P. v. Williams

Filed 8/14/07 P. v. Williams 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Phillip M. Morris, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Elizabeth A. Missakian, 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, Barry Carlton, Supervising Deputy Attorney General, and Cheryl Sueing-Jones, Deputy Attorney General, for Plaintiff and Respondent.

This is defendants second appeal in this matter. In his first appeal, case No. E033166, defendant appealed from his convictions for robbery (Pen. Code, 211)^[1](count 1), unlawful taking and driving of a vehicle (Veh. Code, 10851, subd. (a)) (count 2), and evading a peace officer (Veh. Code, 2900.2, subd. (a)) (count 3) and from the true findings on the enhancement allegations that defendant was armed with a firearm during the commission of the robbery ( 12022, subd. (d)), that defendant had sustained two prior strike conviction ( 667, subds. (b)-(i), 1170.12, subd. (a)-(d)), and that defendant had suffered one prior prison term ( 667.5, subd. (b)). He claimed, inter alia, (1) the prosecutor committed misconduct, and (2) the trial court erred in failing to stay the terms imposed for counts 2 and 3 pursuant to section 654. In that appeal, we found that the terms imposed on counts 2 and 3 should have been stayed pursuant to section 654 and rejected the remaining contentions on appeal.

On September 15, 2004, the California Supreme Court granted review of the matter and further action was deferred pending consideration and disposition of a related issue in People v. Howard (2005) 34 Cal.4th 1129.

On June 8, 2005, the matter was transferred to this court with directions to vacate its disposition and reconsider the cause in light of Howard. We subsequently modified the judgment and remanded the matter for resentencing.

On remand, defendant filed a motion to dismiss his prior strike convictions pursuant to section 1385 (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)), arguing that the prior strikes were so closely connected that it would be an abuse of discretion not to strike one of them and that his age at the time of his strike offenses was a relevant factor the court should use to justify striking one strike. After the trial court heard testimony and arguments from counsel and took the matter under submission, it denied defendants Romero motion and resentenced defendant to a total indeterminate term of 25 years to life in state prison with credit for time served.

In this second appeal, defendant claims the trial court abused its discretion in denying his motion to strike one of his prior strike convictions. We reject this contention and affirm the judgment.

I

FACTUAL BACKGROUND^[2]

A. Current Offense

At 12:40 p.m. on June 13, 2002, two men entered Shahzad Khans liquor store. One of them pointed a gun at Khan, while the other man jumped over the counter. The man who jumped over the counter, later identified as defendant, took about $86 from the cash register and some other items, including cigarettes and lottery tickets. The two men demanded that Khan open the safe and give them the cash, or well bust you. Although a surveillance camera captured the incident, both men were wearing baseball caps and masks.

Within a minute or two, Officer Anthony Garcia arrived at Khans store and noticed a black Nissan car screech into the apartment complex behind the store. Garcia saw only the driver, a heavy-set African-American man, inside the Nissan. Two patrol cars, including Garcias, pursued the Nissan into the parking lot of a nearby strip mall. After the officers activated their lights, the Nissan stopped. While the driver remained in the car, two African-American males exited the car and ran through the parking lot in different directions.

Garcia pursued one of the men, who was not wearing a shirt, but was unable to locate him. Officer Mike McCoy, who arrived in a third patrol car, pursued the other man as he ran down the street and into a car wash. At the car wash, McCoy observed the man, who was later identified as defendant, getting into and driving away in a white Lexus.

Another officer, Sergeant Steve Davis, who was driving an unmarked vehicle, pursued the white Lexus. He noticed defendant trying to exit a parking lot into a row of cars that were stopped at a red light. Defendant accelerated into the row of cars and collided with a green van, pushing the van out of the way. After getting out of the parking lot, defendant drove onto the on-ramp going north on Interstate 215.

The officers in pursuit of defendant at this time included Officers Davis, McCoy, Briones, and Vogelsong. At some point, Officer Briones took the lead in the pursuit. There was a lot of traffic on the road during the pursuit.

