Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F05909454-1& F07902814, Houry A. Sanderson, Judge.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J. and Kane, J.
INTRODUCTION
Appellant Thomas Hugh Beam, Jr., contends the trial court abused its discretion when it found he had engaged in continuing criminal conduct and refused to strike one of his prior convictions because the finding of continuous criminal conduct is not supported by the record. We disagree and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On December 21, 2006, Beam was charged in Fresno Superior Court case No. F05909454-1 with embezzlement (count 1) and check forgery (count 2). It was alleged as to count 1 that Beam had damaged and destroyed property exceeding $50,000 in value. As to both counts, it was alleged that Beam had suffered two prior strike convictions for lewd and lascivious acts with a child. The charges arose out of Beam’s conduct in making unauthorized purchases and withdrawals of funds belonging to his employer in the amount of $117,326.94.
On April 11, 2007, Beam was charged in Fresno Superior Court case No. F07902814 with theft from an elder and dependent adult (count 1) and grand theft (count 2). The complaint further alleged that Beam committed the offenses while on bail, had suffered two prior strike convictions for lewd and lascivious acts with a child, and had served two prior prison terms. The charges in this case arose out of Beam’s conduct in writing numerous checks and making numerous unauthorized charges on accounts belonging to his 74-year-old mother.
On April 25, 2007, in case No. F05909454-1, Beam pled no contest to both counts and admitted all allegations. In case No. F07902814, Beam pled no contest to count 1, admitted the on-bail enhancement, and the two strike priors. Count 2 and the remaining allegations were dismissed pursuant to the plea agreement. There were no promises or agreements regarding an indicated sentence included in the plea bargain.
On June 6, 2007, the trial court denied Beam’s motion pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 to strike one of his prior convictions. In case number F05909454-1, Beam was sentenced to two concurrent terms of 25 years to life, plus a consecutive one-year term for the property value enhancement. In case No. F07902814, Beam was sentenced to a term of 25 years to life, to be served consecutively with the terms in case No. F05909454-1, plus a consecutive two-year term for the on-bail enhancement.
DISCUSSION
Beam contends the trial court abused its discretion in finding that he engaged in continuing criminal conduct and using that as a basis to refuse to strike a prior conviction because the finding is not supported by the record. On the contrary, the record supports the trial court’s finding.
Beam admitted that he had two prior strike convictions in 1991 for lewd and lascivious conduct with a child. Beam also pled no contest to three additional strike offenses in 2007, which were charged in the two complaints.
At sentencing, the trial court noted that Beam’s prior offenses were “somewhat of the aged status” with the convictions dating to 1991. The trial court then went on to state that “Beam’s behavior since those convictions, if anything, of these two charges continue[s] to show that he continues to act criminally.”
Either the trial court misspoke at sentencing or the court reporter erred because the transcript refers to Beam’s earlier convictions as having occurred six years prior to the instant offenses. The probation report, the complaints, and Beam’s plea all have the correct date of 1991.
Beam argues on appeal that “[t]he trial court could not have exercised an informed sentencing discretion to consider whether it would strike one of [Beam’s] 1991 convictions because it had no information before it to support a finding that [Beam] had engaged in criminal acts during the 16-year period between his 1991 convictions and the current cases.” This argument, however, misconstrues the trial court’s comment.
The trial court did not reference Beam’s prior parole violations in its comments at sentencing and did not need such evidence in order to make a finding that Beam “continues to act criminally.” The continued criminal conduct is demonstrated by the 1991 convictions, the 2005 embezzlement and grand theft from his employer, and the 2007 theft from his mother. Whether there were any intervening offenses or parole violations is irrelevant because the record of convictions in 1991 and the current offenses supported the trial court’s finding.
It is clear from the record that the trial court understood its discretion to strike a prior conviction in the interests of justice. (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court declined to exercise its discretion to strike a prior conviction, finding that Beam “continues to act criminally.” The record supports the trial court’s finding.
The burden is on Beam to establish that the trial court has acted in an irrational or arbitrary manner. (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977-978.) He has failed to demonstrate any abuse of discretion.
DISPOSITION
The judgment is affirmed.