P. v. Berryman

Filed 7/19/07 P. v. Berryman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Mark Anthony Berryman appeals from the judgment following his guilty plea to two counts of forgery and one count of second degree commercial burglary. (Pen. Code,  476, 470, subd. (d), 459.)[1] Appellant admitted that he had suffered one prior serious felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds .(a)-(d)) and served a prison term for three prior felony convictions ( 667.5, subd. (b)). Appellant contends that the court abused its discretion in denying his motion to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.

Appellant entered a Wells Fargo Bank on June 15, 2006, and tried to cash check No. 3057, payable to him in the amount of $895, drawn on the account of Torrey and Holly Friberg. Because the check was out of sequence, the teller required appellant to provide two forms of identification and a thumb print. Appellant left the bank while the teller was trying to reach the Fribergs for authorization to cash the check. The Fribergs did not know appellant and had not issued any check to him. Their check No. 3057 was issued to the cable company in the amount of $19.

During sentencing, the trial court denied appellant's Romero motion to dismiss his prior strike conviction and made the following observations: "[I]n order to get a strike stricken you have to be somewhat deserving of it. So, he gets a strike and then he gets this other case which was probably a robbery busted down to . . . a 487(c), which is a grand theft person, which isn't much better. And then in [1990], then he gets a 245, which was another busted down robbery it looks like. But, then he's got all these other convictions since he got out. So, I don't think he's a deserving candidate." After striking the prior prison term enhancements, the court sentenced appellant to a two-year middle term for the count 1 forgery and doubled that term to four years. It ordered that the sentences on the other counts be stayed upon completion of the count 1 sentence.

Appellant contends that the trial court abused its discretion when it denied his motion to strike his prior felony conviction pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. He argues that the court denied his motion solely on the basis of his criminal record and abused its discretion by failing "to consider all of the relevant factors identified as important by the Supreme Court." We disagree.

Trial courts have limited discretion under section 1385 to strike prior conviction allegations in three strike cases. (Romero, supra, 13 Cal.4th 497, 529-530.) The Three Strikes law establishes a sentencing requirement that must be applied in every qualifying case unless, "'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.'" (In re Large (June 28, 2007, S127754) __ Cal.4th __ [2007 WL 1839158]; People v. Carmony (2004) 33 Cal.4th 367, 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court should also consider the general sentencing objectives under California Rules of Court, rule 410. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) A trial court's decision not to dismiss a prior conviction is reviewed for abuse of discretion and will be upheld unless it produces an arbitrary, capricious or patently absurd result. (Carmony, at p. 378.) In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives. (Id. at pp. 376-377; Alvarez, at pp. 977-978.)

Appellant contends that the trial court abused its discretion in denying the motion to strike his prior conviction because it failed to consider the circumstances surrounding the current offense, his personal traits, and the danger he presented to society. We are required to presume that the trial court considered all of the relevant factors, absent an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) Here, there is no affirmative record that the court failed to consider all of the relevant factors. The court read the probation officer's report, a letter from "Delancey Street," and the Romero motion before ruling on the motion. The probation report and appellant's motion address the factors that appellant now claims the trial court failed to consider. For example, the probation report contains information regarding the current offense, appellant's substance abuse problem, and his prior convictions, which include violent crimes.[2] The Romero motion also describes the facts surrounding the current offense, the relationship between appellant's problems and drugs, and explains that he had applied to the Delancey Street drug rehabilitation program. Appellant has not demonstrated that the trial court failed to consider the relevant factors in ruling on the Romero motion or that its decision was irrational or arbitrary. (See Myers, at pp. 309-310.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Michael L. Schuur, Judge

Superior Court County of Los Angeles

______________________________

Richard L. Fitzer, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.

[2] At age 46, appellant had suffered 18 arrests, six felony convictions (including grand theft person in 1995 and assault in 1990), and three misdemeanor convictions (including a violent misdemeanor in 2001--battery against a former spouse, fiance or cohabitant). ( 243, subd. (e)(1).) For several years between 1989 (the date of his strike conviction) and his current offense, appellant was in prison, on parole or probation, and he violated parole on numerous occasions.