On the interstate, defendant drove in and out of traffic at excessive speeds. As he exited the interstate at the Mill Street off-ramp, defendant skidded off the road into an adjacent field. Defendant then exited the car and ran toward I Street. As defendant attempted to cross the road onto I Street, he collided with Daviss car, causing defendant to fall. Davis placed defendant under arrest. Defendant had $86.95 in his right front pants pocket.

Officers found nineteen $1 bills scattered inside the white Lexus. During a search of the Nissan, the officers found clothing, lottery tickets from the liquor store, cigarettes, and a loaded handgun.

During the booking process, an officer overheard defendant saying that he had robbed a store, jumped into a Lexus, got into a high-speed chase, crashed, and was taken into custody.

By their clothing, both the driver and defendant were identified from the liquor store surveillance video. Defendants clothing matched that worn by the man shown jumping over the counter in the video.

B. Defendants Criminal Background

Defendants life of crime began in 1996 when, at the age of 14, he and his companion robbed a Taco Bell Restaurant at gunpoint. Defendants companion told the victim to open the cash register and that if he did not open the register he was going to blow the victims brains out. At that point, the manager walked over and opened the register. Defendant and his companion removed the cash and fled.

Defendant testified at the resentencing hearing that he did not necessarily feel bad for what he put [the victims] through, but he just knew what he did was wrong.

On March 25, 1997, defendant was declared a ward of the court and sentenced to the California Youth Authority (CYA) for 30 months on the substantive offense and 10 years for the gun enhancement, for a total term of 12 years 6 months. At the age of 17, defendant was paroled from CYA.

On June 28, 1999, having been on CYA parole for less than three months, defendant committed two counts of armed robbery of two separate victims. Defendant and a companion entered a Taco Bell Restaurant in San Bernardino from two different doors displaying semiautomatic handguns. Defendants cohort was wearing a black ski cap, a scarf covering his mouth, and black denim pants. Defendant was also wearing a ski mask and dark clothing and was holding a black or silver semiautomatic handgun. Defendant jumped over the counter, said, Nobody move, and demanded that the cashier open the cash registers. Defendant then asked for the manager. Defendant pointed his gun at the manager and loudly demanded that she open the safe. The manager opened the safe, and defendant removed money from the safe. Defendant then ordered the manager to open the front cash registers. The manager told her employees to comply, and defendant and his cohort removed the cash from both registers and fled in a stolen 1990 four-door Jeep Cherokee.

Officers dispatched to the area saw the stolen Jeep and followed it, activating the police vehicles overhead lights. The Jeep did not immediately stop, but when it did, the driver and his unknown cohort got out and fled into an apartment complex. The officers set up a perimeter around the building and demanded that defendant and his cohort come out. Defendant and a female exited the building; the defendants cohort later exited with the assistance of a canine officer.

Defendant was arrested and subjected to a fit-and-proper hearing under Welfare and Institutions Code section 707, subdivision (a). He was found unfit for the juvenile system and tried as an adult. He was later convicted of two counts of robbery and sentenced to three years in state prison to run concurrent to his parole violation of his prior 1996 robbery conviction.

On February 11, 2001, defendant was released from state prison and placed on parole. On March 16, 2001, defendant was approved for parole supervision in Texas, but he never left California. During that time, he was unemployed, performed unsatisfactorily on parole, and continued to engage in criminal activity. On June 13, 2001, while serving two grants of parole, he was arrested on the current offenses.

At the sentencing and resentencing hearings, defendant and his family essentially testified that defendant had lived a hard life and that he was a changed man who had learned a lot and gained insight from his mistakes and who deserved to be sentenced outside the spirit of the three strikes law. He also claimed that he had written letters to the victims and apologized. He further stated that while imprisoned he had obtained his GED (general equivalency diploma), went to fire camp, received his fire training certificate, and fought fires.

