P. v. Stevens

Filed 9/28/07 P. v. Stevens 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge. Affirmed.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.

During an undercover operation, defendant sold rock cocaine to plainclothes police officers five distinct times. To avoid exposing the undercover operation, however, he was not arrested until a uniformed officer happened to come across him, evidently in the middle of a drug sale; defendant threw something to the ground, which the officer promptly retrieved and which turned out to be rock cocaine.

A jury found defendant guilty on five counts of selling cocaine base (Health & Saf. Code,  11352, subd. (a)) and one count of possession of cocaine base for the purpose of sale (Health & Saf. Code,  11351.5). Defendant admitted a prior drug conviction enhancement with respect to each count (Health & Saf. Code,  11370.2, subd. (a)), two 1-year prior prison term enhancements (Pen. Code,  667.5, subd. (b)), and one strike prior (Pen. Code,  667, subds. (b)-(i), 1170.12). As a result, defendant was sentenced to a total of 23 years 8 months in prison.

Defendant now contends:

1. The trial court erred by admitting evidence of a prior instance in which defendant was found in possession of rock cocaine for the purpose of sale.

2. The admission of a hearsay statement to a police officer violated the confrontation clause.

3. The trial court erred by denying defendants motion to strike the strike prior.

4. Consecutive sentencing based on facts not found by a jury beyond a reasonable doubt violated the Sixth Amendment.

We find no prejudicial error. Hence, we will affirm.

I

FACTUAL BACKGROUND

A. March 17, 2005.

Each of the following transactions was videotaped, and the videotapes were played for the jury.

1. Count 1.

On March 17, 2005, defendant was at University Avenue and Dwight Avenue in Riverside when an undercover police officer approached him and asked, [Y]ou know where can I get a dub? A dub means $20 worth of drugs. Typically, $20 will buy 0.20 to 0.25 grams of rock cocaine.

Defendant said, Y[e]ah, pointed to a bubble gum wrapper on the ground, and told the officer to pick it up. Inside the wrapper, the officer found a rock of cocaine weighing about 0.21 grams. The officer asked, You want the money? Where you want it? Defendant told him to put it on the ground. The officer did so.

2. Count 2.

Later on March 17, 2005, defendant was still at University and Dwight when a second undercover officer approached him and asked, Where can I get hooked up? Defendant replied, What you looking for anyway? The officer said, Just a twenty. A twenty means $20 worth of drugs.

Defendant told him to wait, then walked across the street to where one Curtis Robinson was standing by a parked van. Defendant talked to Robinson, then started back across the street. Meanwhile, defendant nodded to the officer, who therefore started walking toward him.

As they passed each other in the middle of the street, defendant said, I dont fuck around[,] man[,] but[] you can holl[e]r at dude right there, gesturing toward Robinson. Without speaking, Robinson gave the officer a rock of cocaine weighing about 0.24 grams, and the officer gave Robinson $20.

The officer admitted that I dont fuck around; holler at that dude, meant that defendant did not sell drugs, but Robinson did. He testified, however, that drug dealers often deny selling drugs, sometimes even in the midst of a drug transaction.

B. April 14, 2005.

Once again, each of the following transactions was videotaped, and the videotapes were played for the jury.

1. Count 3.

On April 14, 2005, defendant was at University and Dwight when the original undercover officer approached him again and asked, [Y]ou know where I can get a twenty? Defendant said, Y[e]ah, adding, Come on back here in the alley . . . . Once there, he gave the officer a rock of cocaine weighing about 0.15 grams, and the officer gave him $20.

2. Counts 4 and 5.

Later on April 14, 2005, defendant was still at University and Dwight; one Mr. Hawkins was with him. The second undercover officer ‑‑ this time accompanied by a third undercover officer ‑‑ approached defendant and said he wanted a dove. A dove is synonymous with a dub; they both mean $20 worth of drugs.

Defendant said, Y[e]ah and told the officers to wait. Defendant and Hawkins walked away. Hawkins came back briefly, told the officers that defendant would be right back, then went away again. Finally, defendant and Hawkins both came back. Defendant gave the officer a rock of cocaine weighing about 0.13 grams, and the officer gave him $20.

The third officer then asked, Can we have another one? He had to ask several times before defendant responded, You want a dub to[o]? Defendant seemed upset; he complained, You should have told me that, I gotta walk all . . . . However, defendant and Hawkins left, then came back; defendant gave the third officer a rock of cocaine weighing about 0.15 grams, and the officer gave him $20.

