Filed 9/13/17 P. v. Wright CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi, Judge. Affirmed as modified.

Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Annie Featherman Fraser and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On February 28, 2014, a first amended information charged defendant and appellant Lionel Wright with robbery under Penal Code[1] section 211 (count 1), and attempted robbery under sections 664 and 211 (count 2). The information also alleged that defendant had two prison priors, and two prior strikes for two convictions for first degree burglary under section 459.

On November 25, 2014, a jury found defendant guilty of robbery (count 1); defendant was found not guilty of count 2, attempted robbery. The trial court granted the People’s motion to strike the prison-prior allegations and they proceeded only on the strike allegations. The trial court found true defendant’s two prior strike allegations under sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). On December 30, 2015, the trial court denied defendant’s motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced him to 25 years to life. Defendant filed a timely notice of appeal.

B. FACTUAL HISTORY

A surveillance video showed that defendant first made contact with James Williams (the victim) shortly after the victim won a $3,000 jackpot at the San Manuel Casino. Defendant approached and spoke with the victim while the victim was waiting to be paid for the jackpot. They had a couple of conversations over the course of the night including after the victim won another jackpot of $4,000. At approximately 7:00 a.m., the victim left the casino.

The victim exited the covered parking structure and pulled over to an uncovered parking area in order to get cell service to search for a breakfast place. Meanwhile, defendant changed into a hoodie sweatshirt and drove his car around waiting for the victim to leave. Casino surveillance cameras captured defendant eventually pulling over to the side of the road and putting on his flashing lights. After the victim unknowingly passed defendant and had come to a stop for a signal, he observed defendant’s car in his rear-view mirror. The victim saw the car stop and then accelerate, hitting his car. It was not a hard hit, but it was enough to get the victim to pull over. The victim pulled into the parking lot of a nearby strip mall and defendant followed. The victim did not recognize defendant as the person with whom he had been speaking at the casino.

When the victim asked to exchange insurance information, defendant lied and told the victim that defendant did not want to involve the insurance company because the car belonged to his mother and she did not know that he was using it. Defendant appeared agitated and claimed to be only 17 years old. The victim offered to exchange personal information if defendant agreed to pay for repairs after the victim obtained some quotes. Defendant agreed. The two spoke in the victim’s car; defendant sat in the passenger seat.

The victim and defendant exchanged information and the victim took a picture of defendant’s car. Defendant became increasingly agitated and kept expressing his concern that the victim would turn over his information to the insurance company. Defendant presumably called his mother, then told the victim they needed to wait for her to arrive. The victim started to get suspicious because 20 minutes had passed since the accident, and defendant was “talking in circles.” The victim noticed that what he had thought was defendant being nervous and fidgety was actually defendant searching through the victim’s car. Defendant opened and looked in the glove compartment, and went through a basket of items the victim had on the passenger floor. The $7,000 was in the center console. The victim didn’t want defendant in his car any longer, so told defendant he was going to smoke and asked defendant to join him. The victim got out of the car and closed his door; when defendant exited the car, the victim shut the passenger-side door and locked the car. Defendant continued to ask the victim to wait, supposedly until his mother arrived.

The victim was tired of waiting; he called his insurance company to find out if he needed to wait for defendant’s vehicle’s owner. The insurance representative told him to exchange vehicle identification numbers; after they had done so, the victim told defendant he was going to leave. Defendant became aggressive, and when the victim opened his car door to leave, defendant placed his body between the door and car and prevented the victim from closing the car door. Defendant then punched the victim in the face as he was trying to call the police. As defendant continued to punch the victim, defendant demanded the victim’s phone, the iPad containing the picture of defendant’s vehicle, and the notepad that the victim had written defendant’s identifying information on. The victim slid back into the car and tried to kick defendant away; defendant wrenched the set of keys from the victim’s hand at which point the victim shut his door. A fob on the keyring allowed defendant to lower the top of William’s convertible; making the victim feel defenseless. The victim yelled to a woman, who had just arrived and was opening her nail salon, to call 911. At that point, defendant fled with the victim’s keys; the victim ran to and called 911 from an eating establishment.

DISCUSSION

A. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DECLINING TO STRIKE ONE STRIKE PRIOR

Defendant contends that the trial court abused its discretion in declining to strike one of his two strike priors. We disagree.

