P. v. Stugard

Filed 10/18/07 P. v. Stugard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Syda Kosofsky, under appointment by the Court of Appeal, for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant was convicted by jury trial of second degree burglary (Pen. Code,  460, subd. (b)).^[1] He waived a jury trial as to the prior strike conviction allegation and the trial court then found true the prior conviction allegation. At sentencing, the trial court denied defendants motions to strike the prior strike conviction and to reduce the burglary conviction to a misdemeanor. The court imposed the low term of 16 months and doubled it to 32 months. On appeal, defendant contends that the trial court abused its discretion by denying his motion to strike the prior conviction and by denying his motion to reduce the burglary conviction to a misdemeanor. Finding no abuse of discretion, we affirm.

FACTS

On September 18, 2006, the police were called about a possible intruder in a vacant building that had formerly been used as an auto repair shop. The former tenant had left some tires and a vending machine inside the building. A neighboring business owner and his wife saw someone inside the building and called the police. When the responding officer approached the front of the building, he could see defendant inside near the vending machine. The building showed no signs of forced entry. The officer entered the building through an unsecured front door. In response to the officers command, defendant and his brother came out from inside the building.

A hammer was found on the ground near the vending machine. The machine was damaged around the area where money is inserted. No fingerprints were found on the hammer or the machine. Nothing was uncovered during a search of defendant.

The building had been inspected a few days earlier by a property manager, who confirmed that the doors to the building had been locked. The manager also confirmed that the hammer had not been in the building and the vending machine had been in good condition.

Defendant was charged with second degree burglary and it was alleged that in 1992 he was convicted of a prior serious felony offense for attempted robbery. He served a prison term for that offense. His criminal history included being placed on probation in 1991 for being under the influence and driving under the influence; in 1994 he was placed on probation following charges of driving with a suspended license and violating the seatbelt law; also in 1994 he had a petty theft conviction; he had a parole violation in 1995; in 2003 he was charged with operating a bicycle on the wrong side of the street, being under the influence, possessing narcotics paraphernalia and failing to appear; in 2004 he was placed on probation for misdemeanor burglary and forgery and charged with being under the influence and failing to appear. The 2004 misdemeanor convictions for burglary and forgery resulted from the court reducing the felony convictions to misdemeanors pursuant to section 17, subdivision (b).

DISCUSSION

Defendants first contention is that the sentencing court abused its discretion by refusing to strike the 1992 conviction. Under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court retains discretion pursuant to section 1385 to dismiss one or more of defendants prior convictions for sentencing purposes based on a consideration of defendants background, nature of his present offense and other individualized considerations. (Id. at p. 531.) Defendant argues that the sentencing court, in the exercise of its reasonable discretion, should have struck the 1992 conviction and that its failure to do so constituted an abuse of discretion. We disagree.

The California Supreme Court has made clear 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 (2004) 33 Cal.4th 367, 377.) Indeed, it is an extraordinary case where the failure to strike would amount to an abuse of discretion. (Id. at p. 378.)

The sentencing court below considered defendants prior convictions, time served in prison, unsatisfactory performance on probation and parole and found no mitigating circumstances. Given his criminal history, this matter does not rise to the level of an extraordinary case mandating the striking of the prior conviction. The trial judge indicated that defendants recidivism did not justify striking the strike and therefore refused to do so. We find no abuse of discretion.

Defendant also sought to have the burglary conviction reduced to a misdemeanor under section 17, subdivision (b). Again, defendant contends that the trial court abused its discretion in denying the motion to have the conviction reduced to a misdemeanor. Consideration of a request to reduce an offense to a misdemeanor pursuant to section 17, subdivision (b), rests solely in the discretion of the trial court. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) In exercising that discretion, the court must consider several factors, including the nature and circumstance of the current offense, defendants attitude, his traits or character and his history. (Id. at p. 978.) Here, the sentencing judge reiterated the lengthy criminal history of defendant and noted that charges in 2004 had been reduced to misdemeanors pursuant to section 17, subdivision (b), and yet defendant committed the instant felony thereafter. There was no abuse of discretion in denying the request under section 17, subdivision (b).

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Gomes, J. and Kane, J.

^[1] All statutory references are to the Penal Code unless otherwise noted.