Filed 10/17/17 P. v. Langley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 Tulare County. Kathryn T. Montejano, Judge.

Rachel Varnell, 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 Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Randy Wesley Langley appeals from the judgment entered following his conviction of battery against a spouse and disobeying a prior domestic relations court order. His sole contention is that the trial court abused its discretion by declining to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[1]

On March 10, 2016, defendant punched his wife in the mouth, violating a criminal protective order she had against him.

On April 6, 2016, defendant was charged by information with corporal injury to a spouse (Pen. Code,[2] § 273.5, subd. (a); count 1) and disobeying a prior domestic relations court order (§ 273.6, subd. (d); count 2). With respect to count 2, the information alleged that defendant had suffered a previous conviction for violating section 273.6, within the past seven years (i.e., on February 24, 2014). The information further alleged defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)(1)), based on a 1998 conviction of assault with a firearm (§ 245, subd. (a)(2)), and that he had served three prior prison terms (§ 667.5, subd. (b)).

On June 1, 2016, a jury found defendant guilty of the lesser crime of battery against a spouse in count 1, and guilty of disobeying a prior domestic relations court order as charged in count 2, returning a true finding on the allegation he previously committed a similar offense within the past seven years. In a bifurcated proceeding, the trial court found the prior strike conviction and prior prison term allegations to be true.

On June 16, 2016, prior to the sentencing hearing, the People filed a statement in aggravation, requesting, among other things, that the trial court impose an upper term sentence for count 2, and deny any request by defense counsel to strike defendant’s prior strike conviction pursuant to Romero, supra, 13 Cal.4th 497.

On June 22, 2016, defense counsel filed a sentencing memorandum opposing the People’s request to impose the upper term but not addressing the People’s arguments concerning the propriety of striking defendant’s prior strike conviction or expressly requesting the court exercise its discretion to do so.

On June 28, 2016, neither the prosecutor nor defense counsel specifically addressed the issue of whether the trial court should strike defendant’s prior strike conviction in their arguments concerning sentencing. However, after listening to their arguments, the trial court brought up the issue on its own and made statements indicating that it recognized but was declining to exercise its discretion to strike the prior strike conviction.

The trial court then sentenced defendant to prison for six years by imposing the upper term of three years for count 2, and doubling it to six years pursuant to section 1170.12, subdivision (c)(1), and imposing no time for defendant’s current spousal battery conviction or his three prison priors.

DISCUSSION

Defendant contends the trial court abused its discretion by declining to strike his 1998 conviction of assault with a firearm pursuant to Romero, supra, 13 Cal.4th 497, in light of “the remoteness of the prior strike” and his “relatively minor criminal history for the majority of the eighteen years since the commission of the prior strike[.]” In support of his contention, defendant notes his current offenses of disobeying a domestic relations court order and spousal battery do not qualify as violent or serious felonies under sections 667.5, subdivision (c) and 1192.7, subdivision (c). Defendant further notes that “between a felony conviction in 2002 and a felony conviction in 2012,” he has “suffered only misdemeanor convictions and violations of parole.”

A trial court has discretion to strike a prior felony conviction “in furtherance of justice.” (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) It “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.” (Williams, at p. 161.) We review the trial court’s decision whether or not to strike a prior felony conviction pursuant to a deferential abuse of discretion standard. (Id. at p. 162.) We do not substitute our decision for that of the trial court. “It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

Defendant has not met his burden of establishing that the trial court’s decision is unreasonable. (People v. Carmony (2004) 33 Cal.4th 367, 376.) In declining to strike defendant’s 1998 conviction for assault with a firearm, the trial court expressly considered the circumstance that the conviction was “remote in time.” However, as the court went on to observe, “defendant has not remained crime free and, in fact, has committed numerous domestic violence acts between this time and that time for which he has been imprisoned.” The probation report supports the court’s observations and reflects that defendant suffered a felony conviction for committing corporal injury on a spouse in 2012, for which he received a two-year prison term, and suffered multiple misdemeanor convictions, involving acts of domestic violence against his wife, in 2011, 2013, 2014, and 2016.

The probation report further reflects that after he suffered his prior strike conviction in 1998, defendant suffered, in 2002, felony convictions for first degree burglary (§ 459), receiving or concealing stolen property (§ 496, subd. (a)), and unlawful driving or taking of a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)). The probation report also supports the trial court’s observations at sentencing that defendant “had nine parole violations” and was on probation at the time of his current offenses. The record thus provides ample support for the court’s implicit conclusion that, in view of defendant’s background, character, and prospects, he does not fall outside the spirit of the “Three Strikes” law. (Williams, supra, 17 Cal.4th at p. 161.)

Defendant misplaces his reliance on People v. Bishop (1997) 56 Cal.App.4th 1245, 1248, 1251, in which the appellate court upheld the trial court’s decision to strike the defendant’s prior convictions in light of the age of the prior convictions and the nonviolent nature of the defendant’s current offense; i.e., the theft of six videocassettes. In addition to being factually distinguishable from the current case, the Bishop court did not hold denial of the Romero motion in that case would have been an abuse of discretion. A case is not authority for propositions that are not discussed or considered. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65-66; People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4.)

DISPOSITION

The judgment is affirmed.