Filed 3/28/18 P. v. Hernandez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PEDRO TORRES HERNANDEZ,

Defendant and Appellant.

F072010

(Super. Ct. No. BF154420A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Defendant Pedro Torres Hernandez was charged with assaulting J. Diederich, a peace officer, with a deadly weapon or instrument other than a firearm (Pen. Code, § 245, subd. (c) [count 1]); assaulting A. Pflugh, a peace officer, with a deadly weapon or instrument other than a firearm or by means likely to produce great bodily injury (ibid. [count 2]); resisting arrest (§ 69 [count 3]); assaulting Sheila L. with a deadly weapon or instrument other than a firearm (§ 245, subd. (a)(1) [count 4]); and willfully inflicting corporal injury upon Sheila, his fiancée and cohabitant (§ 273.5, subd. (a) [count 5]). The amended information further alleged (1) as to count 2, defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)); (2) as to all counts, he was convicted of assault with a deadly weapon other than a firearm in 1995 and burglary in 2003, two qualifying “strike” offenses (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)); (3) as to counts 1 and 3 through 5, he served a prison term for his 1995 assault conviction (§ 667.5, subd. (b)); (4) as to all counts, he served a prison term for his 2003 burglary conviction (ibid.); and (5) as to count 2, he served a prison term for a 1995 burglary conviction (ibid.).
Following a bench trial, the trial court found defendant guilty as charged, found not true the special allegation he served a prior prison term for a 1995 burglary conviction, and found true the other special allegations. Defendant was sentenced to 25 years to life, plus three years for infliction of great bodily injury and two years for two prior prison terms, on count 2; a concurrent 25 years to life, plus two years for two prior prison terms, on count 1; a concurrent six years, plus two years for two prior prison terms, on count 3; a concurrent 25 years to life, plus two years for two prior prison terms, on count 4; and 25 years to life, plus two years for two prior prison terms, on count 5. The court stayed execution of punishment on count 5 pursuant to section 654.
On appeal, defendant contends: the evidence was insufficient to prove he used a deadly weapon during the commission of the assault on Diederich; the evidence did not support the finding that Pflugh suffered great bodily injury as a result of the assault on her; the court erroneously imposed the prior prison term enhancement twice on count 2; the court erroneously imposed an indeterminate sentence on count 5; and the court erroneously denied a Romero motion. We conclude the trial court found only one prior prison term true as to count 2 so the enhancement for a second prior prison term on that count must be stricken. We also conclude the sentence on count 5 is incorrect. In all other respects, we affirm the judgment.
STATEMENT OF FACTS
I. Prosecution’s case-in-chief.
On April 10, 2014, at approximately 7:40 p.m., Officer Diederich of the Bakersfield Police Department was conducting a traffic stop at the intersection of 7th Street and Chester Avenue when a passerby told him “a man [was] beating the shit out of a woman right around the corner.” Diederich drove to the 700 block of K Street, where he saw defendant emerge from a crowd “holding what appeared to be a broken piece of a chair leg or stick in his left hand and a large metal flashlight in the right hand.” Diederich ordered defendant to drop the objects and lie face down on the ground, but the latter did not comply. Defendant, who “appeared very agitated,” “began to move down almost to a kneeling position and then would lunge back up, coming closer to [Diederich], still holding both objects in his hands, and continued to approach [Diederich], causing [Diederich] to back up further and move side to side to stay clear of his reach.” At the same time, defendant was “growling and puffing himself up” and “glaring at [Diederich].” With a pistol drawn and pointed at the ground in a “low ready position,” Diederich repeatedly instructed defendant to drop the objects and lie face down on the ground. Defendant ignored the commands.
