P. v. Zavala

Filed 6/25/07 P. v. Zavala CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

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The trial court granted defendant Antonio Martinez Zavalas pretrial request that it strike allegations from the information charging him, for purposes of sentencing, with having four prior serious felony convictions. (Pen. Code, 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

The People appeal, contending the trial court abused its discretion in striking the allegations. We cannot say that the trial court acted arbitrarily, capriciously, or beyond the bounds of reasons. (Peoplev.Williams (1998) 17 Cal.4th 148, 162; Peoplev.Rodrigues (1994) 8 Cal.4th 1060, 1124.) In other words, there was no abuse of discretion, and we shall affirm the judgment.

FACTS

The Prior Strike Allegations

In 1989, defendant pled guilty to seven counts of lewd and lascivious acts with a child under the age of 14. The acts arose from defendants sexual relationship between 1985 and 1987 with the son of his former girlfriend with whom he was then living; the boy was 12 and 13 years of age at the time of the offenses. The acts came to light in 1989, when a letter written by the boy containing details of the crimes was discovered.

The boy told police that, on one occasion, he sat on defendants lap, while defendant moved his buttocks around; another time, defendant touched the boys penis and the boy orally copulated defendant at defendants request; on three other occasions over two years, the boy orally copulated defendant at defendants request. The boy told police that no force was used during these incidents and that he was not afraid; defendant just asked him to do it and he did it.

A psychologists report submitted to the court prior to sentencing concluded that the factors most responsible for [defendants] deviant behavior appear to be alcohol abuse and emotional inadequacy/insecurity, coupled in the context of a disturbed relationship with the victims mother[.] In the psychologists opinion, defendant was capable of rehabilitation and did not pose any immediate danger to the safety of others; he did not opine that defendant suffers from pedophilia.

Those prior serious felony convictions had been defendants only criminal convictions, although he had been arrested for driving under the influence of alcohol prior to 1989.

The probation report prepared following the prior convictions stated the district attorney made a plea offer to defendant after considering that defendant had no criminal record, his early plea, and possible proof problems with the victim who seemed reluctant to testify and has recently declared his homosexuality.

The probation report also lists defendants residence address in Roseville.

In accordance with his plea agreement, defendant was sentenced to eight years eight months in prison.

The record shows that defendant signed a form notice of registration requirement in 1993, which listed his release address in Roseville.

He was paroled in 1993 and released from parole in 1997.

The Current Offense--Failure to Register as a Sex Offender

At the time of his arrest in the summer of 2005, defendant had been living with relatives at the address in Roseville. Police responded to a report by a family member that defendant had entered the house through the window after being kicked out for failure to pay rent to his aunt, Gloria Rios; officers subsequently discovered defendant was a sex offender and had failed to register as such.

According to police reports, defendant first told officers that he did in fact register in Roseville as required, and then admitted he did not because he was unaware he had to. He also told them that he had lived in the same house for the last 40 years, received mail at that address, and had called no other location home.

Rios, defendants aunt, told police that defendant received mail at the Roseville address, which was Rioss residence, had personal property at the house, and had lived there off and on over the years; defendant had also lived for some periods in Alabama and Woodland, but Rios could not tell officers with specificity when defendant had lived elsewhere. Rios complained to officers that defendant was constantly drinking alcohol and inviting his friends over to the house when she [was] not there.

Defendant was eventually charged with failing to register with the Roseville police as a sex offender, in violation of Penal Code section 290, subdivision (g)(2). The charges also alleged defendant had been convicted in 1989 of four serious felony convictions for violating Penal Code section 288, subdivision (a).

Defendants Motion to Strike the Prior Conviction Allegations

Defendant sought to dismiss all four of the prior conviction allegations (hereafter strikes). (Pen. Code,  1385, subd. (a). He urged the trial court to consider, among other things, the mitigating factors of defendants mental retardation; the scant proof that he knew or understood his registration obligation; the absence of actual or threatened violence in his prior offenses; and the fact that the strikes were closely connected and defendant had no other convictions. He also asked the court to consider what defendant described as the relatively harmless nature of the registration offense charged against him; that law enforcement actually knew defendants address and could have found him; the fact that the prosecutor had a stated intention to seek a three strikes 25-years-to-life sentence for the registration offense which, defendant argued, would constitute cruel and/or unusual punishment. And he urged the court to consider a statement by the victim of defendants sex crimes that probation and rehabilitation would be appropriate sanctions for defendant, not a 25-years-to-life prison term.

