Filed 5/15/17 P. v. Saunders CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBY SAUNDERS,

Defendant and Appellant.

F072033

(Super. Ct. No. MF011571A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted defendant Bobby Saunders of possessing a weapon while in a penal institution. On appeal, he contends the trial court erred at sentencing by not exercising its discretion to designate the term it imposed for the current in-prison offense as the subordinate term and designating as the principal term the term it imposed for defendant’s previous conviction of another in-prison offense, and by not dismissing the prior strike conviction and prior prison term allegations found true by the jury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2013, a search of defendant’s prison cell uncovered a variety of prohibited sharp objects. A jury later convicted him of possessing a weapon (i.e., a sharp instrument) while in a penal institution (Pen. Code, § 4502, subd. (a)), and further found he had suffered five prior convictions that qualified as strikes (§§ 667, subds. (c)–(j); 1170.12, subds. (a)–(e)), and two prior convictions that resulted in prison terms (§ 667.5, subd. (b)).
At the sentencing hearing on July 14, 2015, the trial court denied defendant’s Romero motion to dismiss the prior strike conviction and prior prison term allegations. In ruling on the motion and selecting the aggravated term for the current offense, the court explained:
“[Defendant] does have a significant number of prior convictions. I would also note the nature of this offense, not only in the place where it occurred, that being the prison, but the fact that, of course, multiple weapons or possible weapons were located.[ ] Just those three concerns alone, this would—the Court would find that the interests of justice would not be served by striking one or any of the strikes that were found true.
“So the Court finds that the imposition of the strike sentencing scheme is certainly within the interests of justice in this case.
“So then, proceeding to the sentencing, the Court does find in aggravation that [defendant] has had numerous prior convictions as an adult. He has engaged in violent conduct, which indicates a serious danger to society, as evidenced by prior convictions for the violations of … [section] 245[, subdivision] (a)(2) and [section] 245[, subdivision] (a)(1).
“It appears he has … a prior prison term that was not used to enhance the case out of San Diego County, and his prior performances on probation and parole were unsatisfactory in that he continued to re-offend.
“There were additional aggravating circumstances presented by the People, which, the following I would find is true: The manner in which the crime was carried out did indicate at least a degree of planning and sophistication. There was a large quantity of contraband, I recognized that already, and the other aggravating circumstances cited by the Prosecution, I have already mentioned that in the motion to strike the prior strikes, and that being just, as a summary, violent conduct, numerous prior convictions, prior prison terms and unsatisfactory probation and parole performances.
“Under these circumstances, the aggravating circumstances, and not finding any mitigating circumstances at this time, the upper-term sentence is warranted.”
The trial court then sentenced defendant to a total term of 10 years for his conviction of possession of a weapon while in a penal institution as follows: the upper term of four years, doubled to eight years under the “Three Strikes” law, plus two years for the prior prison term findings. Pursuant to section 1170.1 subdivisions (a) and (c), the court designated the term imposed for defendant’s current in-prison offense as the principal term and reimposed, as the subordinate term of one-third the midterm (i.e., two years), the sentence for his 2004 conviction of his first in-prison offense of assault with a deadly weapon (§ 245, subd. (a)(1)) in Monterey County Superior Court case No. SS041051A. The court ordered the resulting aggregate 12-year term for the two in-prison offenses to be served “fully consecutive” to the 50 years-to-life-plus-20-years term defendant was serving for his 2001 convictions of first degree burglary (§ 459) and assault with a firearm (§ 245, subd. (a)(2)) in San Joaquin Superior Court case No. SF0179985A.
DISCUSSION
On appeal, defendant contends the trial court abused its discretion by declining to designate the term imposed for the current offense as the subordinate term and by denying his Romero motion to dismiss his prior strike convictions and prison terms, resulting in what he claims would have been a more appropriate “additional one-year sentence—one-third the middle term” for his current conviction. Defendant’s arguments on appeal primarily consist of policy claims outside this court’s purview. He also claims the following factors militated in favor of dismissing his prior strike convictions: (1) the nature and circumstances of the present offense in that his current offense did not involve “actual violent conduct,” “the type of instrument he possessed, itself, would be innocent anywhere but in a penal institution and in a particular housing unit,” and “the current crime is not a serious or violent felony”; (2) the nature and circumstances of defendant’s prior offenses in that his “two prison priors are very old,” “his newest strike prior is over a decade old,” and only one of his prior strike convictions was “violent” and thus indicative of “a single period of aberrant behavior”; and (3) defendant’s background, character, and prospects in that defendant is unlikely “to ever be released from prison” but if “some future change in the law or some future finding of parole eligibility changes that fact, the parole board would be in the far better position to determine [defendant’s] dangerousness at that time.” For reasons discussed below, we conclude the trial court properly exercised its authority in sentencing defendant.
