Filed 10/3/17 P. v. Smith CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge.

Jared Grant Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Ronald Dean Smith appeals his sentence following his entry of a guilty plea to first degree burglary. Defendant contends the trial court abused its discretion at sentencing by denying his motion to strike two of his three prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree and affirm the judgment.

FACTS[1]

“According to [a] Modesto Police Department report…, on November 22, 2015, at approximately [10:28 a.m.], Officer J. Lee was hailed by citizens who wished to discuss problems with the homeless. While the officer was speaking with them, he overheard a loud fight behind [the subject residence]. The officer contacted dispatch and confirmed they were speaking with the homeowner who was frantically requesting help with a burglar.

“The officer arrived at the residence and observed Victim #1 ... running after the defendant. Officer Lee caught up to the defendant and arrested him on the victim’s claim that the defendant was involved in a burglary. Victim #1 advised the officer the defendant wa[]ved a knife at him and he had inadvertently thrown the defendant to the ground causing injury. The officer recovered the weapon, which was described as a bottle opening tool containing a corkscrew and knife. The officer searched the defendant and located several syringes, drug paraphernalia, and identification belonging to another individual not involved in the incident.

“Officer Lee spoke with the defendant regarding the offense. The defendant stated he had been sleeping in a home across the street and wanted to know what another person was doing on a porch. The defendant explained he squatted down to look through Victim #1’s fence and observed Victim [#1] mowing the lawn and a woman, later identified as Victim #2, raking the leaves. The defendant said this was a technique he used in the past to commit burglaries and enter homes. The defendant admitted to stealing a wallet from a purse he found in the corner bedroom.

“The defendant was transported to Doctors Medical Center for injuries sustained during the offense and subsequently booked into the Stanislaus County Jail.

“According to Officer Lee’s supplemental report, Victim #1 stated his girlfriend … listed as Victim [#2], saw the defendant exit the side door of Victim #1’s residence. Victim #1 stated the side door was left unlocked to facilitate the exit and entry of his home without the use of a key. As Victim #1 made contact with the defendant, Victim #2 went inside the home and discovered her brown wallet was taken from her purse in the bedroom where she left her belongings. Victim #2 described the wallet to Officer Lee … and stated the wallet contained her California Driver License, credit cards and cash. Officer Lee later located the wallet in the front of the defendant’s pants and returned it to Victim #2.”

PROCEDURAL BACKGROUND

On January 25, 2016, defendant pled guilty to first degree burglary (Pen. Code,[2] § 459) and admitted he suffered three prior convictions for first degree burglary, which qualified as serious felony and strike convictions (§ 667, subds. (a) & (d)).

On July 28, 2016, defense counsel filed a Romero motion to strike two of defendant’s prior strike convictions. The motion characterized defendant and the circumstances of the current offense as follows:

“[Defendant] began his criminal career after he returned home from the Vietnam War addicted to heroin. In 1994, [defendant] received a twenty four year prison sentence. When he got out of prison, [defendant] was homeless and relapsed into drug use. Other homeless people stole what meager property he accumulated. [¶] On November 22, 2015, [defendant] suffered enough. He decided to enter into an occupied dwelling and decided to ‘get caught’ so he would no longer have to live on the streets.”

On August 26, 2016, the trial court heard defendant’s Romero motion. At the beginning of the hearing, the court advised defense counsel that “[o]ne of the problems I have with the motion … is that you assert a number of factual things in here for which there is no evidentiary support.” In response, defense counsel acknowledged that defendant had not been interviewed by the probation department, apparently on the advice of his former counsel. However, defense counsel asserted, “I think that is the kind of information that would have been found in the sentencing report, and I think the Court can put whatever weight it wishes on factual assertions.”

Defense counsel then urged the trial court to sentence defendant as a “one striker,” observing defendant would still be facing “a very stiff sentence” and “unfortunately, he has some health issues, [but] should he make it to an out date, we’re talking about an individual who would be in his [eighties].” Counsel concluded that defendant was unlikely to constitute a threat to society in his eighties and fell outside the spirit of the three strikes law.