As Diederich “continu[ed] . . . dodging . . . defendant’s actions,” Officer Pflugh arrived. With a Taser drawn, she ordered defendant to drop the objects and lie face down on the ground. Defendant charged at Pflugh and tried to grab her. Pflugh fired the Taser. The darts penetrated defendant’s chest and briefly incapacitated him. Defendant released “the broken wooden piece in his left hand” but not the flashlight. He then removed the darts from his chest and charged at Pflugh again. He was “making very strange gurgling, growling noises.” Pflugh discarded the Taser, drew a baton, and struck defendant’s left leg. Defendant “immediately turned his attention back towards [Diederich] and began to charge [at him].” Diederich, who had holstered his pistol and drawn a baton, struck defendant’s left leg. Defendant “turned his attention back to . . . Pflugh.” He lunged at her, wrapped his arms around her legs, lifted her, and “slam[med] her to the ground.” Pflugh “land[ed] on [her] back,” her head hitting the pavement first. She was rendered unconscious momentarily. Defendant “began thrashing [Pflugh] violently and attempting to rip her gun belt off.” He “was growling and snarling” and “was lifting her off the ground and slamming her back down repeatedly.” Pflugh screamed, “Stop, get off of me, get him off of me.” She was “scared to death” and believed defendant “was going to hurt [her] or kill [her].” Diederich struck defendant’s right leg with the baton and ordered him to drop the flashlight, get off Pflugh, and lie on the ground. Defendant ignored the commands and swung the flashlight at Pflugh. Before defendant could hit Pflugh, Diederich “delivered a baton strike to his right hand, knocking the flashlight free.” Afterward, defendant “opened his mouth showing all of his teeth” and “began to lean his head in towards . . . Pflugh very quickly.” Before defendant could bite Pflugh, Diederich kicked his face. When defendant tried to grab Diederich’s waist, Diederich struck his forehead with the baton.
Other officers arrived on the scene and engaged defendant. As a result, Diederich was able to “pry [Pflugh] away from . . . defendant and get [her] out of the way.” Eventually, defendant was subdued. In the meantime, Pflugh “was so dizzy and nauseous” that she “crawled back to [her] patrol car.” She testified she sustained the following injuries:
“My right hand was in a significant amount of pain. I don’t know how or what happened, but my thumb was sore. My fingers were hurt. Both of the back of my elbows, the back of my head, my neck, both of my knees, and my low back were all throbbing.”
On a scale of one to 10, Pflugh rated her pain “an eight or a nine.” Roughly 20 to 30 minutes after the altercation, she went to Central Valley Occupational Medical Center, where she received X-ray and magnetic resonance imaging. Due to her condition, the doctor advised Pflugh not to drive.
Back at the scene, Officer Bailey came across a metal pipe. He also found broken glass and a purse on the ground below a bathroom window. Bailey spoke with Sheila, defendant’s fiancée and cohabitant. She exhibited bruising on an arm, bleeding from the right arm, and “an injury to her forehead.” Sheila reported that defendant came home earlier that day “acting frantic” and “stated that people were after him.” He then accused her of “being with another man” and “sending people . . . after him.” When defendant “began to yell obscene language at her,” Sheila became afraid and attempted to leave the residence several times. Each time he “grabbed her by her hair and threw her on the ground.” At some point, defendant got on top of Sheila when she was lying face up on the floor and “began to strike her multiple times in the chest with his fists.” He ultimately stopped. Although Sheila “wanted to leave,” she stayed. Defendant had told her during a prior domestic violence incident that “if she ever called the cops on him again, he’d beat her so bad that no one would be able to identify her body.” “[S]he was in fear for her safety.”
Sheila told Bailey that, a few hours later, she “decided that she would try to go to the store.” Defendant “told her that she could not leave . . . because he thought she would go see another man.” Sheila entered the bathroom, tossed her purse out the open window, and “tried to get out through the [open] window.” Before she could exit and while she “was holding on to the . . . window,” defendant “grabbed her by her hair and threw her to the ground,” breaking the window in the process. Defendant dragged Sheila to the living room. When Sheila “tried to crawl out the front door,” defendant “slammed the door on her arm.” He “grabbed an aluminum pipe and began to strike her on her buttocks multiple times with the pipe.” Defendant then “threw [Sheila] against [the] detached window frame that was [lying] on the living room floor, cutting her right arm.” At some point, when defendant was “not pay[ing] attention to her,” Sheila escaped. Outside the residence, defendant “chased [Sheila],” “caught her,” “grabbed her by her hair,” and “threw her to the ground, partially on the grass and partially on the concrete.” He “wrapped both of his hands around her neck and began to strangle her” for approximately 10 seconds. Sheila “was not able to breathe.” Defendant “grabbed her head” and “forcibly slam[med] it on the ground” “multiple times.” He also “str[uck] her lower body with an unknown object.” A neighbor appeared and yelled at defendant to stop, which allowed Sheila to flee to the neighbor’s residence. Approximately 10 minutes later, Sheila witnessed defendant attacking Pflugh. Sheila thought defendant attacked Pflugh in particular because “he hates females.”
