Filed 6/20/17 P. v. Wesley CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES LEWIS WESLEY,

Defendant and Appellant.
H043649
(Santa Cruz County
Super. Ct. No. F28056)

STATEMENT OF THE CASE
An information charged defendant James Lewis Wesley with second degree burglary (Pen. Code, § 459) and felony vandalism (§ 594, subd. (b)(1)). The information alleged a prior strike conviction (§ 667, subds. (b)-(i)). Defendant pleaded no contest to both counts and admitted the prior strike allegation. Before sentencing, defendant filed a Romero motion to dismiss the prior strike conviction. At the sentencing hearing, the trial court denied the Romero motion and sentenced defendant to 32 months in prison.
Defendant now appeals from the judgment of conviction. He contends that this court must reverse the judgment and remand for resentencing because the trial court erred in denying his Romero motion. As set forth below, we affirm the judgment of conviction.
STATEMENT OF THE FACTS
At approximately 2:40 a.m. on December 30, 2014, defendant shattered the front window of a Santa Cruz clothing store. Defendant entered the store and stole $152 from the cash register. Defendant caused over $2,000 worth of damage to the window.
DISCUSSION
Defendant contends that the trial court abused its discretion in denying his Romero motion because it relied “solely” on his recidivist status in making its decision and failed to consider his mental illness, his alcohol abuse, and the nature of his criminal history. As explained below, defendant has failed to show an abuse of discretion.
Background
Before sentencing, defendant filed a Romero motion to dismiss his prior strike conviction. The People filed an opposition to the motion.
The probation report set forth defendant’s criminal history. It showed that defendant’s prior strike conviction was for an armed robbery committed in 1986. It showed that defendant accumulated nine felony convictions and 10 misdemeanor convictions after the armed robbery. The probation report also stated that defendant “struggles with alcoholism,” he “has been in various residential programs for alcohol dependency treatment,” he “has been diagnosed with schizophrenia,” and he “has been in and out of mental hospitals since 1997.” In the recommendation section of the probation report, the probation officer recommended that defendant be sentenced to prison because he “has been offered many chances of rehabilitation yet has failed to reform” and “continues to commit new crimes.” The probation officer “respectfully defer[red] to the court to make a determination on” the Romero motion.
At the sentencing hearing, defense counsel presented the following arguments in support of dismissing defendant’s prior strike conviction: the prior strike conviction was “extremely old,” defendant was only 18 years old when he committed that offense, defendant’s subsequent crimes were “[m]ostly property crime and mostly the product of mental illness combined with alcoholism,” defendant participated in “various programs” to “improve his situation,” defendant “started his own eBay business,” the current offense did not involve violence or weapons, and defendant took responsibility for the current offense “early” in the proceedings. The prosecutor presented the following arguments in favor of not dismissing the prior strike conviction: defendant was a “recidivist offender of the highest order,” there was never an “extensive period of time” in which defendant was not “out committing new offenses,” defendant continued to commit crimes even though he had “received multiple programs,” and defendant’s prior strike offense was “very serious” and “involved a gun.” Defendant personally informed the trial court that he was evicted from his housing for having an emotional support animal, that led to him “stressing out and relapsing,” he did not know “what the heck” he was doing when he was relapsing, and he currently had a “solid grasp on sobriety.”
The trial court denied defendant’s Romero motion. In denying the motion, the trial court stated that it had “extensively” reviewed the probation report. The trial court then explained: “I calculated that there was, since 1986—so that’s 29 years ago—one, maybe two periods of up to four years where you weren’t caught committing any criminal act . . . . But other than that, there was . . . a crime committed by you every one, two, or three years for that entire 29 years. [¶] Some of them . . . were felonies, there were misdemeanors, there was jail time, there was prison time. [¶] And then, most recently, I saw you on September 3rd of last year and . . . gave you probation and sentenced you to a year in custody and then . . . by December 30th you were getting this new case. I cannot, in good faith, make a finding that you are not within the spirit of . . . the [“]Three Strikes[”] law. [¶] The . . . point of the law was that people who keep repeating need to have increased sentences and be removed from the general population of our community longer.”
The trial court then sentenced defendant to 32 months in prison. In imposing the low term sentence, the trial court stated: “[Y]our conduct . . . is prompted, if you will, by mental health and substance abuse complications in your life. [¶] Also, you made an early admission, relatively. [¶] And, fortunately, the amounts in question are not huge sums of money involved.”
Legal Principles and the Standard of Review
“As the Supreme Court explained in Romero, section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the Three Strikes law, in the interests of justice.” (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213, citing Romero, supra, 13 Cal.4th at pp. 529-530.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation . . . 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.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
The purpose of the Three Strikes law is “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses.” (§ 667, subd. (b).) The Three Strikes law “establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,” unless the trial court determines the defendant falls outside the scheme’s spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338 (Strong).) “[E]xtraordinary must the circumstance be 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.” (Id. at p. 338.) Thus, the Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm.” (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
“The trial court is not required to state reasons for declining to exercise its discretion under section 1385.” (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) The trial court “is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).)
A trial court’s decision not to strike a prior conviction allegation is reviewed under the abuse of discretion standard. (Carmony, supra, 33 Cal.4th at p. 371.) “Under that standard an appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It 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 court’s ruling, even if we might have ruled differently in the first instance.” (Myers, supra, 69 Cal.App.4th at pp. 309-310.)
The Trial Court Did Not Abuse its Discretion
Here, contrary to defendant’s assertion, his recidivist status was not the only factor the trial court considered in ruling upon his Romero motion. When denying the Romero motion, the trial court explained that it had “extensively” reviewed the probation report. The probation report described defendant’s mental health issues, his history of alcohol abuse, and the nature of his criminal history—the very circumstances that defendant contends the trial court failed to consider. Given the trial court’s statement that it had considered the probation report, we cannot conclude that the trial court failed to consider defendant’s mental illness, his alcoholism, and the nature of his criminal history. Indeed, the record affirmatively demonstrates that the trial court considered defendant’s mental health issues and alcoholism; in imposing the sentence, the trial court specifically mentioned defendant’s “mental health and substance abuse complications.”
Defendant contends that that the trial court abused its discretion simply because the comments it made when denying the Romero motion were primarily focused on defendant’s recidivist status. This argument is unavailing. The fact that the trial court “focused its explanatory comments” on a single factor “does not mean that it considered only that factor.” (Myers, supra, 69 Cal.App.4th at p. 310.)
In sum, defendant cannot show that the trial court abused its discretion in denying his Romero motion. Given the trial court’s statement that it had extensively reviewed the probation report, we must conclude that it engaged in the requisite consideration of defendant’s “background, character, and prospects.” (Williams, supra, 17 Cal.4th at p. 161.) Moreover, although the record shows that defendant struggled with mental health issues and alcoholism, those circumstances did not require the trial court to grant defendant’s Romero motion. (See People v. Carrasco (2008) 163 Cal.App.4th 978, 992-994 [no error in denying Romero motion where the defendant had significant mental health issues and suffered from the effects of long-term drug use].) Rather, the probation report shows that defendant repeatedly committed crimes over a 29-year period, despite receiving treatment for his mental health issues and alcoholism. On this record, the trial court could rationally conclude that defendant was “a career criminal” with a “long and continuous criminal record” who should not “be deemed to fall outside the spirt of” the Three Strikes law. (Strong, supra, 87 Cal.App.4th at p. 338.) We cannot find an abuse of discretion in the denial of defendant’s Romero motion.
DISPOSITION
The judgment is affirmed.


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RUSHING, P.J.






WE CONCUR:






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PREMO, J.






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ELIA, J.