Hawkins always stayed near defendant, but he was not involved in handing over the drugs or taking the money. In one officers opinion, he was a lookout.

C. April 17, 2005: Count 6.

On April 17, 2005, around 4:00 p.m., a police officer on patrol was going down an alley behind the Welcome Inn, on University near Dwight, when he noticed defendant and one Darlene Smith. It appeared that one of them was handing something to the other (however, his police report did not mention this). When they saw the patrol car, they did an about-face and began walking away from each other.

Just as defendant turned, the officer saw him drop a paper or plastic bag. The officer stopped, got out of the car, and ordered both defendant and Smith to halt. In the area where defendant had dropped something, the officer found a plastic baggie containing 4.16 grams of rock cocaine. A police expert testified that, in his opinion, defendant was in possession for the purpose of sale.

II

DISCUSSION

A. Evidence of Prior Possession of Rock Cocaine for Sale.

Defendant contends that the trial court erred by admitting evidence that he had committed a prior drug offense.

1. Additional factual and procedural background.

The prosecution filed a motion in limine for leave to introduce evidence that defendant had three specified prior convictions (1) attempted robbery, in 2000; (2) simple possession of cocaine, in February 2001; and (3) possession of cocaine for sale, in October 2001 ‑‑ to impeach defendant in the event that he testified. At the hearing on the motion, however, the prosecutor stated that she was also seeking to introduce evidence of the two drug-related prior convictions as evidence of knowledge, intent, and a common plan or scheme.

Defense counsel argued that the prior offenses were not sufficiently similar to the charged offenses. He also argued that the evidence was more prejudicial than probative. (Evid. Code,  352.) He offered to stipulate that defendant had knowledge of both the presence and the nature of the rock cocaine in this case.

The trial court excluded evidence of the conviction for simple possession of cocaine but admitted evidence of the conviction for possession of cocaine for sale. It rejected defendants proposed stipulation because [t]hat doesnt . . . address the issue of intent, it doesnt address the issue of common plan or scheme, it doesnt address motive and other elements, and once the defense pleads not guilty to all charges, it raises all issues.

Accordingly, at trial, a police officer testified that on October 2, 2001, he was on patrol at the University Lodge motel when he saw a known probationer come out of one of the rooms. The officer looked inside the room and saw defendants younger brother, Shawn Stevens, throw something to the ground. The officer picked it up; it turned out to be three grams of rock cocaine.

At that point, defendant walked up; he said that he was renting the room and that anything that we had found inside the room belonged to him. When the officer said he had found rock cocaine, defendant said again that it belonged to him. Defendant was searched and found to have $385 in cash, a cell phone, and a pager. In the officers opinion, defendant, his brother, and the probationer were all selling rock cocaine.

At the request of both the prosecution and the defense, the trial court instructed the jury: Evidence has been introduced for the purpose of showing that the defendant committed a crime other than that for which he is on trial.

This evidence, if believed, may not be considered by you as [sic] to prove that [d]efendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show:

A characteristic method, plan, or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent, which is a necessary element of the crime charged; or the identity of the person who committed the crime, if any, of which the defendant is accused; or a clear connection between the other offense and the one of which the defendant is accused, so that it may be inferred that if the defendant committed the other offenses, [d]efendant also committed the crimes charged in this case; the existence of the intent which is a necessary element of the crime charged; a motive for the commission of the crime charged; the defendant had knowledge of the nature of things found in his possession; the defendant had knowledge or possessed the means that might have been useful or necessary for the commission of the crime charged. (CALJIC No. 2.50.)

In closing argument, the prosecutor stated: I also want to talk just briefly, because you may be wondering to yourself, Why did I hear about this 2001 incident between the defendant and his younger brother ‑‑ I believe his name was Shawn Stevens â€‘‑ at the Welcome Inn [sic; sc. University Lodge] back in 2001? The reason you heard that evidence . . . was for you to be able to take into consideration that evidence to determine whether or not the defendant in any of our six counts had the same intent, common scheme and plan, and motive to sell drugs. After summarizing the evidence of the 2001 incident, the prosecutor concluded: So clearly you can take that piece of evidence into consideration, and the law permits you to do so, in deciding if defendant had the same intent of drug dealing on March 17, on April 14, and on April 17.