Sheila told Bailey she feared for her safety and her life and wanted defendant arrested. She accepted an emergency protective order. Sheila confirmed she was “not under the influence of drugs during the incident.”
On April 10, 2014, although her nausea, dizziness, and right hand pain eventually subsided, Pflugh still experienced pain in her head, neck, and lower back. On a scale of one to 10, she rated her head and neck pain “probably a six” and her back pain “about an eight.” While the head and neck pain diminished within “a day or two” and “between five days and a week,” respectively, the back pain “was continuous for several weeks.” Pflugh was prescribed pain medication (“either Norco or Vicodin”) as well as the muscle relaxant Flexeril. She took Flexeril for at least four weeks. In addition to several follow-up visits with her doctor, Pflugh “was sent to Southern California Orthopedic Institute for [her] back injury”; underwent six weeks of physical therapy; and was off work for almost three months. At the time of trial, she still had lower back pain.
At trial, Sheila testified she was formerly addicted to heroin. On the evening of April 10, 2014, she and defendant had an argument at home. He wanted her to stop abusing heroin and suspected she and another addict had been doing so at the house. Sheila denied that defendant “grabbed [her] by [her] hair and threw [her] to the ground” and “g[o]t on top of [her] in the living room and . . . str[uck] [her] on the chest multiple times.” She also denied telling an officer that defendant once said, “If you ever call the cops on me again, I’ll beat you so bad that no one will be able to identify you.” At some point, Sheila went to the bathroom “looking for a way to leave.” She “tried to open the window [but] the window broke.” The window was “old” and had been “cracked already.” Meanwhile, outside the bathroom, defendant said, “Please, Sheila, just let me talk to you. I just want to talk to you.” Sheila denied that defendant “grabbed [her],” “threw [her] to the ground,” and “drag[ged] [her] back into the living room.”
When Sheila tried to exit through the front door, defendant “[un]intentionally” “shut the door on [her] arm,” “grabbed [her],” and told her “not to leave” and “that he wanted to talk to [her].” He also held a “small, little round pipe,” which “did hit [her].” Sheila explained she “was in the way” and defendant “didn’t mean . . . to hit [her] with the pipe.” She did not recall telling an officer that defendant “thr[e]w [her] against the detached window frame, cutting [her] right arm[.]” Eventually, Sheila “did go out the front door” and “took off to run,” but she tripped and fell, injuring her forehead and ankle. Defendant, who “was coming after [her],” “tripped over [her],” “fell on [her],” and “picked [her] up under the arms.” Sheila believed “the people next door or whatever s[aw] [what happened] and thought [she and defendant] were fighting and called the cops.” When a neighbor asked what was happening, she answered, “Nothing. He just fell, and he fell on top . . . of me, and we were just arguing.” Sheila denied that defendant “grabbed [her] by the hair and threw [her] to the ground”; “strangle[d] [her] while [she] w[as] on the ground”; “grab[bed] [her] by the head and repeatedly slam[med] [her] head into the ground”; and “str[uck] [her] on the lower part of [her] body with an unknown object.” She further asserted “once he w[as] outside, he had nothing in his hands.”
When officers arrived, Sheila heard a neighbor urging defendant to “get down.” Defendant lied face down on the ground with “both hands extended . . . above [the] forehead.” One of the officers placed his knee on defendant’s back. Sheila then heard another officer, a female, saying, “Get him, get him, get him.” At some point, the male officers “were hitting [defendant] with the baton.” When the female officer “trip[ped] on him,” defendant “grabbed her” “around the legs” and “held her like a shield.” The male officers continued to strike him. Defendant “holler[ed] and scream[ed] . . . [for] help.” Sheila denied seeing defendant attack the female officer. She also denied telling an officer that defendant attacked the female officer because “he hates females.” Sheila did not request the protective order, which was given “automatically.”
