use of the word spirit is also taken from Williams, thus also suggesting the trial court well comprehended its discretion. To the extent defendant quarrels with the phrase I cannot find, we treat it as synonymous with I do not find that defendant is outside the spirit of the Three Strikes Law.

Romero requires a defendant to show that the record affirmatively discloses that the trial court misunderstood the scope of its discretion. (People v. Fuhrman, supra, 16 Cal.4th at p. 944; See Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment,  372.) Not only has defendant failed to make the required showing, the trial court in fact exercised its discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

BOLAND, J.

FLIER, J.

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[1] Because defendant does not claim the trial court abused its discretion, we have no occasion to analyze whether the trial court reasonably could have concluded that defendant was outside the spirit of the Three Strikes Law. (People v. Williams, supra, 17 Cal.4th at p. 161.) Nevertheless we observe that the trial court properly considered in its sentence choice that defendant had previously been to state prison for a serious offense, spent additional time in county jail for a case involving violence, and her criminal activity had become more and more serious.