1. FACTUAL BACKGROUND

In this case, before sentencing, defendant filed a motion to dismiss one of his two strikes under section 1385. Defense counsel pointed to defendant’s troubled childhood; in 1998, his mother was murdered and defendant had to testify. Defendant’s father was likewise deceased. Defense counsel also urged the court to consider defendant’s youth when committing his first two strike priors. Defendant was 18 and 21 years old when he committed residential burglary, and there was no violence used by defendant. Finally, the victim wrote a letter stating that he did not believe a 25-years-to-life sentence was necessary. The prosecutor responded by pointing out that defendant committed three strike offenses within a 10-year period—the two residential burglaries and the instant robbery—and that such conduct evidenced defendant’s propensity to commit serious and violent offenses.

The court denied defendant’s motion after considering the parties’ arguments, defendant’s record, the victim’s letter, relevant authority and the interest of society. The court based its decision on “the nature and circumstances of the defendant’s present felony and prior strike convictions, including the proximity in time to each other, and particulars of the background, character, and prospects that the defendant is not deemed outside the spirit of the three-strikes law in whole or in part.”

2. LEGAL BACKGROUND

A trial court has discretion to dismiss a strike prior under section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The focus of the analysis must be on “‘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. Carmony (2004) 33 Cal.4th 367, 377.)

“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “This standard is deferential. [Citations.] t asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” ([i]People v. Williams (1998) 17 Cal.4th 148, 162.) A trial court’s decision not to strike a prior will be upheld unless it was irrational or arbitrary. (Carmony, at pp. 374, 377.) It is the defendant’s burden to show this irrationality or arbitrariness. (Id. at p. 376.) “Because the circumstances must be ‘extraordinary . . . 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’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, at p. 378.)

3. DISCUSSION

Defendant has a significant and serious criminal record. His adult criminal career began when he was convicted of possession of cocaine base for sale. Just 14 months later, defendant committed his first strike, a residential burglary, for which he received a two-year prison sentence. Less than two years later, defendant committed his second residential burglary and his second strike. Defendant received a seven-year sentence for his second strike, but committed the current offense only five months after being paroled. Defendant was 27 years old. Therefore, his entire adult life defendant was essentially either committing new offenses or he was incarcerated.

Defendant’s most recent offense also showed increasing seriousness, boldness and sophistication. Defendant essentially stalked a casino winner for hours, followed the victim in his car, caused a minor traffic accident so that the victim would pull over, and then tried in various ways to obtain the victim’s $7,000 winnings before deciding to use violence. Moreover, defendant physically struck the victim in the face numerous times when the victim tried to get away. In arguing that his current offense was not that serious, defendant attempts to minimize his conduct because his attempts were unsuccessful and victim’s injuries were minor. However, the fact that defendant was not successful does not militate against the danger defendant posed. Indeed, since defendant’s mother was deceased at the time of the offense and defendant was trying to stall the victim until “his mother” arrived, it is reasonable to assume that defendant was waiting for backup to complete the robbery. Moreover, the victim’s successful resistance before defendant’s backup arrived does not support a finding that defendant’s conduct was not violent and harmful to the victim.

Despite defendant’s past incarcerations, completing one year of college, starting a new job earing $200 a day, and having a supportive sister, defendant chose to commit more crimes. As recognized by the trial court, defendant “does not fall outside the spirit of the three-strikes law in whole or in part.” We, therefore, discern no abuse of discretion by the trial court in declining to strike one of defendant’s prior strike convictions.

B. THE PRISON-PRIOR ENHANCEMENTS IN THE ABSTRACT OF JUDGMENT SHOULD BE STRICKEN

Defendant contends that the abstract of judgment erroneously reflects two stayed prison-prior enhancements—one for count 1 and the other for a nonexistent count 2. The People agree with defendant because the prosecutor had dismissed the prison prior allegations and the trial court did not impose any sentence for the dismissed allegations. The abstract of judgment, therefore, shall be modified accordingly. (See People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14 [“When an abstract of judgment does not accurately reflect the trial judge’s oral pronouncement of sentence, [the appellate] court has the inherent power to correct such an error, either on [its] own [motion] or at the parties’ behest”].)

DISPOSITION

The abstract of judgment filed January 7, 2016, is modified by striking the two stayed prison-prior enhancements. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.