Opinion
F084102
03-27-2023
THE PEOPLE, Plaintiff and Respondent, v. WILBERT BRIDGES, Defendant and Appellant.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F21903117. Adolfo M. Corona, Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT*
Defendant Wilbert Bridges pled no contest to second degree robbery. He also admitted having suffered a prior "strike" conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) which also qualified as a prior serious felony conviction (§ 667, subd. (a)). He requested that the trial court strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court declined to do so and sentenced defendant to a total term of four years in prison. Defendant contends the court's refusal to strike his prior strike conviction was an abuse of discretion. The People disagree. We affirm.
All further statutory references are to the Penal Code.
PROCEDURAL SUMMARY
On February 15, 2022, the Fresno County District Attorney filed an amended information charging defendant with second degree robbery (§ 211; count 1). The information further alleged that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) which also qualified as a prior serious felony conviction (§ 667, subd. (a)).
On February 16, 2022, defendant pled no contest to count 1 and admitted the prior conviction allegations. The trial court indicated that it would strike the five-year serious felony conviction enhancement and impose a sentence within a four-year lid.
On March 7, 2022, defendant filed a request, inviting the trial court to strike the prior strike conviction allegation for purposes of sentencing pursuant to People v. Superior Court (Romero).
On March 17, 2022, the trial court denied defendant's request to strike the prior strike conviction, but it struck the prior serious felony conviction allegation pursuant to section 1385 for purposes of the five-year section 667, subdivision (a) enhancement. It then imposed an aggregate sentence of four years as follows: on count 1, four years (the lower term of two years doubled due to the prior strike conviction). After the court imposed the sentence, defendant moved to withdraw his no contest plea. The trial court denied defendant's motion.
On the same date, defendant filed a notice of appeal.
Defendant pled no contest pursuant to People v. West (1970) 3 Cal.3d 595 and stipulated that the trial court could consider the preliminary hearing transcript in finding a factual basis for his plea. Our factual summary is therefore drawn from the preliminary hearing transcript.
On April 14, 2021, at approximately 10:48 p.m., Fresno Police Officer Alana Williams was dispatched to a call in southeast Fresno regarding a robbery. When she arrived, she contacted C.H., who was hiding in a convenience store. C.H. told Williams that he was walking near a bus stop when he heard faint yelling. C.H. noted that he was "slightly deaf." When C.H. turned around, he saw defendant-who was wearing a red baseball cap, sunglasses, a red bandana over his mouth, a red shirt, and a white button-up shirt-standing in close proximity to him. Defendant yelled at C.H.:" 'When I'm yelling, you stop.'" C.H. explained that he was hard of hearing. C.H. told Williams that defendant removed a firearm from his waistband, pointed it at the C.H.'s face at a distance of about 12 inches, and demanded his property saying," '[d]rop them'" or" 'drop your bags.' "
C.H. was afraid so he gave his backpack to defendant, turned around, and walked away. C.H. went to the convenance store, called 911, and waited for officers to arrive.
Fresno Police Sergeant Parvinder Dhillon was the detective assigned to investigate the incident. He reviewed body camera footage from another officer who had contact with defendant several hours after the incident. He noticed that defendant's appearance matched the physical description and clothing that C.H. gave of the person who robbed him. Dhillon then obtained surveillance camera footage from a restaurant near the incident and from the bus stop, both of which captured the interaction between defendant and C.H. The surveillance camera footage depicted defendant's interacting with C.H. while defendant wore the same clothing he was identified in by other officers several hours later.
Dhillon noted that, in reviewing the surveillance camera footage, he saw that defendant did not have a firearm in his hand. Instead, he held a black cell phone. The surveillance camera footage further depicted defendant taking C.H.'s property and walking away.
DISCUSSION
Defendant contends that the trial court abused its discretion in failing to strike the prior strike conviction pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497. The People disagree, as do we.
A. Additional Background
On February 15, 2022, the trial court provided defendant an indicated sentence in which it expressed that it was unlikely to strike the prior strike conviction: "[Trial Court:] I don't feel comfortable striking the [s]trike. It is a 2009 conviction. [¶] ... [¶]
"There's an alleged-with the [s]trike there's ... also an alleged nickel, [section] 667[, subdivision ](a)(1), which is that same [section] 211. I've discussed it with both [c]ounsel and I think they make clear presentations. The Court would feel okay striking the nickel.
"The nickel, [defendant], is that [section] 667[, subdivision ](a)(1) and that's five years. I would strike that but I would not strike the [s]trike, and the [section] 211 is a two, three, five. The Court would not entertain probation but would be supportive of the People's offer of two years. With the [s]trike it would be doubled to four years and that's where I am so far."
The following day, before taking defendant's plea, the trial court repeated its indicated sentence:
"[Trial Court]: It was my understanding that [defendant] wanted to accept the Court's indicated which was the mitigated term on [c]ount 1 of two years. It's a two, three, and five, admitting the [s]trike. That would make it four years, and then the Court would strike the nickel for sentencing purposes.
