Opinion
F070943
04-10-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS DURAN et al., Defendants and Appellants.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Duran. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Michael Giron. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DF011600A & DF011600B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Robert S. Tafoya, Judge. Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant Jesus Duran. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Michael Giron. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellants, Jesus Duran and Michael Giron, of possessing a sharpened instrument while confined in a penal institution. (Pen. Code, § 4502, subd. (a).) Although each appellant separately committed this crime, the two appellants were tried together.
All further statutory references are to the Penal Code
The trial court determined that the prior strike conviction and prior prison term enhancement alleged against Duran were true and that the prior strike conviction alleged against Giron was true. The trial court sentenced each appellant to the upper term and doubled it due to the strike prior. The court also added one year to Duran's sentence for the prior prison term.
Duran argues the trial court erred in denying his request to sever his trial from Giron's trial because there was no legitimate basis to try them together. Duran further contends the evidence was insufficient to prove the substance of his prior conviction. Both Duran and Giron assert the trial court used improper reasons to justify the upper term. Giron also argues the trial court erred when it denied his motion to dismiss his prior conviction in the interests of justice under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The trial court did not err as alleged by appellants. Accordingly, the judgments will be affirmed.
BACKGROUND
On October 12, 2013, Duran and Giron were state prison inmates. That day, prison officials began a routine two-day contraband search. As part of this search, approximately 150 inmates walked through standing metal detectors.
When Duran and Giron walked through the metal detector, it alerted for the presence of metal on each of them. A handheld metal detector indicated the presence of metal near each appellant's buttocks. The prison officials immediately placed appellants on contraband surveillance watch.
Contraband watch cells contain a mattress and a toilet. Each appellant was put in a separate cell after that cell had been thoroughly searched. The search included inspecting the mattress to be sure there were no rips and that nothing heavy or hard was inside. Appellants were under 24-hour surveillance and prison officials recorded their activities.
Each appellant was clothed in two jumpsuits, taped at the wrist and ankles. They also wore shackles at the waist and handcuffs. Nevertheless, it was still possible for appellants to touch their ankles.
On October 15, 2013, Giron asked to speak to one of the correctional officers. Giron told the officer he did not know why he was there because they did not have anything. At that time, appellants had been in the contraband watch cells for close to 72 hours.
Shortly thereafter, a correctional officer took appellants to the metal detector. Each appellant was clear of metal. The tape on the jumpsuits around each appellant's ankles was loose and had been broken.
When the correctional officers searched appellants' cells, they found slits in both mattresses and sharp metal objects inside. An approximately five and one-half inch long piece of metal sharpened to a point with a one and one-half inch cloth handle was inside each mattress. Cardboard and plastic gloves covered these weapons and they smelled of feces.
A jury found each appellant guilty of possessing a sharp instrument while in prison. (§ 4502, subd. (a).) Appellants waived their right to a jury on the prior conviction allegations. The court then found appellants' prior convictions and prison term to be true.
Both appellants filed Romero motions requesting the trial court to dismiss their prior strike convictions. The trial court denied these motions.
The court imposed the upper term of four years on Duran, doubled to eight years for the prior strike conviction, and added one year for the prior prison term for a total of nine years. The court sentenced Giron to the upper term of four years, doubled to eight years for the prior strike conviction, for a total of eight years.
DISCUSSION
1. The joint trial did not prejudice appellants.
On November 10, 2014, the day scheduled for trial, Giron's defense counsel asked the trial court to relieve him based on a conflict of interest. The court granted the motion, vacated the jury trial date, and appointed new counsel to represent Giron.
Duran's counsel stated that Duran was willing to trail the trial until the following Wednesday, but that if the trial were scheduled past that date, the defense would move to sever. Counsel offered to brief the matter at the court's request. Counsel then explained:
"But essentially, they're separate acts but essentially occurring at the same time. So there's no real connection between Mr. Duran and Mr. Giron except for the fact that they were in contraband cells next to each other. So there's been no evidence that they—that there's been any collusion between the two of them. Separate trials would not prejudice the People's case. So in that respect, I would ask that the matters be severed."The court stated it was not inclined to rule on a severance motion orally and asked counsel to file the appropriate pleadings.