The People opposed the motion, arguing defendants prior strikes were not closely connected; defendant knew of his duty to register; and his alcoholism at the time of the sex crimes and continued alcohol use constituted aggravating factors.

The trial court granted defendants request, explaining:

Its been a bit of a difficult case for me because of the nature of the offenses that are the strike offenses. But in reading both the moving papers and the responding papers, in going through the mechanical analysis that I usually go through on Romero motions [People v. Superior Court (Romero), supra, 13 Cal.4th 497 (hereafter Romero)], there are certain things that jump out in this case that kind of make the other mechanical things you have to go through pale by comparison.

[The prosecutor] I know pointed out in his responsive papers that -- trying to indicate that the defendant had not an insignificant criminal record prior to the strikes. Thats kind of a two-edged sword because his criminal conduct ceased after the commission of the offenses that are the strikes. He had some DUIs and other offenses, but after he was convicted of the strikes, after he served his prison term and after he completed parole, other than this present offense, which is the failure to register, he didnt commit any crimes.

Were used to seeing, in Romero motion cases or in strikes cases, somebody who has constantly led a life of crime from prior to the strikes up to the date of the present offense that triggered the strikes or the effect of the strikes. In this case that didnt happen.

Another thing that was curious to me in this case is that obviously the defendant served time in state prison and was on parole, and I assume he was on parole for a period of three years, and he has never registered. So that means during the three-year period that he was on parole, he never registered and parole never violated his parole for his failure to register, and apparently he was supervised and didnt require him to register, so its an anomaly in this case that causes me a great deal of concern.

The usual analysis of Romero motions -- the defendants prospects, his present circumstances -- didnt really get discussed a lot in the moving papers, I think partially because the . . . circumstances he finds himself in hes challenged a little bit, and his prospects and present circumstances are a little bit of a mystery to me.

The significant thing to me is that no crimes since the strikes, and I think the strikes -- he was convicted in 1989 is my recollection. Nothing since then. That the home that he was found in was a home I believe that he lived in for 40 years. At least my concern with the 290 registration is that the person is required to register and is trying to avoid being known to the police and therefore avoiding registration. In this case my belief is the Roseville Police Department knew he was there, that he was not trying to avoid being brought to the attention of the police, so that the typical reasons, at least the danger to society presented by somebody who fails to register as a 290, dont exist in this case because he was in the same place where he had always been.

I know these are not traditional things that we think of when we are ruling on a Romero motion, and I had a great deal of difficulty because I respect [the prosecutor]s abilities and I respect his opinion. On occasion we disagree, and, [prosecutor], I think we disagree in this case.

By saying that, I dont want in any way to minimize my feelings about the strike offenses. . . . I dont want anybody to think that in making the ruling Im about to make that I at all condone that behavior, because I certainly dont.

I did send somebody to prison for 54 years to life in these very same circumstances, that is the same offense, but he had been a person that was a violent person from the time he was old enough to be violent until the day we said, well, hed suffered significant illness so he was a shell of his former self, but his whole life had been devoted to being violent to other people. And for this very same offense he went to prison for 54 to life.

. . . [B]ut I think the circumstances in this case it would be an unjust sentence to sentence this defendant to 25 years to life for this violation given the fact that he had a crime-free life but for this violation since the date of the strike offenses.

In the minutes of the hearing where it granted defendants Romero motion, the trial court wrote: Romero Motion is granted and all strikes have been stricken. The strike offenses were remote in time. Force[,] fear[,] or violence were not involved. Except for the charges now pending[,] failure to register, the defendant has remained crime free since release from prison several years ago. The defendant successfully completed parole with no violations. The present crime is not a crime of violence. A sentence to state prison enhanced by the three strike[s] would be an unjust sentence. The circumstances of the past felonies, the present felonies[,] and the defendants present circumstances all indicate that the defendant is outside the spirit of the three strikes law.

