Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F0350
BLEASE , Acting P.J.
Defendant appeals from the judgment and sentence following entry of his guilty plea to one count of resisting arrest by exhibiting a deadly weapon (Pen. Code, § 417.8) and admission of a prior violent felony conviction. (§§ 667.5, subd. (c)(18), 1170.12.) The plea was made incident to a Harvey waiver and with the understanding that at the time of sentencing, defendant could move to strike the prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). At sentencing, the trial court denied defendant’s Romero motion and sentenced him to an aggregate prison term of eight years.
All further section references are to the Penal Code unless otherwise specified.
People v. Harvey (1979) 25 Cal.3d 754.
Defendant’s sole claim on appeal is that the trial court abused its discretion by denying his Romero motion. We find no error and shall affirm the judgment.
In view of defendant’s guilty plea, the underlying facts are taken from the Probation Officer’s Report. Because defendant entered a Harvey waiver, the facts, as stated, include the circumstances surrounding the incident admitted by defendant’s plea.
On January 14, 2006, defendant went to Bert & Ernie’s bar in Redding where he sprayed the owners with pepper spray after being asked to leave. Defendant then fled the bar in his vehicle. Redding police officers responded to the bar and issued a “be on the lookout” alert for defendant. About 30 minutes later, defendant was spotted at a Taco Bell restaurant and reported for possibly driving under the influence of alcohol.
Defendant left the Taco Bell restaurant on foot to a nearby residential neighborhood, and was later located by police officers who saw him lying on the ground of a Best Western Hotel. Initially, he refused to comply with the officers’ orders to stand up. When he finally did stand up, he took a fighting stance and taunted the officers by saying “Come on, let’s go.” He pulled a knife from his pocket and threw a wadded up piece of paper at one of the officers. When the officers attempted to approach defendant, he turned and jumped a nearby fence. Pursued by three officers, defendant continued to ignore their directives until the officers subdued him with their batons.
Upon searching defendant, the officers found a seven-inch knife with a three and one-half inch blade in a sheath around his neck. Three other knives were found on the ground where he was taken into custody. Inside his jacket was a 70-gram can of tear gas/pepper spray. A search of defendant’s hotel room disclosed a black “Stun Stick,” a crow bar, and a machete.
DISCUSSION
Defendant contends the trial court abused its discretion when it denied his Romero motion because he had only one strike and therefore he does not fall within the spirit of the three strikes law. He argues that his ongoing problem with alcohol, the willingness of a respected recovery program to admit him for treatment, and the unique situation of the victim of the prior conviction requesting that the court strike that conviction, all indicate that the interests of justice would best be served by granting his motion. Respondent contends the claim has no merit because there was no abuse of discretion. We agree with respondent.
The three strikes law requires that the trial court impose specified increased punishment on a defendant convicted of a felony who has suffered one or more prior serious or violent felonies. (§ 1170.12, subds. (a), (b) & (c).) For a defendant who has suffered one prior serious or violent felony conviction, the enhanced penalty is twice the term otherwise provided as punishment. (§ 1170.12, subd. (c)(1).) The purpose of the law is to provide increased punishment for recidivist offenders who, by reason of their criminal history for violent or serious felonies, have demonstrated that they are not rehabilitated nor deterred from further criminal activity as a result of their prior imprisonment. (People v. Davis (1997) 15 Cal.4th 1096, 1099; People v. Leng (1999) 71 Cal.App.4th 1, 14.)
Nevertheless, a trial court has discretion under section 1385, subdivision (a) to strike a prior strike conviction in furtherance of justice (Romero, supra, 13 Cal.4th at pp. 529-530) and its decision to grant or deny such a request is reviewed under the deferential abuse of discretion standard. (Id. at p. 531; People v. Carmony (2004) 33 Cal.4th 367, 374.)
Section 1385, subdivision (a) states: “The 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. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”
Under that standard, a defendant must demonstrate the trial court’s decision was “irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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.” (People v. Myers (1999) 69 Cal.App.4th 305, 309.)
The trial court’s decision to grant or deny a request to strike a prior conviction turns on whether the defendant falls outside the spirit of the statute so that he should be treated as though he had not suffered the prior conviction. (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court must make that determination 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. (Ibid.)
Here, the trial court explicitly and carefully considered the criteria stated in Williams before denying defendant’s motion. It first examined the nature and circumstances of the prior and current offenses, noting defendant suffered the prior conviction in 1991 for forcibly raping his mother, an offense the court characterized as “the most egregious forcible rape” and a very serious and violent offense. As for the current offense, the court noted it involved the threat of violence and the display of a knife to resist arrest. The court found these two offenses weighed against granting the motion. Next, the court examined defendant’s criminal record and concluded he falls clearly within the spirit of the law. As the record shows, defendant has suffered 11 convictions and three parole violations, which the court found shows an “ongoing continuous, almost nonstop series of criminal offenses interspersed with violations of parole and probation, and ongoing and consistent acts of violence, specifically against people that are close to him.”
Defendant’s criminal history includes the following convictions and parole violations: assault with a deadly weapon and battery in 1990; felony burglary in 1991; driving under the influence (DUI) in 1996; parole violation in 1996; disorderly conduct in 1998; DUI in 1999; parole violation in 1999; DUI in 2000; driving while privilege revoked in 2004; battery and unauthorized entry onto private property in 2005; battery in 2005; vandalism in 2005.
In light of his criminal record, defendant’s claim that he falls outside the spirit of the three strikes law is patently absurd. Indeed, even his trial counsel acknowledged that defendant is “an individual who . . . fall[s] clearly within the spirit of the Three Strikes Law, . . .” and that the legal system had unsuccessfully attempted to give him an opportunity to reform. Moreover, as the prosecutor noted and defendant did not dispute, defendant had previously been unwilling to address his substance abuse despite 15 years of court orders and probation and parole conditions. We find no abuse of discretion under these circumstances and deny defendant’s claim of error.
DISPOSITION
The judgment is affirmed.
We concur: RAYE , J., HULL , J.