P. v. Synder






Filed 3/3/11 P. v. Synder CA2/3








NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. ALVIN SYNDER, Defendant and Appellant.

B218415 (Los Angeles County Super. Ct. No. BA333169)

APPEAL from a judgment of the Superior Court of Los Angeles County, Monica Bachner, Judge. Affirmed.

Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Alvin Synder^[1] appeals from the judgment entered following his no contest pleas to first degree burglary, grand theft of personal property, arson, and attempt to burn. He was sentenced to19 years, 8 months in prison.
Synder’s sole contention on appeal is that the trial court abused its discretion by denying his Romero motion.^[2] The People contend that, because Synder failed to obtain a certificate of probable cause, his appeal is not operative and must be dismissed. We conclude that a certificate of probable cause was not required, but Synder’s claim fails on the merits. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.^[3]
In November 2007, Synder was residing at the Union Rescue Mission (the Mission), a non-profit Christian organization located in a five-story building in the “skid row” area of Los Angeles. The Mission provides accommodations, meals, and medical and mental health services to hundreds of homeless persons. When not in prison, Synder had stayed at the Mission off and on since approximately 1997. In 2007, Synder was enrolled in the Mission’s “Christian Life Discipleship Program.” Participation in this program entitled him to housing in a more desirable section of the building than that available to the general population. In November 2007, however, the Mission’s chaplain placed Synder on a 30-day restriction for fighting with another program member. As a result, Synder was temporarily housed on the second floor with the general population and lost a variety of privileges. He was upset and argued with the chaplain.
The Mission’s administrative offices, including the cashier’s office, were located on the second floor. A storage room connected with the cashier’s office contained a safe which held the residents’ deposited money, jewelry, and valuables, as well as the Mission’s petty cash. The offices were closed and locked after 5:00 p.m., and entry could be made only with a security access card.
On the evening of December 1, 2007, Synder used his access card to gain entry to the Mission’s administrative offices. He then broke into the cashier’s office by prying open the door, and entered the storage room by jamming a nail into the locking mechanism. He pried open the back of the safe and stole money, jewelry, Christmas gifts, gift cards, and $18,000 in cash. He ransacked the storage room, throwing papers and boxes about.
Synder then intentionally set a time-delayed fire. He took a floor lamp from the storage room, removed the shade, plugged it into an outlet, and laid it on its side atop a pile of paper and a box which were arranged as an incendiary device. He then wrapped a cloth around the bulb. When a light bulb is wrapped with cloth, the cloth insulates the bulb and intense heat builds up inside. Ignition typically occurs after 30 to 45 minutes.
Videotape from the Mission’s cameras showed Synder leaving the building through a stairwell at approximately 3:20 a.m. on December 2, 2007.
At approximately 4:00 a.m. on December 2, 2007, the exposed bulb ignited the cloth and papers, setting the storage room on fire. The Mission’s fire suppression system activated, soaking everything inside the storage room. The water flooded the administrative office, ruining the carpet, cubicles, furniture, and documents. Had the sprinklers not activated, the fire would likely have spread. The fire necessitated evacuation of the approximately 800 persons who were residing at the Mission.
2. Procedure.
a. Charges, trial, and plea.
Synder was charged with first degree burglary (Pen. Code, § 459),^[4] grand theft of personal property (§ 487, subd. (a)), arson (§ 451, subd. (d)), and attempt to burn (§ 455). It was also alleged that the property loss exceeded $65,000 (§ 12022.6, subd. (a)(1)); that he had suffered a prior conviction of a serious or violent felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and that he had served four prior prison terms within the meaning of section 667.5, subdivision (b). Synder pleaded not guilty and denied the special allegations.
On April 14, 2008, Synder filed a Romero motion to strike the prior conviction allegation. On June 11, 2008, the court heard and denied the motion. Trial commenced in May 2009. After the People had completed a considerable portion of their case-in-chief, on May 14, 2009 Synder pleaded no contest to all charges as part of an open plea, and admitted the special allegations. He was informed during the plea proceeding that the maximum sentence authorized by statute was 21 years.
b. Sentencing.
The sentencing hearing transpired on August 7, 2009. Among other things, defense counsel requested that the court strike the prior conviction allegation and one of the section 667.5, subdivision (b) allegations. Counsel argued: “I would also ask the court to run the time concurrent on the two priors––one from 1988, one from 1989. They are so old. The 20-year old priors, I would ask the court to find that . . . they should be run concurrently, or at least––or stricken, at least, in terms of the sentencing, and ask the court to reduce the sentence . . . .” The prosecutor countered that although the single strike prior had been suffered approximately 20 years earlier, Synder’s crimes had increased in seriousness and sophistication, and he had not led a crime-free life for any significant period of time since the 1989 conviction. Synder was, in the prosecutor’s view, a “classic recidivist offender under the Three Strikes law . . . .” Further, the instant crimes were sophisticated, preplanned, and particularly egregious.
The trial court concluded that no mitigating circumstances existed. Circumstances in aggravation included that the crime involved great violence or threat of great bodily harm; the victims were vulnerable and numerous; the manner in which the crime was carried out indicated planning and sophistication; the crime involved an actual taking and damage of great monetary value, that is, over $300,000; Synder had engaged in violent conduct previously, indicating he presented a serious danger to society; his prior convictions were numerous; and he was on parole at the time he committed the instant offenses.
