P. v. Andrews

Filed 8/10/07 P. v. Andrews CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Affirmed.

Murray A. Rosenberg, 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, Steven D. Matthews, Supervising Deputy Attorney General, and David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Christopher Andrews (defendant) forced a female school bus driver at gunpoint to drive him in her unoccupied bus from Gardena to Coalinga. The bus driver managed to escape at a rest stop where the police were called. The police arrived, located defendant, and arrested him. The jury convicted defendant of, inter alia, kidnapping and carjacking.

On appeal, defendant contends that the trial court abused its discretion when it refused to strike his prior felony conviction for carjacking. We hold that the trial court did not abuse its discretion and therefore affirm the judgment.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an information charging defendant in Count 1 with kidnapping to commit another crime, in violation of Penal Code section 209, subdivision (b)(1)^[1], a felony; in Count 2 with kidnapping for carjacking, in violation of section 209.5, subdivision (a), a felony; in Count 3 with first degree robbery of a transit operator, in violation of section 211, a felony; and in Count 4 with carjacking, in violation of section 215, subdivision (a), a felony. The information alleged that, as to Counts 1 through 4, defendant had suffered a prior strike conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).

The jury convicted defendant on Count 1 of the lesser included offense of false imprisonment by violence or menace, in violation of section 236; on Count 2 of kidnapping for carjacking, in violation of section 209.5, subdivision (a); on Count 3 of the lesser included offense of petty theft, in violation of section 484, subdivision (a); and on Count 4 of carjacking, in violation of section 215, subdivision (a). The trial court found the prior strike conviction allegation true, and denied defendants Romero^[2]motion to strike the prior felony conviction.

The trial court sentenced defendant to seven years to life on Count 2, doubled it based on the prior strike conviction, plus an additional five years pursuant to section 667, subdivision (a)(1), for a total sentence on Count 2 of 19 years to life. The trial court imposed a concurrent six-month sentence on Count 3.^[3] The trial court awarded defendant 381 days of custody credit, consisting of 331 days of actual custody credit and 50 days of conduct credit.

FACTUAL BACKGROUND

At about 4:20 a.m., defendant entered an unoccupied school bus without the drivers knowledge. When the driver, Marta Quintanilla, boarded the bus and took the drivers seat, defendant sat behind her and ordered her to drive the bus north on the freeway. While she drove, defendant threatened Quintanilla with a weapon to the back of her head. He picked up her purse, searched it, and removed her checkbooks. Defendant told Quintanilla that if anything happened to him, her children would be killed. Defendant directed Quintanilla to head north to Bakersfield, threatening that he would kill her if police tried to stop him.

Quintanilla continued to drive north to Coalinga, where defendant allowed her to stop the bus at a rest area to use the restroom. She took the keys to the bus and her purse and exited the bus. At the rest area, she asked people for help because defendant had hijacked her bus and threatened to kill her.

Police responded to the scene and searched the area for defendant. Two hours later, police arrested defendant as he walked up a freeway off ramp. The police recovered an air pistol and Quintanillas checkbooks from the defendant. Quintanilla identified defendant as the man who had kidnapped her.

DISCUSSION

A. Standard of Review

The trial courts refusal to strike the prior felony conviction is reviewed under the deferential abuse of discretion standard of review. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony); In re Large (2007) 41 Cal.4th 538, 550.) [A] trial courts failure to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 should be reviewed for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 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 legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.] 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. [Citations.] 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. (Carmony, supra, 33 Cal.4th at pp. 376-377.)

B. No Abuse of Discretion

Defendant contends that the trial court abused its discretion by refusing to strike the prior felony conviction for carjacking. According to defendant, the trial court ignored defendants evidence that his behavior on the day of the present offense was the result of drug-related psychological problems.

Pursuant to section 1385, subdivision (a), a judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. In Romero, [supra, 13 Cal.4th 497] we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, in furtherance of justice pursuant to . . . section 1385 [, subdivision] (a). (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385 [, subdivision] (a), or in reviewing such a ruling, 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. (Id. at p. 161.)

In the instant case, the trial court specifically referenced the factors set forth in Williams, supra, 17 Cal.4th at page 161, and applied each factor to the facts in the record before it. The trial court began by noting that the nature of the present felony was particularly serious and involved a nightmare scenario during which Quintanilla was kidnapped, carjacked, and had her life and children threatened. The trial court also considered that defendant forced Quintanilla to drive a long distance from Los Angeles County and did not voluntarily release her; she was required to trick defendant into allowing her to leave the bus. The trial court emphasized that defendant showed no remorse or mercy towards Quintanilla.

As to the prior felony, the trial court found that it involved an identical type of behaviorcarjacking. The trial court also observed that defendant had only been released from custody on that prior felony for eight months when he committed an identical type of crime.

As to defendants background, character, and prospects, the trial court took note of defendants juvenile record and, in particular, his inability to complete probation while a juvenile. Similarly, the trial court noted that when defendant was granted the privilege of parole on the prior carjacking conviction, he was unable to comply with the terms of that parole. As the trial court observed, Not once could [defendant] manage to get through any of those privileges [probation and parole] without messing up. After considering all of the foregoing facts, the trial court concluded that defendant did not fall outside the Three Strikes structure.

The facts before the trial court, including the seriousness of the present offense, the similar nature of the prior offense, defendants juvenile and adult criminal record, and that defendant had only been released from custody on the prior offense less than eight months before he committed the present offense, support a reasonable conclusion that defendant does not fall outside the structure and spirit of the Three Strikes law. (Williams, supra, 17 Cal.4th at p 161.) Although, as defendant now argues on appeal, there was evidence introduced at trial that he suffered from drug-related behavioral problems that may have contributed to his behavior in this instance, his trial counsel made that same argument to the trial court during the hearing on the strike conviction. Therefore, the trial court was informed of defendants mental condition at the time of the present offense, but was not persuaded that it took defendant outside the spirit of the Three Strikes law.

The trial courts determination that defendant did not fall outside the statutory scheme was not so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at p. 377.) The record reflects that the trial court was aware of and applied each of the factors in Williams to the facts before it, and reached a decision that has sufficient evidentiary support. As a result, we cannot substitute our judgment for that of the trial court, and must instead presume that the trial court acted to achieve legitimate sentencing objectives. (Carmony, supra, 33 Cal.4th at pp. 376-377.) Because the trial court did not abuse its discretion, we hold that it properly refused to strike the prior carjacking conviction.

DISPOSITION

The judgment of the trial court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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

^[2]People v. Romero (1996) 13 Cal.4th 497.

^[3] The trial court stayed the sentences as to Counts 1 and 4.