Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F09907159. Edward Sarkisian, Jr., Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., and Kane, J.
STATEMENT OF THE CASE
At the conclusion of a jury trial on May 28, 2010, appellant, Eric Linelle Broughton, was convicted of second degree robbery (Pen. Code, § 211, count one). In a bifurcated proceeding, Broughton admitted allegations that he committed a prior serious felony under the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). He also admitted a prior serious felony enhancement (§ 667, subd. (a)(1)) and two prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise indicated, all statutory references are to the Penal Code.
At the sentencing hearing on July 22, 2010, the trial court denied Broughton’s request to strike the prior serious felony allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced Broughton to an upper prison term of five years on count one, doubled pursuant to the three strikes law to 10 years. The court sentenced Broughton to consecutive prison terms of five years for the prior serious felony enhancement and one year for each of the prior prison term enhancements for a total sentence of 17 years.
Broughton argues the trial court abused its sentencing discretion in failing to strike one or more of his prior serious felony convictions pursuant to Romero.
FACTS
In the evening of December 27, 2009, George Medd, who was then 76 years old, answered a knock on his door. Broughton told Medd his car had quit and asked to use Medd’s telephone. Medd offered to make the call for Broughton. The number Broughton gave Medd was busy. Broughton told Medd his wife and child were in the car and asked for some gasoline. Because it was winter and cold outside, Medd felt sorry for Broughton and told Broughton to meet him around the back at the garage.
After obtaining some gasoline in a small container, Medd walked down the street. There was another man with Broughton. Broughton pulled out a handgun and demanded Medd’s wallet. Medd gave Broughton his wallet which contained between $150 and $160. Broughton and the accomplice ran across the street to an apartment complex. Police and a tracking dog later found Broughton in an apartment complex across the street from the robbery. A gun recovered by the police from Broughton was an air-soft gun, not a true firearm.
Broughton had misdemeanor convictions in 1996 for battery and disobeying a court order. He had a felony conviction in 1996 for possession of a weapon. In 1998, Broughton was convicted of misdemeanor trespassing and feloniously having unlawful intercourse with a minor. In 1999, Broughton had a misdemeanor conviction for being under the influence of a controlled substance and a felony robbery conviction. Between 2001 and 2006, Broughton had a misdemeanor conviction for vehicle theft and a felony conviction for possession of a controlled substance. During this same time period, Broughton had six violations of parole. In 2007, Broughton was convicted of misdemeanor possession of narcotics paraphernalia. Between 2007 and 2009, Broughton had three parole violations.
ROMERO DISCRETION
Broughton contends the trial court abused its discretion in failing to strike his prior serious felony conviction pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. We disagree and will affirm the judgment.
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) The appellant bears the burden of establishing that the trial court’s decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (Ibid.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
Defense counsel made an oral motion pursuant to Romero at the sentencing hearing and argued the court should strike the prior serious felony conviction. The trial court was well aware of its discretion to strike the prior serious felony conviction pursuant to Romero and under the guidelines set forth in Carmony, but declined to do so, noting appellant’s long criminal history and his numerous violations of parole.
Broughton had three felony convictions prior to the conviction in the instant action. He had several misdemeanor convictions and numerous violations of parole. Although most of appellant’s convictions were related to drugs and alcohol, he had prior felony convictions for robbery and possession of a weapon.
Broughton is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. We decline his invitation to do so. “Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (Myers, supra, 69 Cal.App.4th at p. 310, quoted with approval in Carmony, supra, 33 Cal.4th at p. 378.)
Broughton has a long criminal history and several parole violations. The record in this case affirmatively shows that the court understood its discretionary authority and it weighed all of the competing facts to reach a reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one or more of the prior serious felony convictions. In view of these facts and circumstances, appellant has failed to show abuse of discretion. (See Carmony, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
DISPOSITION
The judgment is affirmed.