2. Analysis.

Under Evidence Code section 1101, [e]vidence of the defendants commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. [Citation.] Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.] [Citation.] In cases in which [a party] seeks to prove the defendants identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity. [Citation.] A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. [Citation.] On appeal, we review a trial courts ruling under Evidence Code section 1101 for abuse of discretion. [Citation.] (People v. Abilez (2007) 41 Cal.4th 472, 500, quoting People v. Gray (2005) 37 Cal.4th 168, 202.)

When a defendant is charged with a drug-related offense, evidence of a prior offense involving the same drug is normally admissible to show that the defendant had knowledge of the nature of the substance. (People v. Thornton (2000) 85 Cal.App.4th 44, 47.) Defendant does not appear to argue otherwise. Significantly, he also does not argue that his offer to stipulate that he had such knowledge made the evidence inadmissible for this purpose. (See id. at pp. 48‑49.)

The evidence of the prior offense was not so prejudicial as to require its exclusion under Evidence Code section 352. It showed a fairly run-of-the-mill instance of drug possession for sale. There was uncontradicted evidence, in connection with the charged offenses, that defendant actually participated in drug sales at least five times in 2005. Given this evidence, the evidence of the prior offense was not particularly inflammatory.

The trial court, however, ruled that the evidence was also admissible to show both motive and a common plan or scheme. In this case, motive was essentially the same thing as intent ‑‑ i.e., evidence that defendant acted with the intent to sell in 2001 was offered to show that he also acted with the intent to sell in 2005. To be admissible to show intent, the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1194, quoting People v. Yeoman (2003) 31 Cal.4th 93, 121.) In 2001, defendant was in the University Avenue area, selling rock cocaine with the assistance of accomplices. In 2005, defendant was found in the University Avenue area, in possession of rock cocaine and selling rock cocaine, often with accomplices. Neither in 2001 nor in 2005 was there any evidence that defendant was in possession of any paraphernalia that might have indicated possession for personal use. This was sufficient similarity to make the evidence admissible to show intent.

Defendant argues, however, that the only intent required for the five charged counts of selling rock cocaine (Health & Saf. Code,  11352, subd. (a)) was the general intent to sell narcotics, which he equates to knowledge of the presence and nature of the controlled substance. Not so. Even though this is a general intent crime, it does require that the sale be intentional. (People v. Daniels (1975) 14 Cal.3d 857, 861.) Admittedly, the evidence that the five completed sales were intentional was quite strong. This, however, does not go to whether the evidence was relevant to show intent under Evidence Code section 1101, but only to whether it was cumulative under Evidence Code section 352.

In any event, as defendant essentially admits, the sixth count, possession of cocaine base for the purpose of sale (Health & Saf. Code,  11351.5), did require the specific intent to sell. (People v. Parra (1999) 70 Cal.App.4th 222, 226-227 [Fourth Dist., Div. Two].) A police expert testified that defendant had the intent to sell, because the quantity of rock cocaine was relatively large, the area was used for drug sales, the rock was in a baggie, defendant had a cell phone, and defendant did not have any paraphernalia. This evidence, however, was far from indisputable. Everybody has a cell phone nowadays; defendant might have been in the area to buy drugs, which might have been handed to him in a baggie. Moreover, defendant had only $23 in cash, which was somewhat inconsistent with selling drugs. Accordingly, the prior offense was also relevant to show intent in connection with this count, and for this purpose, it was not cumulative.

To be admissible to show a common plan or scheme, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 586, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 403.) We do question whether there was sufficient similarity to show that defendants drug sales in 2001 and 2005 were not separate spontaneous acts. Assuming, however, without deciding, that the trial court erred, we cannot see how defendant was prejudiced. As we have already held, the prior offense was properly admitted as evidence of knowledge and intent. The six charged offenses were, in themselves, fairly strong evidence that defendant had an overall plan or scheme to sell drugs in 2005. Precisely because the evidence that the prior offense was part of the same common plan was weak, at best, we do not believe the jurors would have found that it was; but even if they did, that finding would not have had any effect on their ultimate determination of guilt or innocence. Thus, the assumed error was harmless under any standard.

Defendant does not contend that the trial court misinstructed the jury concerning the prior offense. Hence, he has forfeited any such contention. We note, however, if only out of an excess of caution, that his counsel joined in affirmatively requesting the relevant instruction. To the extent that the instruction told the jury that it could consider the prior offense as evidence of knowledge, motive, intent, or a common plan or scheme, arguably defense counsel was merely acquiescing in the trial courts in limine ruling. To the extent, however, that the instruction told the jury that it could consider the prior offense as evidence of anything else, any resulting error was invited. (People v. Davis (2005) 36 Cal.4th 510, 539; People v. Cooper (1991) 53 Cal.3d 771, 831.)

