Filed 1/30/18 P. v. Strickland CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

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Defendant Allen Dean Strickland pled guilty to failing to register as a sex offender within five working days after changing his address. He also admitted he had a prior conviction for burglary that qualified as a strike under the three strikes law. After denying his Romero[1] motion to strike that prior conviction, the trial court sentenced him to two years eight months in prison.

On appeal, defendant’s sole contention is that the trial court erred in denying his Romero motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 17, 2016, defendant was released from the Tehama County Jail. Because he was previously convicted of an offense that required him to register as a sex offender, his parole officer, Janet Miller, tracked him daily with a global positioning system (GPS) device. On the date of his release, Miller told him that he was required to register within five working days.

On November 22, 2016, defendant told Miller he was living with his wife and her two sons in Red Bluff. When Miller told him he needed to register with that address, he seemed hesitant to do so because he did not want to appear on the published list of sex offenders under Megan’s Law.[2]

On November 23, 2016, and December 20, 2016, defendant registered with the Red Bluff Police Department as a transient.

From November 30 to January 11, 2017, Miller made four unannounced home visits to the residence. Each time she did so, defendant was home. According to defendant’s GPS device, he spent every night at that address.

On January 24, 2017, defendant attempted to register with the Red Bluff Police Department as a transient. The police officer assisting defendant contacted the records department and learned that defendant was several days late in completing his registration. When Miller learned that defendant was at the police department attempting to register as a transient, she contacted the department and requested he be taken into custody.

On April 10, 2017, defendant was charged with failure to register as a sex offender within five working days of a change of address. It was alleged that defendant had served five prior prison terms and had a prior conviction for burglary that qualified as a strike under the three strikes law.

Defendant pled guilty to the charged offense and admitted the strike prior in exchange for the dismissal of the prior prison term allegations. At the change of plea hearing, defendant admitted the strike prior with the understanding he could file a Romero motion.

Thereafter, defendant filed a Romero motion. He argued that striking his 2005 strike prior for burglary was appropriate because the conviction occurred long ago, he had made serious efforts to change his life since the conviction, he committed the current offense to ensure his family would not be evicted from their apartment, and he voluntarily acknowledged wrongdoing at an early stage of the proceedings. Defendant claimed that he committed the current offense under circumstances of coercion or duress. He also claimed that his wife induced him to register as a transient so she and her children would not be evicted from their apartment.

The prosecutor filed a written opposition. The prosecutor argued that defendant’s motion should be denied because of his lengthy criminal history, which includes a 1995 conviction for a lewd or lascivious act upon a child under the age of 14 years, two convictions in 2002 for grand theft, a 2003 conviction for failure to register as a sex offender, a 2005 strike conviction for first degree burglary, a 2006 conviction for possessing contraband in prison, and a 2007 conviction for possessing a weapon in prison. The prosecutor further argued that the motion should be denied because the strike prior was a serious crime demonstrating defendant’s violent tendencies and dangerousness, defendant knowingly failed to register while aware of the registration requirements, and defendant expressed no remorse and took no responsibility for his conduct and suggested his wife was to blame. The prosecutor also argued that the motion should be denied because defendant’s future prospects were poor in light of his extensive and continuous criminal history and his failure identify the serious efforts he had made to change his behavior since the strike prior.

Prior to sentencing, the probation officer filed a presentence report. The report detailed defendant’s criminal history, which included all of the offenses identified by the prosecutor. However, the report added that defendant was convicted of making a false statement to/obstructing a public officer in Nevada in August 2016. The report also noted that defendant had violated parole in January 2005 and May 2016 and was returned to prison both times. In discussing the present offense, the report stated that defendant was several days late in registering as a sex offender, and that defendant claimed he attempted to register on the date he believed was the deadline to register. Notably the report did not mention that defendant was attempting to register as a transient when he was living at an apartment with his family. In recommending a prison sentence, the probation officer stated that defendant was ineligible for probation based on his strike prior. The probation officer, however, noted that she would have recommended probation had defendant been eligible for such placement.

At the outset of the hearing on the Romero motion, the court indicated that it had read the materials submitted in connection with the motion. After the parties submitted on the papers, the court stated: “In an instance like this which is a request to strike a strike, I do the obvious which is apply the Williams[[3]] case that uses five factors there. And, in four of those five factors, I believe that [defendant] does not really come up to snuff, there is some leeway on some of his background. In particular, his prospects is [sic] debatable, but certainly his past criminal history does not bode well for him. But, the actual crime itself, which is one of the five and the reason why we’re here, is nearly de minimis in my mind. It strikes a parallel with . . . the case that . . . the People cited, People vs. Carmony.”[[4]] After considering the parties’ arguments, including the argument by the prosecutor that defendant purposely lied to the police by claiming to be transient when he was actually living in an apartment with his family, the trial court granted defendant’s motion. In doing so, the court reasoned that the defendant in the Carmony case “was much more [of an] evil person than [defendant] . . . and the court [in Carmony] felt [the defendant’s conduct in that case] was de minimis. I think a four-day delay [in failing to register] is de minimis, law enforcement knew where he was, and I am going to strike the strike.” The court referred the matter back to probation to prepare a supplemental presentence report on the appropriate sentence, including terms and conditions of probation.