I

DISCUSSION

Defendant argues the trial court abused its discretion by refusing to dismiss one of his prior strike convictions pursuant to Romero, supra,13 Cal.4th 497. We disagree.

A trial courts decision to not dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) 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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] 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. [Citation.] 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. (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 and People v. Preyer (1985) 164 Cal.App.3d 568, 573; see also People v. Myers (1999) 69 Cal.App.4th 305, 309.)

The California Supreme Court explained, In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. (People v. Carmony, supra, 33 Cal.4th at p. 378, citing People v. Langevin (1984) 155 Cal.App.3d 520, 524 and People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Discretion is also abused when the trial courts decision to strike or not to strike a prior is not in conformity with the spirit of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); People v.Myers, supra, 69 Cal.App.4th at p. 310.)

However, [i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. [Citation.] (People v. Myers, supra, 69 Cal.App.4th at p. 310.) 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, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)

The touchstone of the analysis must be 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 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. (Williams, supra, 17 Cal.4th 148, 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)

Defendant contends the court should have granted his request to strike one of his prior strike convictions given his age, background, character, and prospects for changing his life.

We cannot conclude the trial court abused its discretion in declining to strike one of defendants prior strike convictions. The relevant considerations supported the trial courts ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendants personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams.

This case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Though defendant did not have an extensive prior record of criminal behavior, his past criminal history was serious. As noted above, he began the life of crime at an early age in 1996 and continued to repeatedly commit armed robberies thereafter. In fact, he was on two separate grants of parole when he committed the instant offenses.

The court here could not overlook the fact defendant continued to commit serious criminal offenses and violate the terms and conditions of his parole even after repeatedly serving time in prison. His conduct as a whole was a strong indication of unwillingness or inability to comply with the law. The record also shows that defendant had a tendency for violence as evidenced by his criminal convictions. He has also shown a proclivity for weapons through his use of a firearm during the commissions of the robberies. Finally, he has shown his continual disregard for the law as evidenced by his parole violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful. Indeed, defendants prospects for the future look no better than the past, in light of defendants record of prior offense and reoffense. All of these factors were relevant to the trial courts decision that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th 148, 161.)

Indeed, defendant appears to be an exemplar of the revolving door career criminal to whom the Three Strikes law is addressed. (People v. Stone (1999) 75 Cal.App.4th 707, 717.) Thus, given defendants continuous criminal history, his numerous parole violations, the seriousness of the past offenses, and his seemingly dim prospects for rehabilitation and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss one of defendants prior strike convictions. The trial courts decision not to strike defendants priors was neither irrational nor arbitrary.

Alternatively, defendant argues that one of his two 1999 armed robbery convictions should have been stricken, based on the rationale of People v. Benson (1998) 18 Cal.4th 24, 36, footnote 8 (Benson) and People v. Burgos (2004) 117 Cal.App.4th 1209, 1215 (Burgos). We again disagree.

In Benson, the court noted that there may be circumstances in which a trial court will abuse its discretion in refusing to strike one of two prior strike convictions, where the convictions are closely connected or arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct . . . . (Benson, supra, 18 Cal.4th at p. 36, fn. 8.)

Specifically, the Benson court noted: Because the proper exercise of a trial courts discretion under section 1385 necessarily relates to the circumstances of a particular defendants current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions . . . arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct . . . that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors. (Benson, supra, 18 Cal.4th at p. 36, fn. 8; see also People v. Sanchez (2001) 24 Cal.4th 983, 993 [acknowledging fn. 8 of Benson] and People v. Carmony, supra, 33 Cal.4th at pp. 374‑375 [same].)