We therefore conclude that the trial court did not err by admitting the evidence of the 2001 offense.

B. Smiths Hearsay Statement to a Police Officer.

Defendant contends that the admission of a hearsay statement to a police officer violated his rights under the confrontation clause as construed in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177].

1. Additional factual and procedural background.

The police officer who ultimately arrested defendant testified:

A. . . . I detained the female to the front of the patrol car, and as I was detaining her, she immediately started acting nervous and saying ‑‑

[DEFENSE COUNSEL]: Im going to object. Hearsay. Beyond this point.

THE COURT: Exception?

[PROSECUTOR]: Spontaneous statement, [y]our Honor.

THE COURT: Perhaps against penal interest?

[DEFENSE COUNSEL]: As to her, yes. As to him, no. [] . . . []

THE COURT: Okay. Rephrase the question.

Q. (BY [THE PROSECUTOR] When you spoke to Ms. Smith, can you describe her demeanor for us?

A. Yeah. When I was speaking with her, she became extremely nervous.

Q. What made you say that?

A. Her actions, as far as she was looking around kind of frantically, started blurting out information quickly.

[DEFENSE COUNSEL]: Object. Hearsay.

THE COURT: Overruled.

[PROSECUTOR]: You may continue, sir.

THE WITNESS: Blurting out information rather quickly before I even asked any questions or anything of that nature.

Q. (BY [THE PROSECUTOR] Can you tell us what she blurted out to you, sir?

[DEFENSE COUNSEL]: Im going to object. Absolute hearsay.

THE COURT: Overruled.

[PROSECUTOR]: You may respond, sir.

THE WITNESS: . . . [I]t was something to the effect that It wasnt mine. He was trying to sell me a bag.

[DEFENSE COUNSEL]: Your Honor, Aranda/Bruton. Object. Its hearsay.

At that point, the trial court excused the jurors so it could hear argument. Defense counsel argued that the evidence was additionally inadmissible under Crawford. This colloquy followed:

THE COURT: All right. You would agree with me that . . . whatever statement she made is hearsay. Correct?

[PROSECUTOR]: Correct.

THE COURT: What is the specific exception that would make that hearsay statement admissible under these circumstances?

[PROSECUTOR]: I believe the exception is spontaneous statement . . . .

THE COURT: No it is not. . . . [I]t [also] is not a declaration against her penal interest . . . . I dont see any exception . . . .

. . . [A]nd theres also concerns about . . . the confrontation clause, as . . . addressed by the recent case of Washington versus Crawford.

So the Court would at this time preclude further testimony along these lines and also strike the answer . . . with respect to statements attributed to the female.

The trial court then asked:

THE COURT: How do you want the Court to address that right now? You want me to tell the jury to disregard the answer that was interrupted? Do you want to bring attention to it in that way or just ignore it?

[DEFENSE COUNSEL]: I hope that the answer was not heard, but ‑‑

THE COURT: I dont know if it was heard, but its transcribed and its in the record.

[DEFENSE COUNSEL]: Then I would have to ask the Court to tell the jury to disregard any sort of response after . . . the officer began saying she said . . . .

THE COURT: All right. the record reads, quote,  . . . [I]t was something to the effect that It wasnt mine. He was trying to sell me a bag.

[DEFENSE COUNSEL]: Oh, Lord, that changes things. Now I have to ask for a mistrial.

The trial court denied the motion. It noted,  . . . I think that we were all surprised to hear what the record reflected, because the court reporter apparently picked up two conversations at once. . . . He needs to be commended for that. But for the rest of us, I think when I read it back, as [defense counsel] stated . . . that changed everything, because it was apparently different from his interpretation and hearing . . . . It indicated that it would admonish the jury to disregard the officers response.

When the jurors returned, the trial court told them: I . . . instructed you . . . that you were not to consider for any purpose any offer of evidence that is rejected or evidence that is stricken by the Court. You are to treat it as though you had never heard of it.

Before we took this afternoons recess, a question was asked and was pending, and a partial answer was received. That answer has been stricken permanently from the record. You are not to consider what, if anything, you heard regarding that matter. You are not to discuss it among yourselves or with anyone. You are to ignore whatever partial answer you heard prior to the break.

2. Analysis.

Defendant argues that Smiths statement to the police officer was inadmissible under Crawford. We need not decide this question, however, because ultimately, the trial court sustained defendants objection, struck the statement, and admonished the jury to disregard it.