II. Defense’s case-in-chief.
On April 10, 2014, defendant and Sheila argued about the latter’s heroin addiction. When he asked her what was in her purse, she “wanted to take off.” Sheila entered the bathroom, opened the window, and threw out her purse. Defendant “went to close the window” and “the window broke.” The two then “went back into the living room.” While defendant was in the kitchen, Sheila “ran out the door.” She “fell right . . . by the curb.” Defendant, who chased after her, “fell on top of her.” A neighbor told him to “[l]eave her alone.”
Defendant and Sheila returned home. Defendant, who was upset, took a flashlight, headed to the back porch, and “started busting everything up,” including a chair and a table. He picked up a broken table leg and went to question a neighbor, another heroin addict, about “where [Sheila] got her heroin[].” There, defendant encountered Diederich and Pflugh, both of whom ordered him to drop the flashlight and table leg and lie face down on the ground. He complied. Defendant, however, heard “something dragging, a pipe or something,” became fearful, and rolled. Someone said, “Get him. Hit him.” Defendant “started getting hit, hit and hit.” He “rolled some more to get away” and bumped into Pflugh. Defendant “put [his] head in between her legs” and “pulled her forward” onto his back for “protection.” Nonetheless, officers “kept hitting” him. Defendant testified he sustained the following injuries:
“My head, my back, my neck, my legs, my hands. Both of them were broken. I got . . . crushed vertebrae in my neck. . . . [A] fractured back, fractured pelvis. This finger, look at. It’s turned to the right. They tried to twist the fingers off. [¶] . . . [¶] . . . And then on my legs, there’s fractures in there.”
Defendant denied inflicting any injury on Sheila on April 10, 2014. Whenever he “get[s] mad” at her, he “take[s] it out on things [he] repair[s],” such as the chair and table. Defendant also denied being under the influence of methamphetamine on April 10, 2014. He admitted he kept an aluminum pipe in the living room for self-defense, but he never touched the pipe on April 10, 2014.
DISCUSSION
I. Substantial evidence supported defendant’s assault conviction on count 1 and the great bodily injury finding on count 2.
a. Standard of review.
To determine the sufficiency of the evidence to support a conviction or an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60; People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) If the circumstances, plus all the logical inferences the trier of fact might have drawn from them, reasonably justify a finding, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Albillar, supra, at p. 60; People v. Tripp, supra, at p. 955.) “ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Lee (2011) 51 Cal.4th 620, 632.)
b. Analysis – assault conviction on count 1.
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “Any person who commits an assault with a deadly weapon or instrument, other than a firearm, . . . upon the person of a peace officer . . . , and who knows or reasonably should know that the victim is a peace officer . . . engaged in the performance of his or her duties, when the peace officer . . . is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.” (§ 245, subd. (c).)
On appeal, defendant “does not dispute the sufficiency of the evidence to show that he committed an assault on Officer Diederich” but claims “the evidence was insufficient to prove that he used a deadly weapon during the commission of the assault.” We disagree.
“[A] ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing[,] and likely to produce, death or great bodily injury.’ [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) Thus, “an item commonly used for a nonviolent purpose, such as a baseball bat or a table leg, could qualify as a [dangerous or deadly weapon] . . . ‘when the attendant circumstances . . . indicate[] that the possessor would use the object for a dangerous, not harmless, purpose.’ [Citation.]” (People v. King (2006) 38 Cal.4th 617, 624.)
The record—viewed in the light most favorable to the prosecution—demonstrates defendant was holding a table leg in his left hand and a large metal flashlight in his right hand when he encountered Diederich. Defendant refused to relinquish these objects even though Diederich ordered him to do so more than once. Instead, defendant “growl[ed],” “puff[ed] himself up,” “glar[ed]” at Diederich, and approached Diederich in such a hostile manner that Diederich was forced to “back up,” “dodg[e],” and “stay clear of his reach.” Pflugh arrived and briefly incapacitated defendant with a Taser, which forced defendant to let go of the table leg. Nonetheless, defendant charged at Diederich with the flashlight still in hand. Diederich repelled him by striking his left leg with a baton. Given these circumstances, a rational trier of fact could find defendant would have used the table leg and flashlight for a dangerous, not harmless, purpose. That he failed to land a blow on Diederich with either object is immaterial. (See People v. Aguilar, supra, 16 Cal.4th at p. 1028 [“One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument . . . .”]; In re D.T. (2015) 237 Cal.App.4th 693, 698 [“Because [section 245] focuses on potentiality, the People need not prove an actual injury to a victim, or even physical contact between the defendant and a third person, in order to substantiate a conviction for assault with a deadly weapon other than a firearm.”].)
c. Analysis – great bodily injury finding on count 2.
“Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” (§ 12022.7, subd. (a).) A “ ‘great bodily injury’ ” is “a significant or substantial physical injury.” (Id., subd. (f).) “Proof that a victim’s bodily injury is ‘great’ . . . is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.” (People v. Cross (2008) 45 Cal.4th 58, 66.) There is “no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750; see People v. Le (2006) 137 Cal.App.4th 54, 58-59 [“[A] ‘significant or substantial physical injury’ need not meet any particular standard for severity or duration . . . .”].) “[S]ome physical pain or damage, such as lacerations, bruises, or abrasions[,] is sufficient for a finding of ‘great bodily injury.’ ” (People v. Washington (2012) 210 Cal.App.4th 1042, 1047.)
“[W]hether a victim has suffered physical harm amounting to great bodily injury is not a question of law . . . but a factual inquiry . . . .” (People v. Cross, supra, 45 Cal.4th at p. 64.) “ ‘ “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.” ’ [Citations.] Where to draw that line is for the [trier of fact] to decide.” (Ibid.) “It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact.” (People v. Tripp, supra, 151 Cal.App.4th at p. 955.) “ ‘ “If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ’ [Citation.]” (People v. Escobar, supra, 3 Cal.4th at p. 750, fn. omitted.)
We conclude substantial evidence supported the great bodily injury finding. The record—viewed in the light most favorable to the prosecution—demonstrates defendant picked up Pflugh and slammed her down, causing her to lose consciousness momentarily. While she was on her back, defendant proceeded to “thrash[] her violently” and “lift[] her off the ground and slam[] her back down repeatedly.” In the immediate aftermath of the altercation, Pflugh experienced considerable pain—“an eight or a nine” on a scale of one to 10—in the back of her head, neck, and elbows; her right hand; her lower back; and her knees. She “was so dizzy and nauseous” that she “crawled back to [her] patrol car.” That day, a physician advised Pflugh not to drive. A week later, although her nausea, dizziness, and head, neck, and right hand pain subsided, she still experienced considerable pain—“about an eight” on a scale of one to 10—in her lower back. Consequently, Pflugh was prescribed pain medication (“either Norco or Vicodin”) and a muscle relaxant (Flexeril); was treated at Southern California Orthopedic Institute; underwent six weeks of physical therapy; and was off duty for almost three months. Moreover, she still had lower back pain at the time of trial.
II. The Attorney General concedes the trial court erroneously imposed the prior prison term enhancement twice on count 2.
As to count 2, the amended information alleged two prior prison terms: a 1995 conviction for burglary (Los Angeles County Superior Court case No. KA25151) and a 2003 conviction for burglary (Los Angeles County Superior Court case No. KA06225701). The trial court found not true the allegation defendant served a separate prison term for a 1995 burglary conviction. At sentencing, however, the court enhanced defendant’s sentence on count 2 by “two years, pursuant to two sections of Penal Code Section 667.5[, subdivision ](b).”
On appeal, defendant argues the court was authorized to impose the prior prison term enhancement only once on count 2. The Attorney General agrees. We accept this concession.
III. The Attorney General concedes the trial court erroneously imposed an indeterminate sentence on count 5.
As noted, pursuant to the Three Strikes law, the court imposed (then stayed) a sentence of 25 years to life on count 5. On appeal, defendant argues this indeterminate sentence should be vacated because the underlying crime—willful infliction of corporal injury upon a spouse, fiancée, or cohabitant—does not constitute a serious or violent felony. The Attorney General agrees. We accept this concession.
IV. The trial court did not abuse its discretion when it denied defendant’s Romero motion.
a. Background.
Prior to sentencing, defendant filed a Romero motion, asking the court to vacate “at least one of the ‘strike’ prior[s] previously found true in this case.” Attached to the motion, inter alia, were letters from defendant’s neighbor and Sheila’s daughter. Both commented that defendant’s behavior stemmed from a mental illness.