"The four years is a lid, and that's Court language that [defendant] needs to understand. I know both [c]ounsel know that the lid means a maximum. That's a lid like a lid on a jar. That's the maximum. You could argue for less. You're welcome to argue whatever you want to argue that's less than four years, including strike the [s]trike. If I strike the [s]trike what I told [c]ounsel and [defendant]-and I don't change- was that if I go and strike the [s]trike most likely it would be the three years on the two, three, five. Okay. I'm telling that to [defendant]. [The prosecutor] understands. [Defense counsel] understands. For example, an argument is 'Judge, give me two years on that. Strike the [s]trike or give me probation.' What I'm saying is if I strike the [s]trike the likely landing for me is three years under two, three, five. I'm keeping an open mind but that's what I'm telling you, [defendant]. Do you understand that?
"[Defendant]: Yeah."
Before sentencing, defendant submitted a statement in mitigation explaining the considerable trauma he had suffered. He was abandoned by his mother at a very young age and raised by his father and stepmother. When he was five years old, defendant's 17-year-old stepbrother shot defendant's father. Defendant heard the gunshot and found his father dead. At his father's funeral, he met his mother for the first time. He moved in with his mother and never saw his step siblings again. Defendant's mother used methamphetamine and physically abused him. Defendant began using alcohol and marijuana at age 16, cocaine at age 18, "[e]cstasy" at age 23, and methamphetamine at age 27. When defendant was 23 years old, his mother died. The following year, defendant committed a robbery-the strike conviction he asked the court to strike.
Defendant had no employment history and, at the time of defendant's offense in this case, he was homeless.
At the sentencing hearing on March 17, 2022, the trial court explained its decision to strike the five-year prior serious felony conviction enhancement allegation but not strike defendant's prior strike conviction:
"I respect your position, [defense counsel], and [defendant] and his race and the culture that he grew up in. I'm not talking about African American [culture] but the culture of family and the difficulties with it. [¶] ... [¶]
"One of the things that you look at is- and [defense counsel] referred to it was at night. The young man that was involved, the victim, was hard of hearing a little bit. But I look at all of it, all of the circumstances, and that includes 'I'm going to go talk to the guy, the victim.' And he drops his bags. I'm going to go- 'Hey, I'm going to go to that store and say you left your bags. You left them. I just wanted to talk. I'm sorry,' and be sensitive to that.
"I think about all those things that would happen in the humanistic analysis to determine what's appropriate for [defendant]. That matters to me. The history of [defendant] matters to me. Yeah, I agree there's a lot of history, and I have great empathy for difficulties growing up with family and what's happened in his life. I agree that those are difficult things. [¶] . [¶]
"The history of [defendant] is a difficult one. He has several theft cases. He has a prior [section] 211, yes. We don't know the facts. We have [section] 459s. Misdemeanors. This is from the juvenile record, the [section] 484 and the attempted auto theft, petty theft and a burglary, and disturbing the peace by fighting. That's up to 2002.
"Then, as an adult, exhibiting not a firearm, misdemeanor, grand theft, burglary, petty theft with priors, and then the Court has to look at the actions of the young man after he's been sentenced. There's a grand theft in 2007 with several alleged-well, several parole violations. That's what the report reads. And then after that grand theft is a misdemeanor in 2007. Then there's another grand theft but now a felony. He gets the two years, and then the 2009 [section] 211. He received CDC for four years using a deadly weapon. A 245(a)(4) in 2014 and that's about five years later. In 2018 having ammunition and then 2018 some PRCS violations. This is where we are.
"The nature of these charges- there was no gun that I saw but there was a phone. There were statements made and all the circumstances that [defense counsel] talked about. It was night and the force of the statement. And, frankly, you take the victim as you get them with the hearing issue, and then the actions thereafter are important to me about why wouldn't he run over there and say, 'Hey. I just wanted to talk. Here's your stuff. I don't want it' but that didn't happen.
"But, overall, the nature of the [section] 211 led to my indicated and I'm going to support that. I am going to deny the motion with all due respect, the motion to strike the [s]trike and continue to give [defendant] the mitigated factor. I don't believe I saw anything from our discussions that's different here in the RPO that changed my thought on it. At the discussion about it with [defendant] taking the plea I kept an open mind about striking the [s]trike. I will still strike the nickel, of course. If I didn't already I would now."
B. Relevant Legal Principles
Section 1385 grants the trial courts limited discretion to strike prior convictions in the Three Strikes cases. Trial courts may strike prior felony conviction allegations in cases brought under the Three Strikes law in the furtherance of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) 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 [Three Strikes] 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 (Williams).)
A trial court's denial of a Romero motion is subject to review for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The trial court's decision" '" will not be reversed merely because reasonable people might disagree." '" (Id. at p. 377.)" '" 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'" '" (Ibid.) In order to establish an abuse of discretion, the defendant must show the "decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)
The Three Strikes law establishes that not striking a prior strike is the norm, and there is a "strong presumption that any sentence that conforms to [the] sentencing norm is both rational and proper." (Carm ony, supra, 33 Cal.4th at p. 378.)