After the supplemental presentence report was filed on May 31, 2017, the probation officer filed a letter stating, in relevant part, as follows: “On June 12, 2017, it came to light that the offense the defendant was charged with was not addressed in the present offense section of the original pre-sentence report. The probation officer focused, in error, on the fact the defendant missed his registration deadline by three days. The actual facts of the offense are that the defendant had been residing at his address . . . since November 2016, as verified by his parole officer. For the months of November 2016, December 2016, and January 2017, when the defendant updated his sex offender registration, he listed his address as ‘transient’ and was therefore out of compliance for failing to report a change of address. [¶] Therefore, the original recommendation of state prison as set forth in the [original] pre-sentence report . . . remains.”

At the sentencing hearing, the trial court reversed its decision on the Romero motion. In finding that defendant’s failure to register was not de minimis, the court explained: “Having read [the letter from the probation department], I understand why . . . the DA and I . . . were talking about apples and oranges [at the prior hearing] . . . [¶] The clarification that the probation officer made substantiated what you were arguing to me and I was blank hearing it. [¶] With this information, it changes my view under People v. Williams. And if I remember correctly under the People v. Williams template that I had used regarding the Romero motion brought by the defense, I was particularly struck by the one particular [factor] that governs the present . . . crime, which in my view was very de minimus . . . . thought [the facts of this case] dovetailed very nicely with . . . the [[i]Carmony case] . . . n that, I thought [defendant’s] problem was, . . . and why he was being prosecuted, was that he was a couple of days late in [registering] and everybody knew where he was anyway; I find that is incorrect. I find that in reading the report, as the deputy district attorney argued, he was being prosecuted for registering as a transient when he actually was . . . living elsewhere with an actual physical address. And, I also thought that parole was the one monitoring the program and the parole officer knew where he was. Well, it turns out parole may have known where he was, but probation was the one monitoring him.” After the prosecutor indicated that defendant was being monitored by the Red Bluff Police Department, the court stated: “At any rate, the upshot of that is, again, applying [i]Williams, . . . I don’t find the present offense to be as de minimus as I once described it. [¶] So what I would be doing tentatively is . . . reversing myself on [the] Romero decision. I would impose a 16-month sentence and double it to 32 months.”

Following the trial court’s tentative decision, defense counsel argued that the court should still strike the strike prior because defendant was not trying to engage in other criminal conduct by registering as a transient; rather, he was trying to protect his family. Counsel explained that if defendant had registered as living at the address with this family, his family would have been evicted because sex offenders were not allowed to live at that apartment complex. In response, the prosecutor argued that defendant’s motion should be denied because he knowingly failed to register, which prevented law enforcement officials and the public from knowing where he was living in violation of Megan’s Law. The prosecutor also noted that defendant had served five prison terms and was on parole when he committed the current offense. In deciding to remain with its tentative decision, the trial court noted that defendant has a prior conviction for failure to register for which he received a prison term.

After denying the Romero motion, the trial court sentenced defendant to a 16-month prison term, doubled to two years eight months for the strike prior. This timely appeal followed.

DISCUSSION

Defendant contends the trial court erred in denying his Romero motion. We disagree.

Penal Code Section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, “and in furtherance of justice,” to order an action dismissed. (Pen. Code, § 1385, subd. (a).) In Romero, our Supreme Court held that a trial court may utilize Penal Code section 1385 to strike or dismiss a prior strike for purposes of sentencing under the three strikes law. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) A trial court’s ruling denying a request to dismiss a prior strike allegation “is subject to review under the deferential abuse of discretion standard.” (People v. Carmony, supra, 33 Cal.4th at p. 374.)

“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)

In Carmony, our Supreme Court explained: “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ ” (People v. Carmony, supra, 33 Cal.4th at p. 377.) The circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be extraordinary. (Id. at p. 378.) Reversal is justified where the trial court was unaware of its discretion to dismiss a prior strike or considered impermissible factors in declining to dismiss. (Ibid.) But where the trial court, aware of its discretion, “ ‘balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.’ ” (Ibid.)

In deciding whether to dismiss a prior strike allegation, a trial 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, 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, 17 Cal.4th at p. 161.)

We find no abuse of discretion. In ruling on defendant’s motion, the trial court was aware of its discretion, considered the relevant factors, and reached its decision in conformity with the spirit of the three strikes law. The decision was neither irrational nor arbitrary.

DISPOSITION

The judgment is affirmed.

/s/

Robie, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Mauro, J.