At the outset of the motion hearing, the court acknowledged it had “read and considered” the motion, the letters, and the probation officer’s report dated June 1, 2015, and afforded the parties the opportunity to argue. The prosecutor opposed the motion on the following grounds:
“[D]efendant has continuously been in violent criminal activity since 1975. He’s never even really been released from prison but for maybe . . . three years . . . . He’s got, beginning in 1975, the [burglary]. He’s got in ’79 another [burglary]. Numerous drug activity. And then again in ’03 a first-degree burglary, including another [assault with a deadly weapon other than a firearm] in which he received six years.
“But just even going back through, he’s always constantly violating his parole, probation, continuing to be reincarcerated. And it’s not just because of drugs. He’s got another [assault with a deadly weapon other than a firearm] from ’94. . . . [J]ust to indicate because it is specific to this case, from 2013, he does have a violation of [section] 148[, subdivision ](a)(1), which I do think is particularly interesting for this case.
“And so as far as his criminal history, the amount of violence, the continuation of his incarceration since ’75, that, obviously, indicates that . . . defendant is . . . within the spirit of the Three Strikes law.
“We also, though, have an incident in which . . . defendant is violently abusing a woman that he states he loves.
“He also has admitted to drug use throughout the probation recommendation, and that was also part of the facts of the case, which is . . . part of his criminal history that is clearly ongoing.
“But . . . the violence doesn’t just stop there. There’s indication from the testimony that he was aiming violence towards the neighbors, and so when the police officers get there, they have to assist in trying to subdue . . . defendant. And yet, even in that situation, where individuals who, you know, may – their crimes might tend to be just directed at someone who has ignited their passions in that, stating that towards the domestic partner, but he’s just being violent towards the entire community and, most importantly, the police officers that are there to protect [Sheila], the other victim in this case and also the community, and he turns on them. And he doesn’t just turn on them in a, you know, I don’t want to cooperate, he turns with the amount of violence that he actually almost does kill one of the officers. And she’s on the ground, and he takes her to the ground and causes serious bodily injury. The other officers are there trying to save her life.
“And yet, . . . defendant just mocks and laughs the entire time we’ve been through this entire court process. This is not an individual that is outside the scope of the [Three] Strikes law. He is a violent person. He has no care for or concern for anyone but himself and, most importantly, the police officers that most people would at least at that point submit to being put into custody. That’s the type of individual that maybe would be, you know, outside the scope of the Three Strikes law, but . . . there is nothing about this case, anything, whatsoever, that would indicate that he should have one of his . . . past strikes stricken and [be] given leniency. There is no reason, whatsoever.
Defense counsel countered:
“The prosecution . . . starts to bring up facts that . . . defendant was convicted of burglaries in 1975 and 1979. According to the probation officer’s report, the one from ’75 was a misdemeanor; the one from ’79 was a second-degree burglary. The only first-degree burglary that . . . defendant has suffered was the one from 2003. The other strike being a[n] [assault with a deadly weapon other than a firearm] from 1994, which is quite old compared to the current date.
“The bulk of . . . defendant’s other record appears to be a lot of drug-related and intoxicating substances involved. And, again, I think that there was some evidence presented or mentioned of the fact that . . . defendant was using methamphetamine on the date in question.
“The reason I bring that up is while . . . defendant in this case has been previously found [mentally incompetent], sent to Patton, returned, there was a motion filed under [section] 1026 for the alienist to be appointed to determine whether or not . . . defendant was actually legally insane at the time of the commission of this offense, and the alienist came back, according to the court’s file, and found that he was not insane, and thereafter that plea of not guilty by reason of insanity was withdrawn.
“I think . . . defendant’s history of use of the intoxicating substances, his use of intoxicating substances on the day in question, while the fact that he may not have a legal mental defense to the charges in this case, however, operating under what I would call diminished mental state, which is alluded to even in the letters of support of . . . defendant for purposes of sentencing, are all matters that the Court can consider. [¶] . . . [¶]
“. . . [E]ven if the Court were to strike one of the strikes in this case, . . . defendant is still looking at a substantial period of time in the Department of Corrections. [¶] . . . [¶]
“So I think looking at . . . defendant’s history, his potential diminished mental state, while not being insane at the time of the commission of the offense, the length of sentence that . . . defendant would be potentially receiving, even if the Court were to strike a strike, are all relevant considerations that this Court can consider, and I’m asking the Court to do that.”