In opposition, the prosecutor stated he thought it would be an abuse of the trial court’s discretion to strike any of defendant’s prior strike convictions. The prosecutor argued: “We could have said that we didn’t think [defendant] would be still committing crimes at his current age, and we would have been wrong. [Defendant] has been just a one-man burglary spree for a very long time.”

After listening to these arguments, the trial court denied defendant’s Romero motion. In ruling, the court stated:

“The Court finds that [defendant] does not fall outside the spirit of the law. And also, that there really is—really no factual basis for the request. Even if I were to assume what [defense counsel] had put in his papers is true, I don’t think that would in any way influence the Court in considering the motion, as I think he falls directly within the spirit of the Three Strikes Law.”

The trial court then proceeded to sentence defendant to a total prison term of 40 years to life as follows: a 25-year-to-life term for his burglary conviction under the three strikes law, plus three 5-year terms for his prior serious felony convictions.

DISCUSSION

Defendant contends the trial court abused its discretion in denying his motion to strike two of his prior strike convictions. We disagree.

Section 1385, subdivision (a) gives the trial court the discretion to strike an allegation that a defendant has previously been convicted of a felony if the dismissal is in furtherance of justice. (Romero, supra, 13 Cal.4th at p. 508.) “[T]he order striking such allegations ... embodies the court’s determination that, ‘ “in the interest of justice” [the] defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of [the alleged] fact.’ ” (Ibid.)

In deciding whether to strike a prior conviction, “the court in question must consider whether, in light of the nature and circumstances of [the defendant’s] 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.)

Defendant, who was nearly 62 years old at the time he committed the current offense, has an extensive criminal history, beginning in 1972, when he was found to have committed second degree burglary and sentenced to the California Youth Authority. Defendant’s subsequent felonies include multiple convictions for burglary in 1974, 1979, 1982, 1985, 1990, 1995, a conviction of forgery in 1974, and a conviction of possession of a controlled substance in 2008. The same year as the current offense, defendant suffered four misdemeanor convictions for theft- and drug-related offenses. He was on parole when he committed the current offense, and his prior performance while on parole and probation has been poor. Defendant’s long criminal history reflects a clear pattern of recidivism.

Defendant fails in his attempt to minimize the seriousness of his current offense and the societal risk he poses as a recidivist criminal. As he did in his written Romero motion below, defendant tries to characterize himself as a drug-dependent war veteran just trying to get back to prison. However, when the trial court heard his motion, the only information it had before it regarding the relevant factors was contained in the probation report. As seen above, defendant declined to provide a statement to the probation department, and the probation report itself lists no mitigating factors for the current offense. Thus, the probation report does not contain any specific information regarding defendant’s alleged return from Vietnam as a heroin addict or his more recent homelessness and dependence on controlled substances. Therefore, it was reasonable for the court to conclude that such assertions failed to provide a factual basis for finding defendant fell outside the spirit of the three strikes law.

Moreover, the probation report provided ample support for the trial court’s conclusion that defendant falls directly within the spirit of the three strikes law. In asserting he received a life sentence simply for “taking a wallet from a residence” defendant attempts to downplay the seriousness of his offense. However, the circumstances of his offense are consistent with case law illustrating why the law regards burglary as a serious offense:

“ ‘ “Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.” [The burglary statute], in short, is aimed at the danger caused by the unauthorized entry itself.’ ” (People v. Thorn (2009) 176 Cal.App.4th 255, 264.)

The above concerns and dangers inherent in an unauthorized entry into a residence when residents are on the premises were all exemplified by the current case. After looking through the fence and observing the apparent residents were outside doing yardwork, defendant entered the residence, presumably assuming he would not be noticed. However, the homeowner confronted defendant when he was trying to escape, which led to a physical struggle during which defendant waved a weapon at and was himself injured by the homeowner. When defendant attempted to run away, a police officer, who happened to be in the area and overheard the confrontation, intercepted and detained him. As the probation report reasonably concluded, defendant’s behavior during the offense combined with his “lengthy criminal history” reflect that defendant has an inability to control his impulses, a willingness to commit crimes of opportunity and, when not in custody, “has consistently put the community at risk with his ongoing criminal activity.”

Defendant has failed to establish the trial court’s denial of his Romero motion was outside the bounds of reason under the facts and the law and, as a result, we find no abuse of discretion.

DISPOSITION

The judgment is affirmed.