Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 08CM2420 of Kings County. Louis F. Bissig, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J. and Kane, J.
When an officer responded to the scene of a reported disturbance outside a mini-mart, appellant Mario Carranza fled, and in so doing fell down and dropped a.22 caliber firearm. Appellant was charged with possession of a firearm by a felon, and the criminal complaint also alleged that appellant had been previously convicted of a strike offense under the “Three Strikes” law. Appellant pled guilty and admitted to the prior strike allegation. He then brought a Romero motion, requesting that the trial court dismiss the prior strike conviction in the interests of justice. The trial court denied the motion and appellant was sentenced to a term of four years (the two year mid-term sentence doubled under the Three Strikes law). Appellant appealed on the ground that the trial court abused its discretion in failing to grant his Romero motion. We will affirm.
The Three Strikes law refers to the Penal Code provisions set forth in sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTS AND PROCEDURAL HISTORY
On August 21, 2008, Hanford Police Officer Stingley was dispatched to a gas station/mini-mart located in Kings County to investigate a disturbance involving two Hispanic males yelling at females standing on the sidewalk outside the store. Upon arrival, Officer Stingley observed two male subjects matching the description provided in the dispatch. One of the two male subjects was appellant. When Officer Stingley pulled alongside in his patrol car to question them, appellant attempted to run away.
Since appellant entered a plea bargain, our summary of the facts relating to appellant’s offense is based on the probation report and the parties’ statements of facts.
As appellant was running away, he fell down and Officer Stingley observed a grey object fall from his pocket. Appellant got up and continued to run away. Officer Stingley pursued appellant and “deployed his … Taser.” Appellant was stopped and Officer Stingley arrested him. Officer Stingley went back and searched the area where appellant fell and located a Jennings.22 caliber firearm and a magazine for that firearm containing three rounds of ammunition.
Appellant waived his Miranda ] rights and told Officer Stingley that he had run from the scene because he believed that he had an outstanding warrant for a DUI. Appellant said he had been carrying the firearm solely for protection and admitted he was not the registered owner. When asked if he belonged to a gang, appellant stated he was a “‘northerner.’” Officer Stingely observed that appellant’s eyes were red and watery, his speech was slow and slurred, and he smelled strongly of alcohol.
Miranda v. Arizona (1966) 384 U.S. 436.
On September 18, 2008, the Kings County District Attorney filed an amended criminal complaint charging appellant with the following counts: possession of a firearm by a felon in a public place in violation of Penal Code section 12021, subdivision (a)(1) (count 1); possession of a loaded firearm by a felon in a public place in violation of section 12031, subdivisions (a)(1) and (a)(2)(A) (count 2); and possession of a loaded, unregistered firearm in violation of section 12031, subdivision (a)(1) (count 3). The amended criminal complaint further alleged that appellant had one prior “strike” conviction within the meaning of the Three Strikes law.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On November 6, 2008, pursuant to a plea bargain, appellant pled guilty to count 1 and admitted the prior strike conviction, whereupon the trial court dismissed counts 2 and 3. Under the terms of the plea agreement, appellant understood he would receive a sentence of no more than four years in state prison based on the midterm sentence for count 1 of two years, doubled under the Three Strikes law.
Prior to sentencing, appellant filed a Romero motion to strike the prior “strike” felony conviction in the interest of justice. The prior felony conviction was for grand theft with a gang enhancement (§ 487, subd. (c); 186.22, subd. (b)(1)). In his motion, appellant argued that his current offense was merely a “status offense” since the conduct would not be felonious but for the fact that he had a prior felony conviction; his one “‘strike’” offense had been committed over eight years earlier when he was only 18 years old; he had no felony conduct since the year 2000; he had never been to prison and he had successfully completed probation in the prior felony case; and the only reason he possessed the firearm was to protect himself and his friend after an earlier attack. It was also pointed out that appellant was married, had a two year old daughter and was remorseful for his conduct.
The trial court denied appellant’s motion and sentenced appellant to four years in state prison based on the two-year midterm doubled under the Three Strikes law. Appellant’s timely appeal followed.
DISCUSSION
Appellant argues the trial court abused its discretion in refusing to strike or dismiss his prior “strike” offense because, under the circumstances, appellant was manifestly outside the spirit of the Three Strikes law. We find no abuse of discretion.
In Romero, supra, 13 Cal.4th 497 at page 504, the California Supreme Court explained that under section 1385, subdivision (a), a trial court may, in the furtherance of justice, strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony. The court’s exercise of discretion in the furtherance of justice “‘“requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People.…”’” (Id. at p. 530.)
In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court articulated the standard for striking prior convictions under the Three Strikes law, as follows:
“We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (Id. at p. 161, italics added.)
A trial court’s decision whether or not to strike a prior conviction for purposes of the Three Strikes law is subject to review under the deferential abuse of discretion standard. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) Under this standard, the ruling will be upheld unless it “‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams, supra, 17 Cal.4th at p. 162.) As explained in People v. Carmony (2004) 33 Cal.4th 367 at pages 376-377:
“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.”’ (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez), quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) 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.’”’ (Alvarez, at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.) 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.”
Here, the trial court carefully considered whether appellant fell outside the spirit of the Three Strikes law, and concluded on balance that “this does not appear to be an appropriate case for invoking that unusual relief.” The trial court explained that the motion was denied because of appellant’s “extensive history of low grade criminality and probation violations and failures to appear,” and the fact that appellant was on two separate grants of probation at the time of the most recent felony offense. In light of these indications of “persistent criminality” that could not be ignored, the trial court denied the motion and followed the recommendation of the probation report by imposing the midterm of two years.
Despite the rationale offered by the trial court, appellant contends the trial court abused its discretion because “dismissal of appellant’s strike was the only reasonable determination that could have been made, in light of the nature of appellant’s offense, the nature of the ‘strike’ offense, and appellant’s background, character, and prospects.” We do not agree that dismissal of the strike was the only reasonable determination.
In regard to the current offense, appellant argues he only had the gun in his possession to protect himself and a friend. The trial court was not required to accept appellant’s version of events, and in any event the possession of a handgun by an ex-felon is considered by the Legislature to be a serious offense. (See People v. Cooper (1996) 43 Cal.App.4th 815, 824.) Furthermore, when considered in light of appellant’s past gang involvement, and that he told Officer Stingley at the time of his arrest that he was a “‘northerner’” when asked whether he was in a gang, it would be difficult to minimize the seriousness of the current firearm offense.
Further, although we agree that appellant’s criminal history showed only relatively minor and nonviolent criminal conduct between the prior strike and the current offense (e.g., driving with a suspended license, driving while intoxicated, reckless driving and a failure to appear in court), we do not believe the trial court acted arbitrarily or outside the bounds of reason when it viewed these matters as indicative of a general pattern of low grade criminality. We might add that appellant’s current conviction would seem to confirm that he still believed he could disregard the law.
Of course, as appellant correctly points out, other facts and circumstances weighed in his favor, including the remoteness of the prior strike, appellant’s stable marriage and young daughter, his employment prospects and his remorsefulness regarding his conduct. Although these might be grounds for a reasonable difference of opinion on the merits of appellant’s motion, they fail to demonstrate that the trial court abused its discretion. It is not enough to show that reasonable minds might disagree about whether to strike the prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 378.) We conclude that the trial court acted within the bounds of its discretion when it denied appellant’s motion.
DISPOSITION
The judgment is affirmed.