The court then asked what the prosecutor's position was, to which the prosecutor replied:
"I'm making a motion under [section] 1050.1 because these two defendants have been jointly filed, that they—that there's good cause that they stay together. And really that's all that [section] 1050.1 requires where they are jointly filed together on a motion of the prosecutor that shall constitute good cause to keep them together unless there's a showing that no amount of reasonable time—that there's no amount of reasonable time
to where they could be—both be tried together. And I don't think we have that here.
"The evidence at the preliminary hearing did indicate that these two—certainly that it's all the same witnesses for both acts. In fact, according to our initial discussions on discovery, there's some evidence that suggests that we can't separate the witnesses. In other words, there's—based on the logbooks the 19 or 20 witnesses that the defense subpoenaed, there's no—at this point, no way to separate which one is accounted for by which defendant."
The court responded that it was not going to rule on the severance motion at that time and that if Duran's counsel "believes he has a meritorious motion, then he can file the motion." The court then set a new trial date and stated that "at this particular juncture" it was not going to sever the defendants based on section 1050.1.
Under section 1050.1, when the information jointly charges two defendants and the trial court continues the trial as to one of the defendants for good cause, the continuance of the trial as to that defendant constitutes good cause to continue the trial as to the other defendant in order to permit the defendants to be tried jointly. (People v. Sutton (2010) 48 Cal.4th 533, 558.) Since Duran and Giron were jointly charged and good cause supported continuing the trial as to Giron, section 1050.1 provided good cause to continue the trial as to Duran as well.
Nevertheless, Duran argues the trial court should have granted his motion to sever the case because, although section 1098 embodies a preference for joint trials, he and Giron committed separate offenses. Citing People v. Ortiz (1978) 22 Cal.3d 38, Duran asserts the trial court erred in trying him together with Giron because they were not charged with a single crime. (Id. at p. 43.) Instead, they were charged with independent crimes that happened to violate the same statute. (Id. at p. 45.)
Section 1098 provides, in part: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials."
However, the court did not rule on Duran's motion. Rather, the court directed Duran to file a severance motion if he desired. As noted above, the only ruling was on the prosecution's request that the case not be severed due to the need to continue the trial as to Giron.
When Duran failed to file a severance motion as invited to by the trial court, he arguably abandoned his severance claim. (Cf. People v. Vera (2004) 122 Cal.App.4th 970, 981-982.) However, even if we assume, without deciding, that the trial court erred in not severing the case, Duran has not shown he was prejudiced. An erroneous denial of a severance motion requires reversal only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. (People v. Homick (2012) 55 Cal.4th 816, 848.)
In his defense, Duran elicited testimony from the correctional officers who were watching the contraband cells. These officers stated that they did not observe any unusual activities in either cell over the three days. Based on this testimony, Duran claims the evidence against him was far from overwhelming. Duran further contends the joint trial made it less likely that the jury would accept his argument that it was impossible to remove the weapon and hide it while under surveillance. Therefore, Duran argues, he was prejudiced by being tried with Giron.
Contrary to Duran's position, the evidence against him was very strong. When Duran walked through the metal detector, it alerted for metal and the handheld detector narrowed the location to Duran's buttocks. Prison officials thoroughly inspected Duran's contraband cell, including the mattress, before Duran entered and no other inmates had access to the cell. However, three days later, the metal detector no longer alerted for the presence of metal on Duran and prison officials found a sharpened piece of metal with a cloth handle, wrapped in cardboard and plastic gloves and smelling of feces, inside the mattress in Duran's cell. Under these circumstances, there is "no reasonable conclusion compatible with innocence." (People v. Shelton (1957) 151 Cal.App.2d 587, 589.) The only rational explanation is that Duran secreted the weapon in his rectum, expelled it while in the contraband watch cell, and then hid it in the mattress. Thus, a separate trial would not have resulted in a more favorable result.
Duran also argues he was prejudiced because some of the prosecution witnesses had difficulty distinguishing between the two defendants, thereby undermining his right to an individualized determination of guilt. Duran has overstated this identification issue. Only one correctional officer singled out by Duran had such difficulty at trial. That officer, who assisted in inspecting the contraband cells before appellants entered and helped escort appellants to those cells, initially misidentified Duran. However, that officer correctly identified appellants after his recollection had been refreshed with copies of the prisoner identification cards he used when he prepared the cell inspection forms.
Further, the court instructed the jury that it "must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately." We must presume the jury understood and followed that instruction. (People v. Wilson (2008) 44 Cal.4th 758, 803 (Wilson).) Accordingly, Duran has not shown he was prejudiced.