The trial court did not expressly deny Synder’s request to strike the prior conviction allegation, but sentenced him under the Three Strikes law to a term of 19 years, 8 months, configured as follows: On count 1, first degree burglary, the court imposed the high term of six years, doubled pursuant to the Three Strikes law, plus one year for the section 12022.6, subdivision (a)(1) enhancement (loss exceeding $65,000). On counts 3 and 4,^[5] grand theft and arson, the court imposed a consecutive term of one-third of the midterm, doubled pursuant to the Three Strikes law, on each count. Count 5, attempt to burn, was stayed pursuant to section 654. The court further imposed four 1-year section 667.5, subdivision (b) prior prison term enhancements. The parties stipulated to a victim restitution amount of $323,320.54, which the trial court ordered paid to the Mission. The court imposed a court security fee, a crime prevention fine, penalty assessments, a criminal conviction assessment, a restitution fine, and a suspended parole restitution fine.
At the conclusion of the hearing, defense counsel asked whether Synder would “get appeal rights‌” The court responded, “If you wish, I can give him his appeal rights, but normally I don’t do that in the context of a plea.” The court further stated: “I’m also going to state for the record that I don’t know that a Romero motion was filed. I did receive an opposition. Was one ever ruled on‌” Defense counsel responded that he believed one had been filed and denied. The court responded, “Even if one wasn’t ruled on, because I did receive that opposition, if the court were to receive one at that point, based on all the factors I described which led me to the high term on count 1, I would not have granted one. I don’t think, based on the continuing nature of the criminal record, one would have been appropriate . . . .” Defense counsel reiterated, “I’m sure I filed one. I believe it was ruled on.” The court then informed Synder he had “the right to appeal from this sentence.”
Synder did not obtain a certificate of probable cause. He appeals.
DISCUSSION
1. Failure to obtain a certificate of probable cause.
We first address the People’s contention that Synder’s appeal must be dismissed because he failed to obtain a certificate of probable cause. This contention lacks merit. Section 1237.5 provides that a defendant may not appeal from a judgment of conviction upon a plea of guilty or no contest unless he has applied to the trial court for, and the trial court has executed and filed, a certificate of probable cause for such an appeal. (People v. Shelton (2006) 37 Cal.4th 759, 766; People v. Mendez (1999) 19 Cal.4th 1084, 1095; see Cal. Rules of Court, rule 8.304(b).) “Despite this broad language, [the California Supreme Court has] held that two types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate: issues relating to the validity of a search and seizure, . . . and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (People v. Buttram (2003) 30 Cal.4th 773, 780, italics added; People v. French (2008) 43 Cal.4th 36, 43; People v. Shelton, supra, at p. 766; People v. Panizzon (1996) 13 Cal.4th 68, 74.)
“ ‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]’ ” (People v. Buttram, supra, 30 Cal.4th at pp. 781-782.) “Certificate issues encompass matters that attack the validity of the plea, and generally do not include matters occurring after entry of the plea such as a determination of the degree of the crime or the penalty to be imposed. [Citations.] [¶] . . . ‘[N]oncertificate’ issues, which do not require a certificate of probable cause, include postplea matters that do not challenge the validity of the plea, including attacks on the trial court’s discretionary sentencing choices left open by the plea agreement. [Citations.]” (People v. Williams (2007) 156 Cal.App.4th 898, 910.)
In People v. Panizzon, supra, 13 Cal.4th 68, the court held that a defendant who agrees to a specific sentence in return for his plea must obtain a certificate of probable cause as a prerequisite to bringing a constitutional challenge to the sentence. In Panizzon, a defendant pled no contest to multiple serious felonies in return for a specified sentence of life with the possibility of parole, plus 12 years. He received that exact sentence, but sought to appeal without obtaining a certificate of probable cause on grounds that the negotiated sentence constituted cruel and unusual punishment. Panizzon concluded a certificate of probable cause was required. (Id. at p. 89.) “Although defendant purports not to contest the validity of the negotiated plea,” but rather a sentence imposed after the plea, “he is in fact challenging the very sentence to which he agreed as part of the plea. Since the challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with” section 1237.5’s certificate requirement. (People v. Panizzon, supra, at p. 73; People v. Buttram, supra, 30 Cal.4th at p. 782.) Panizzon explained, “While a trial court’s error in making certain decisions after a plea may give rise to challenges that do not require compliance with section 1237.5, all the trial court did here was to sentence defendant in accordance with the previously entered plea. The mere fact that this happened a month after the plea . . . is not determinative. Moreover, that the events supposedly giving rise to defendant’s disproportionality claim occurred afterwards likewise is of no consequence. Rather, ‘the crucial issue is what the defendant is challenging.’ [Citation.] . . . [B]y contesting the constitutionality of the very sentence he negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of the plea. For that reason . . . we hold that the certificate requirement of section 1237.5 applies.” (People v. Panizzon, supra, at p. 78; see also People v. Williams, supra, 156 Cal.App.4th at pp. 910-911 [failure to obtain a certificate of probable cause was fatal to contention that court applied wrong sentencing rules, where the claim challenged both the validity of the plea and the specific negotiated sentencing terms of the defendant’s plea bargain, rather than sentencing choices left to the discretion of the court].)
In contrast, People v. Buttram, supra, 30 Cal.4th 773, held that no certificate of probable cause is required when a defendant who pleads in return for an agreed maximum sentence seeks to challenge the trial court’s exercise of discretion in imposing sentence. (Id. at p. 785.) Buttram explained, “where the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause.” (Id. at p. 783.) A negotiated plea term which provides for a maximum sentence, rather than a specified sentence, necessarily contemplates further adversary proceedings in which the court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain. (Id. at p. 785.) Buttram reasoned, “[a]n appellate challenge to the exercise of the discretion reserved under the bargain is therefore a postplea sentencing matter extraneous to the plea agreement. Such a claim may rarely have merit, but it does not attack the validity of the plea. For that reason, a probable cause certificate is not required.” (Id. at p. 777; see also People v. French, supra, 43 Cal.4th at p. 45.)