DISCUSSION

The People contend the trial court abused its discretion in dismissing defendants strikes for purposes of sentencing.

Penal Code section 1385, subdivision (a), authorizes a trial court to act on its own motion to dismiss a criminal action in furtherance of justice. (Further section references are to the Penal Code unless otherwise specified.) This power includes the ability to strike prior conviction allegations that would otherwise increase a defendants sentence under the three strike statutes. (People v. Burke (1956) 47 Cal.2d 45, 50-51, disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647; Romero, supra, 13 Cal.4th 497.)

In deciding whether to strike a prior felony conviction, the court in question 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 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. (People v. Williams, supra, 17 Cal.4th at p. 161 (hereafter Williams).) The overarching consideration in deciding whether to strike a prior conviction is the defendants sentence, because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. ([People v.] Burke, supra, 47 Cal.2d at p. 50.) (People v. Garcia (1999) 20 Cal.4th 490, 500.) Although a defendants recidivist status is undeniably relevant, it is not singularly dispositive. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 973 (hereafter Alvarez).)

The 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. [Citation.] (Alvarez, supra, 14 Cal.4th at pp. 977-978.) The standard of review for abuse of discretion is extremely deferential and restrained (id. at p. 981) and asks in substance whether the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts [citations]. (Williams, supra, 17 Cal.4th at p. 162; Peoplev.Rodrigues, supra, 8 Cal.4th at p. 1124 [abuse of discretion requires a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice].)

In their attempt to meet the standards set forth above, the People argue that the trial court here relied on invalid reasons and failed to give due weight to countervailing circumstances.

It did not. Although the court in its colloquy spoke more informally of such additional matters as whether law enforcement knew defendants residence address over the years, its written explanation of reasons showed it focused on the facts (1) the strike offenses were remote in time (the conduct on which they were based occurred nearly 20 years prior to the current crime); (2) neither the strikes nor the current crime involved violence, force, or fear; and (3) but for his failure to comply with the requirement of the sex offender registration statute, defendant had remained crime-free since his 1993 release from prison, and had completed parole with no violations. As a result, the court concluded, defendant was outside the spirit of the three strikes law, and a term of 25 years to life would be an unjust sentence.

The factual bases for the trial courts conclusion do not constitute invalid reasons. Reviewing courts have refused to find an abuse of discretion when prior conviction allegations were remote in time and did not involve violence, and/or when the current crime did not involve violence. (See, e.g., Alvarez, supra, 14 Cal.4th at p. 981; People v. Garcia, supra, 20 Cal.4th at p. 503.) Reviewing courts have also affirmed the exercise of section 1385 discretion when the current crime was not violent. (E.g., People v. Bishop (1997) 56 Cal.App.4th 1245, 1251.) Nothing in the record in this case suggests that the trial courts analysis of these factors was so irrational or arbitrary as to warrant reversal.

In sum, the trial courts decision to strike defendants prior convictions did not fall outside the bounds of reason under the applicable law and the relevant facts. (Williams, supra, 17 Cal.4th at p. 162.) Its conclusion that defendant was not a career criminal was supported by the record and, though reasonable minds might differ, we cannot say the court abused its discretion in determining that defendant was thus outside the spirit of the three strikes laws. (Cf. People v. Garcia, supra, 20 Cal.4th at p. 500.)

We reject the Peoples assertion that reversal is required because the trial court failed to give due weight to countervailing circumstances. Because the scope of our review on appeal from the courts ruling on a section 1385 motion is extremely deferential and restrained (Alvarez, supra, 14 Cal.4th at p. 981), we do not ask whether the trial court should have weighed the facts and circumstances differently. We ask only if the ruling in question falls outside the bounds of reason in light of the applicable law and the relevant facts. (Williams, supra, 17 Cal.4th at p. 162.)

Here, it did not. The People have not met their burden of showing that the trial courts ruling was arbitrary, capricious, absurd, and beyond the bounds of reason resulting in a miscarriage of justice.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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