C. Analysis
Defendant contends that the trial court's refusal to strike his prior strike conviction was an abuse of discretion because it did not properly consider defendant's history of substance abuse, lack of employment history, and the absence of any "actual violence" in his criminal history. The People respond that the trial court's focus on defendant's criminal history was proper, defendant's history of substance abuse was not clearly a mitigating factor, and defendant had suffered prior violent convictions-assault by means of force likely to create great bodily injury (§ 245, subd. (a)(4)) and robbery (§ 211) which the people argue is violent by definition. We agree with the People. Based on the strong presumption against striking a prior strike conviction, defendant's lengthy criminal history, and defendant's apparent disregard for the law, undeterred by prior punishments, we conclude that the trial court did not abuse its discretion in refusing to strike defendant's prior strike conviction.
First, the trial court considered defendant's present felony conviction. It commented that defendant did not actually use a weapon but approached C.H. at night and made a "force[ful]" statement regarding C.H. dropping his bags. The court further commented that defendant could have told C.H. that he just wanted to talk and returned his property had he not intended to rob C.H. Defendant suffering his second robbery conviction "reveal[ed] that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable-but had failed or refused to learn his lesson." (Williams, supra, 17 Cal.4th at p. 163.) The court reasonably concluded that defendant's second robbery and third violent offense demonstrated that he was a dangerous recidivist offender who did not fall outside the spirit of the Three Strikes law.
Second, the court considered defendant's prior convictions. Defendant was first convicted of a misdemeanor exhibiting a deadly weapon (not a firearm) in 2003. Since that time, defendant committed nine criminal offenses, including a 2009 strike conviction for robbery. Specifically, defendant's convictions included attempted grand theft, burglary, misdemeanor petty theft with priors, misdemeanor grand theft, grand theft, robbery, assault with force likely to cause great bodily injury, and possession of a firearm or ammunition by a felon. He also violated probation once, postrelease community supervision once, and parole on five occasions. Again, the court could reasonably have concluded as to defendant's criminal history that defendant should not be deemed outside the Three Strikes scheme's spirit. (Williams, supra, 17 Cal.4th at p. 161.)
Third, we note that defendant's prior strike conviction took place 13 years prior to the case at bar. However, "[i]n determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813; see People v. Solis (2015) 232 Cal.App.4th 1108, 1124 [a prior strike conviction is not properly stricken merely because it is 30 years old].) "To be sure, a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as 'washing out.' [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." (Humphrey, at p. 813.) Here, defendant did not live a" 'legally blameless life'" after his prior strike conviction-he committed assault with force likely to cause great bodily injury, possessed a firearm or ammunition, and violated postrelease community supervision. (Ibid.) The age of the conviction and defendant's youth at the time of the prior strike conviction did not support striking that conviction.
Fourth, defendant argues that the trial court failed to give sufficient weight to defendant's history of substance abuse as a cause of his criminality. Again, we disagree. The court considered the alternative sentencing report that detailed defendant's history of controlled substance abuse. The trial court expressly noted that it considered the option of sending defendant to a treatment program rather than prison but it "did[ not] think it[ was] appropriate given [defendant's] history." Nevertheless, the trial court indicated "that any drug or alcohol program in [the Department of Corrections and Rehabilitation] would also be appropriate" but noted that the program placement decision was up to the prison system. Defendant's substance abuse had-according to the alternative sentencing report-been longstanding. Defendant had suffered numerous prior convictions and was sentenced to prison where he could have availed himself of treatment programs. Moreover, the alternative sentence report further indicated that defendant had attended treatment programs in 2014 and in 2020, but apparently continued to abuse controlled substances. Because defendant had apparently done little to address his substance abuse despite the availability of treatment options, the trial court was not required to consider his substance abuse as a mitigating factor. (See Carmony, supra, 33 Cal.4th at pp. 378379; Williams, supra, 17 Cal.4th at p. 163; People v. Leavel (2012) 203 Cal.App.4th 823, 830.)
Fifth, defendant contends that the trial court did not give sufficient weight to his history of childhood trauma and defendant's purported mental health issues. We disagree. The trial court considered the alternative sentencing report that detailed defendant's history of trauma. It also discussed its consideration of "the culture of [defendant's] family and the difficulties with it." It commented that "[t]he history of [defendant] matter[ed] to [the court].... I[t] agree[d] there[ was] a lot of history, and [expressed] ... great empathy for difficulties growing up with family and what's happened in his life." The trial court did consider defendant's history and we cannot say that the trial court gave that consideration insufficient weight in light of the other considerations before it.
In view of the presumption against striking prior strike convictions, defendant's present and prior criminal convictions, and defendant's background, character, and prospects, the trial court's decision not to strike his prior strike conviction was not so irrational or arbitrary that no reasonable person could agree with it. We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
[*] Before Poochigian, Acting P. J., Smith, J. and DeSantos, J.