A. The Trial Court Properly Sentenced Defendant under Section 1170.1
Section 1170.1, subdivision (c), calls for “computation of a single term of imprisonment for all convictions of felonies committed in prison and sentenced consecutively, whether multiple convictions occur in the same court proceeding or in different proceedings.” (People v. McCart (1982) 32 Cal.3d 338, 343 (McCart).) This new aggregate term is calculated for all consecutively sentenced in-prison offenses, even if committed years apart. (People v. Venegas (1994) 25 Cal.App.4th 1731, 1743–1744 (Venegas).) The term consists of the greatest term of imprisonment for any one of the in-prison offenses (the principal term) plus one-third middle terms for each of the additional in-prison offenses (the subordinate terms). (Id. at p. 1744; § 1170.1, subd. (a).) The aggregate term for in-prison offenses runs fully consecutive to the prisoner’s existing term, commencing “at the end of the longest of the prisoner’s previously imposed terms.” (McCart, at p. 343.)
The trial court followed the prescribed procedure in this case. The record establishes defendant received a low-term sentence of two years, doubled to four years under the Three Strikes law, for his 2004 in-prison offense of assault with a deadly weapon. The court, therefore, correctly designated the greater term of 10 years imposed for the current in-prison offense as the principal term, and sentenced him to an aggregate term of 12 years for his two in-prison offenses. Defendant cites and we are aware of no authority supporting his assertion that “[t]he court should have treated the present crime as the subordinate term, because of the relative severity of the two in-prison offenses—assault with a deadly weapon in the prior Monterey County case versus possession of a sharp instrument here.” “The intent of section 1170.1[, subdivision] (c) is manifestly to punish in-prison offenses ‘more severely than crimes committed “on the outside.” ’ ” (Venegas, supra, 25 Cal.App.4th at pp. 1743–1744; McCart, supra, 32 Cal.3d 338 at p. 343.)
B. The Trial Court Properly Denied Defendant’s Romero Motion
Trial courts have limited discretion under section 1385 to dismiss prior convictions in Three Strikes law cases. (Romero, supra, 13 Cal.4th at p. 530; see People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) “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.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 376–377 (Carmony).) “[W]hen a defendant’s criminal conduct has been proven to be immune from ordinary modes of punishment, one of the duties of the judiciary is to protect the public by utilizing recidivist sentencing statutes to incarcerate such persons.” (People v. Castello (1998) 65 Cal.App.4th 1242, 1250–1251.) Thus, when sentencing pursuant to the Three Strikes law, objectives include protection of public safety and punishment of recidivism. (Castello, at p. 1251.) “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.” (Carmony, at p. 377.)
In deciding whether to dismiss or vacate a prior strike allegation or finding, 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 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.” (Williams, supra, 17 Cal.4th at p. 161.) By establishing a sentencing norm, circumscribing the trial court’s power to depart from that norm, and requiring the court explicitly to justify its reasons for doing so, “the [Three Strikes] law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] 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.” (Carmony, supra, 33 Cal.4th at p. 378.)
This is not the “extraordinary case [in which] the relevant factors ... manifestly support the striking of a prior conviction and no reasonable minds could differ,” such that the failure to strike constituted an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.) Defendant was 49 years old at the time of sentencing. His record of criminal offenses dated back to 1984, and consisted of six felony convictions resulting in prison terms, seven misdemeanor convictions, and numerous violations of probation and parole. Moreover, two of defendant’s most recent convictions—namely, his 2001 conviction of assault with a firearm (§ 245, subd. (a)(2)), and his 2004 in-prison offense of assault with a deadly weapon (§ 245, subd. (a)(1))—involved violent conduct. Under the circumstances, he is precisely “ ‘the kind of revolving-door career criminal for whom the Three Strikes law was devised.’ ” (People v. Strong (2001) 87 Cal.App.4th 328, 340, fn. omitted (Strong).)
The trial court did not abuse its discretion in reaching this conclusion. (See, e.g., In re Large (2007) 41 Cal.4th 538, 552; People v. Pearson (2008) 165 Cal.App.4th 740, 749; Strong, supra, 87 Cal.App.4th at pp. 338–340 & cases cited.) That striking one or more prior convictions may conceivably have constituted a proper exercise of discretion (see, e.g., People v. Garcia (1999) 20 Cal.4th 490, 502–503; People v. Bishop (1997) 56 Cal.App.4th 1245, 1250–1251) does not mean any other course of action constituted an abuse of discretion.
DISPOSITION
The judgment is affirmed.