Defendant therefore argues that the trial courts admonition was inadequate to cure any prejudice. It must be presumed that the jurors acted in accordance with the instruction and disregarded the question and answer. [Citations.] (People v. Cox (2003) 30 Cal.4th 916, 961.) Defendant argues that Smiths statement was highly prejudicial and that the sequence of events ‑‑ including two objections that were overruled before the third objection was sustained ‑‑ tended to highlight Smiths statement. Certainly the jury might have realized that the matter was contentious; the trial courts final decision, however, was to strike the evidence and to admonish the jury to disregard it, and this would have had the greatest impact on the jury.

Moreover, defendant disregards the trial courts finding that, because two people had been talking at the same time, the crucial testimony had largely gone unheard. Even defense counsel apparently did not hear it clearly. Thus, the trial court had discretion to conclude that the jurors would be able to comply with its admonition to disregard the evidence.

C. Motion to Strike the Strike Prior.

Defendant contends the trial court erred by denying his Romero motion.^[1]

At the time of sentencing, defendant was 25 years old. His criminal record consisted of the following:

1. A conviction in 2000 for attempted robbery, a felony. (Pen. Code,  211, 664.) He was placed on probation.

2. A conviction in February 2001 for possession of a controlled substance, as a felony. (Health & Saf. Code,  11350, subd. (a).) Apparently as a result of this offense, his probation on his 2000 attempted robbery conviction was revoked, and he was sentenced to 16 months in prison.

3. A conviction in October 2001 for possession of a controlled substance, a felony. (Health & Saf. Code,  11351.) He was sentenced to four years in prison; in addition, his parole on his February 2001 conviction was revoked.

Defendant committed the current offenses while on parole for both the February and October 2001 convictions.

When the probation officer interviewed defendant, he admitted selling drugs, on and off, for five to six years.

Prior to sentencing, defendant filed a Romero motion. He argued that, as a general legal principle, a trial court has discretion to strike a strike; however, he did not explain why the trial court should do so in his particular case. Instead, he merely asked it to strike the prior strike conviction for factual reasons to be addressed at the time of sentencing. (Italics added.)

Even at sentencing, however, defense counsel did not state any reasons why the trial court should strike the strike. The trial court denied the motion.

On this record, the denial of the motion cannot possibly be described as an abuse of discretion. The trial court was not obliged to come up with arguments in favor of granting the motion when defendants own counsel was unable to do so.

In this appeal, defendant belatedly argues that (1) the six current offenses actually took place on only three separate dates, (2) the officers took unfair advantage of defendant by not arresting him after the very first drug sale, (3) the strike prior did not involve a weapon, (4) defendants criminal history is not lengthy, (5) defendant is young, and (6) defendant has no known gang affiliation.

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. (People v. Carmony (2004) 33 Cal.4th 367, 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.) Even taking the factors on which defendant relies at face value, they do not constitute such extraordinary circumstances, whether alone or together.

We also note that several of the factors listed are misleading, at best. Even though the police only caught defendant on three separate dates in March and April 2005, he admitted that he had been selling drugs for five or six years. Defendant does not cite any portion of the transcript showing that the strike did not involve a weapon, and we have found none. Although defendant was only 25 at sentencing, his criminal history dated back to when he was 18; inferably, that criminal history is relatively short only because he is relatively young. And defendant omits to mention that he was never able to complete either probation or parole successfully.

Defendants claim that the police contributed to his criminality by failing to arrest him immediately after his first drug sale did not impress the jurors and does not impress us, either. The police conduct did not even remotely resemble entrapment. At trial, a police officer explained that arresting defendant (or any of the other drug dealers involved) would have jeopardized the ongoing undercover operation. But for the fact that this argument is coming from defendants counsel, and not necessarily from defendant himself, this attempt to evade responsibility would, if anything, place defendant even more squarely within the compass of the three strikes law.

We therefore conclude that the trial court did not abuse its discretion by denying defendants Romero motion.

D. Consecutive Sentencing Not Based on Jury Findings Beyond a Reasonable Doubt.

Defendant contends that the trial courts imposition of consecutive sentences based on facts not found by a jury beyond a reasonable doubt violated the Sixth Amendment. (See generally Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]; Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

While this appeal was pending, the California Supreme Court rejected an identical contention. (People v. Black (2007) 41 Cal.4th 821-823.) We are therefore obligated to reject it in this case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

MILLER

J.

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^[1] A Romero motion is a motion to dismiss a strike prior in the interest of justice under Penal Code section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)