Applying the foregoing principles here, it is readily apparent that no certificate of probable cause was required. Synder entered an open plea. “An open plea is one under which the defendant is not offered any promises. [Citation.] In other words, the defendant ‘plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible sentence if the court later [chooses] to impose it.’ [Citation.]” (People v. Cuevas (2008) 44 Cal.4th 374, 381, fn. 4.) Synder was not promised any reduction in sentence or other benefit as a result of his plea. The question of whether the prior conviction allegation should be stricken was not a part of any plea agreement. Synder’s request to strike the prior conviction allegation related only to determination of the penalty to be imposed; it was not an attack on the plea itself. As in Buttram, Synder’s plea left the question of the sentence to be imposed open and necessarily contemplated further adversary proceedings in which the court would exercise its discretion to determine the appropriate sentence (People v. Buttram, supra, 30 Cal.4th at p. 785). Synder’s Romero motion sought to challenge only the trial court’s exercise of discretion in imposing sentence. The question of whether the trial court abused its discretion by failing to strike the prior conviction allegation may therefore be raised on appeal without the issuance of a certificate of probable cause. (Id. at p. 777; People v. French, supra, 43 Cal.4th at p. 45.)
The People, however, argue a certificate of probable cause was required because Synder’s formal Romero motion was heard and denied in June 2008, long before entry of his plea on May 14, 2009. Relying on the phrasing typically used by our Supreme Court to describe the relevant exception to section 1237.5, the People argue that a certificate of probable cause is required unless the challenged proceeding transpired subsequent to the plea itself. (See People v. Buttram, supra, 30 Cal.4th at p. 780 [a certificate of probable cause is not required to raise “issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed”], italics added; see also People v. Shelton, supra, 37 Cal.4th at p. 766; People v. Panizzon, supra, 13 Cal.4th at p. 74.) Because the Romero motion was denied before the plea was entered, the People argue, Synder’s appeal is not cognizable absent issuance of a certificate of probable cause.
The People are incorrect for two reasons. First, their argument ignores the oft-stated precept that, when determining whether a certificate of probable cause was required, we must look to the substance of the appeal, not the time or manner in which the challenge is made. (See, e.g., People v. Buttram, supra, 30 Cal.4th at pp. 781-782 [“ ‘ “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made” ’ ” and “ ‘the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea’ ”]; People v. French, supra, 43 Cal.4th at p. 44 [same]; People v. Panizzon, supra, 13 Cal.4th at p. 78 [fact sentencing occurred after the plea was not determinative]; People v. Hodges (2009) 174 Cal.App.4th 1096, 1103-1104; People v. Oglesby (2008) 158 Cal.App.4th 818, 824.) As we have explained, the substance of Synder’s Romero motion was not a challenge to the plea itself.
Second, the People’s argument ignores the fact that defense counsel requested, at the sentencing hearing which transpired after the plea, that the trial court strike Synder’s 1989 conviction, the prior that was alleged as a “strike.” The court impliedly ruled on this request by sentencing Synder as a second-strike defendant. The parties and court apparently did not categorize counsel’s request at sentencing as a Romero motion, as indicated by their colloquy at the end of the hearing regarding whether a Romero motion had been filed and ruled upon. Nonetheless, counsel requested that the court strike the prior conviction allegation on the ground it was remote, which is, of course, the essence of a Romero motion. Thus, a Romero motion was made, or at least reconsidered, subsequent to the plea. No certificate of probable cause was required.
2. The trial court did not abuse its discretion by declining to strike the 1989 robbery conviction.
Although Synder’s appeal is not procedurally barred, it is meritless.
In the furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (§ 1385, subd. (a); People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504; People v. Meloney (2003) 30 Cal.4th 1145, 1155.) A trial court’s refusal to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Under that standard, the party seeking reversal must “ ‘clearly show that the sentencing decision was irrational or arbitrary. [Citation.]’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (People v. Carmony, supra, at p. 378.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the [T]hree [S]trikes scheme must be even more extraordinary.” (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court must consider are “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 (1998) 17 Cal.4th 148, 161.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) We presume the trial court considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
The record before us reveals no basis for concluding Synder falls outside the spirit of the Three Strikes law. Certainly the facts of the instant offense do not favor his position. Synder benefitted from the charitable services of the Mission for years. He repaid the Mission’s generosity by committing an extremely serious theft and intentionally starting a fire that caused thousands of dollars of damage to this charitable organization’s facilities. Worse, his selfish actions imperiled hundreds of vulnerable men, women, and children who were sheltered in the Mission. The fire and theft were obviously preplanned; the arson, in particular, displayed sophisticated planning. There was no mitigating circumstance explaining Synder’s conduct: instead, he appears to have acted out of anger and greed. His actions were callous and selfish. Synder was not an impetuous youth when he committed either the instant crimes or the strike prior; he was approximately 25 years old when he committed the 1989 robbery, and 44 when he committed his offenses against the Mission.