Accordingly, Benson did not limit the factors that a trial court must consider in exercising its discretion to strike a prior strike under section 1385, even where two or more prior strike convictions are based on a single act. In such cases, the trial court still must consider the nature and circumstances of the defendants present convictions and prior strike convictions, together with the particulars of the defendants background, character, and prospects, in determining whether the defendant should be deemed outside the spirit of the three strikes law. (People v. Carmony, supra, 33 Cal.4th at p. 377; Williams, supra, 17 Cal.4th at p. 161.) Indeed, the court affirmed that the trial courts discretion under section 1385 necessarily relates to the circumstances of a particular defendants current and past criminal conduct . . . . (Benson, supra, 18 Cal.4th at p. 36, fn. 8, italics added.)

Thus, the Benson court was suggesting that a trial court may well abuse its discretion in refusing to strike one of two prior convictions provided that the convictions are based on a single act, and provided further that the defendant should be deemed outside the spirit of the three strikes law, in view of the nature and circumstances of the present and prior offenses and his background, character, and prospects. (Benson, supra, 18 Cal.4th at p. 36, fn. 8.) That is not the case here. As the trial court noted, defendant had engaged in ongoing criminal conduct, including violent criminal conduct and numerous parole violations, since his 1996 juvenile adjudication. In addition, his 1999 robbery convictions involved multiple victims. He was not the type of person who should have been deemed outside the spirit of the three strikes law.

The court in Burgos followed footnote 8 of Benson and held that the trial court abused its discretion in refusing to strike one of the defendants two prior strike convictions for attempted robbery and attempted carjacking. The court emphasized that the two convictions were closely connected and arose from a single criminal act. (Burgos, supra, 117 Cal.App.4th at p. 1216.)

Notably, the Burgos courts conclusion was not based solely on the two prior strike convictions being based on a single act. The court further observed that the defendants current offenses were not, under the circumstances, the worst of crimes, and his criminal history, aside from his current convictions and prior strike convictions, consisted of misdemeanors and one felony that did not qualify as a prior strike conviction. (Burgos, supra, 117 Cal.App.4th at p. 1216.) The court also followed the settled rule that it is appropriate to consider the term a defendant faces under the three strikes law in determining whether to strike a prior conviction. (Ibid., citing People v. Garcia, supra, 20 Cal.4th at p. 500.)

Thus, Burgos does not support defendants proposition that a trial court abuses its discretion as a matter of law if it fails to strike one of two or more prior convictions based on a single act. And even if Burgos may be interpreted as supporting this proposition, it was implicitly disapproved in People v. Carmony, supra, 33 Cal.4th at pages 376 and 377, where the state Supreme Court reaffirmed that a trial court has broad discretion and considers many factors in determining whether to strike a prior strike conviction. (See also People v. Ortega (2000) 84 Cal.App.4th 659, 667-668 [upholding refusal to dismiss one of two single act prior convictions to avoid future use as a strike, reasoning in part that trial court considers many things in exercising discretion under 1385].)

Moreover, in this case, unlike Burgos, the prior strike convictions involved more than one victim â€‘‑ the manager and the cashier â€‘‑ and essentially two separate acts where the two victims were individually robbed of two separate amounts of money from two separate locations within the store. This does not constitute a single act, but multiple acts committed against multiple victims. (See People v. Champion (1995) 9 Cal.4th 879, 935.)

Accordingly, the fact that defendants prior strike convictions were serious and violent offenses against separate persons â€‘‑ not to mention the fact that defendant was on parole for the prior convictions â€‘‑ makes the Burgos rationale wholly inapplicable to defendants sentence. In short, defendant was within the spirit of the three strikes law (see Williams, supra, 17 Cal.4th at p. 161); the trial court did not rule in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice (People v. Jordan (1986) 42 Cal.3d 308, 316); and we find no abuse of discretion (see Romero, supra, 13 Cal.4th at p. 504).

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

GAUT

J.

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

^[2] The factual background from the current offense is taken from this courts prior opinion in case No. E033166. The factual background from defendants prior convictions is taken from San Bernardino Police Report Nos. 96-57932 and 99-27696, which were submitted to the court for its consideration.