The trial court ruled:
“I have heard the evidence in the case. I have read and considered the motion, the formal motion to strike that has been filed, and I’ve considered the arguments that I’ve heard today. I still see no basis, whatsoever, that would support the Court exercising its discretion to strike a strike.
“I agree with the People that defendant, in light of his actions and in light of his record, is a classic example of the situation in which the voters intended to bring into the purview of the Three Strike system, I’ll call it, for want of a better word.
“Accordingly, I will deny the motion to strike.”
b. Standard of review.
“[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 (2004) 33 Cal.4th 367, 375 (Carmony).) “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.” ’ [Citation.] 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.” (Id. at pp. 376-377.) Hence, “a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances.” (Id. at p. 378.)
c. Analysis.
“[A] judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) This provision “permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” (Romero, supra, 13 Cal.4th at pp. 529-530; accord, People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . the court . . . 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, at p. 161; accord, Carmony, supra, 33 Cal.4th at p. 377; see People v. Myers (1999) 69 Cal.App.4th 305, 310 [“The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.”].)
We cannot conclude the court’s refusal to vacate one of defendant’s prior strikes was irrational or arbitrary. In the instant case, defendant was convicted of multiple counts of assault with a deadly weapon other than a firearm, inter alia. He inflicted great bodily injury upon Pflugh, a peace officer. (See ante, at pp. 10-13.) Defendant also brutalized Sheila, his fiancée. Inside their home, he “grabbed her by her hair and threw her on the ground” and “str[uck] her multiple times in the chest with his fists.” When Sheila tried to sneak out through the bathroom window, defendant “grabbed her by her hair and threw her to the ground”; dragged her to the living room; “slammed the [front] door on her arm”; “str[uck] her on her buttocks multiple times with [an aluminum] pipe”; and “threw [her]” onto a “detached window frame that was [lying] on the living room floor, cutting her right arm.” Although Sheila ultimately exited the residence, defendant did not relent. He “grabbed her by her hair” and “threw her to the ground, partially on the grass and partially on the concrete”; “wrapped both of his hands around her neck and . . . strangle[d] her” for approximately 10 seconds; “grabbed her head” and “forcibly slam[med] it on the ground” “multiple times”; and “str[uck] her lower body with an unknown object,” likely the pipe, table leg, or flashlight. Multiple officers had to restrain and subdue defendant. “There is little about [defendant]’s present felon[ies] . . . that is favorable to his position. Indeed, there is nothing.” (Williams, supra, 17 Cal.4th at p. 163.) Regarding his criminal history, defendant admits on appeal he “has [20] separate convictions dating back to 1975,” including the strikes in 1995 and 2003. Nine of those convictions involved drug use or possession. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 [“[T]he overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career.”].) Defendant does not contest he committed numerous parole and probation violations and was continuously reincarcerated. (See People v. Philpot (2004) 122 Cal.App.4th 893, 907 [the defendant’s continuous criminal history, his parole violations, the seriousness of the present offenses, his seemingly dim prospects for rehabilitation, and his lack of meaningful crime-free periods justified denial of his Romero motion].)
On appeal, defendant asserts the court “ignored [his] mental health issues,” “ignored [his] problems with drug abuse,” “did not consider [his] age relative to the length of sentence.” The record shows, however, these concerns were raised in the Romero motion and/or by defense counsel at the motion hearing and the court stated it considered them.
“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 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, supra, 33 Cal.4th at p. 378.) In the absence of such extraordinary circumstances, we uphold the court’s ruling.
DISPOSITION
The second prior prison term enhancement imposed on count 2 is stricken and the sentence on count 5 is vacated. The matter is remanded for resentencing on count 5 consistent with this opinion. The trial court is directed to prepare an amended abstract of judgment and to forward certified copies to the appropriate authorities. In all other respects, the judgment is affirmed.


DETJEN, Acting P.J.
WE CONCUR:



PEÑA, J.



SMITH, J.