Nor does Synder’s criminal history suggest the trial court abused its discretion. Synder has a long criminal history, starting with a 1982 conviction for trespass. In 1982 and 1986 he was convicted of unlawfully driving or taking a vehicle. In 1988 he suffered a conviction for burglary. In 1989 he suffered the challenged conviction for robbery. He was paroled in 1991 and was returned to custody four times between that date and 1997 for parole violations. During that period, he was also convicted of theft and petty theft with a prior. In 2000, he was convicted of possession of a weapon while in prison, a crime which resulted in a seven-year prison sentence. He was on parole when he committed the instant offenses. Contrary to his argument, this criminal history can hardly be characterized as insignificant. Instead, when viewed in conjunction with the instant crimes, it indicates a pattern of increasingly serious and dangerous criminal conduct. Synder’s argument that his strike prior was “very remote in time” is not persuasive. This fact has little mitigating force “where, as here, the defendant has led a continuous life of crime” after suffering the prior conviction. (People v. Pearson (2008) 165 Cal.App.4th 740, 749; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [20-year-old felony conviction not remote given defendant’s criminal recidivism; a trial court cannot be expected to “simply consult the Gregorian calendar with blinders on”].)
Synder argues that he has “taken steps to improve his life and to become a more responsible member of society.” Synder does not specify what these steps might have entailed, except to note that for the 10 years preceding the crimes he had lived at the Mission when not in prison, rather than committing additional crimes to support himself; was enrolled in the Mission’s Christian Discipleship Program in 2007; and had worked at the Mission’s mailroom and Learning Center. Further, the Mission’s chaplain had entrusted him with access to his office to care for his plants. We do not denigrate Synder’s participation in the Mission’s programs. But, even accepting the truth of Synder’s assertions, the fact he lived at the Mission and participated to some degree in its programs does not come close to demonstrating he falls outside the spirit of the Three Strikes law in light of his recidivism and the circumstances of the instant crime. Synder’s “conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense . . . . There is no indication from the record here that the court failed to consider the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the [T]hree [S]trikes law. [Citation.]” (People v. Philpot (2004) 122 Cal.App.4th 893, 906-907.) Synder’s lengthy criminal history and his current crimes demonstrate he is “the kind of revolving-door career criminal for whom the Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320; People v. Pearson, supra, 165 Cal.App.4th at p. 749.) In sum, this is not the sort of “extraordinary” case in which the defendant falls outside the spirit of the Three Strikes scheme. (See, e.g., People v. Carmony, supra, 33 Cal.4th at p. 378; People v. Philpot, supra, at p. 907.) The trial court’s failure to strike the prior conviction allegation was neither irrational nor arbitrary, and did not constitute an abuse of discretion.



DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





ALDRICH, J.


We concur:


KLEIN, P. J.




CROSKEY, J.



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