Duran also claims prejudice from Giron's statement to the guard that he did not know why he was there because they did not have anything. Duran asserts the jury could have used this statement against him. However, that statement was not a confession. It did not incriminate either appellant. The only effect the statement had was to prompt the correctional officers to have both appellants walk through the metal detector again. That walk was going to happen eventually anyway with the same result. Thus, Duran has not shown prejudice.
Finally, Duran points to the prosecutor's suggestion in closing argument that the inmates may have been able to split the attention of an occasional single officer by staggering their bowel movements. Thus, one appellant could have "run interference" while the other was "going through one of the more difficult parts" of the process of expelling the weapon. According to Duran, the prosecutor was using the fact that there were two defendants to bolster the People's case. It is doubtful that this suggestion in any way prejudiced Duran. Moreover, the court instructed the jury that the attorneys' remarks were not evidence. Again, we must presume the jury understood and followed that instruction. (Wilson, supra, 44 Cal.4th at p. 803.)
In sum, it is not reasonably probable that Duran would have obtained a more favorable result at a separate trial. 2. The evidence is sufficient to prove Duran's 2010 prior conviction.
The information alleged Duran had a 2010 conviction for robbery (§ 211) that qualified as a strike (§§ 667, subds. (a)-(j), 1170.12, subds. (a)-(e)). Duran waived his right to a jury trial on this prior conviction.
The prosecution had the burden to prove Duran's alleged strike prior beyond a reasonable doubt. (People v. Self (2012) 204 Cal.App.4th 1054, 1059.) To do so, the prosecution offered into evidence Duran's California Department of Corrections identification document and a certified printout from the Department of Justice computer system, known as the California Law Enforcement Telecommunications System (CLETS). (People v. Martinez (2000) 22 Cal.4th 106, 113 (Martinez).) This printout reported the criminal history information for Duran, including "211 PC-ROBBERY[.] DISPO: CONVICTED[.] CONV STATUS: FELONY[.]" Based on this evidence, the trial court found that Duran's prior conviction for robbery was true and that it was a strike within the meaning of section 667, subdivisions (c) through (j).
Duran argues the evidence is insufficient to prove his prior felony conviction qualified as a strike because a CLETS printout is not part of the record of conviction.
As proof of whether a prior conviction is a serious or violent felony within the meaning of the "Three Strikes" law, the trier of fact may look to the entire record of the conviction "to establish the substance of the prior conviction." (Martinez, supra, 22 Cal.4th at p. 117.) The record of conviction includes "those record documents reliably reflecting the facts of the offense for which the defendant was convicted." (People v. Reed (1996) 13 Cal.4th 217, 223.) However, evidence outside "the record of conviction," such as a CLETS printout, is admissible "to establish matters other than the nature and circumstances of the conduct underlying a prior conviction." (Martinez, supra, 22 Cal.4th at p. 116.)
A prior conviction that is either a violent felony as defined by section 667.5, subdivision (c), or a serious felony as defined by section 1192.7, subdivision (c), is a strike. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Whether a prior conviction is a strike is based on whether it qualified as a serious or violent felony when it was committed. (People v. James (2001) 91 Cal.App.4th 1147, 1150.) A "robbery or bank robbery" is a serious felony under section 1192.7, subdivision (c)(19).
In People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero), the California Supreme Court clarified what evidence could be used to prove that a prior conviction was a "serious felony." While the earlier case of People v. Alfaro (1986) 42 Cal.3d 627 (Alfaro) limited such proof to the prior judgment of conviction, the Guerrero court concluded "in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction." (Guerrero, supra, at p. 345.) The court explained: "Such a rule is both fair and reasonable. To allow the trier of fact to look to the entire record of the conviction is certainly reasonable: it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for 'burglary of a residence'—a term that refers to conduct, not a specific crime. To allow the trier to look to the record of the conviction—but no further—is also fair: it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial." (Id. at p. 355.)
In Martinez, the Supreme Court limited the Guerrero holding. The court reasoned: "Although Guerrero contains language arguably suggesting its evidentiary limitations apply to proof of all issues related to 'the truth of a prior-conviction allegation' [citation], a close reading of the decision demonstrates its scope is not so sweeping. As our discussion shows, the only question at issue in Guerrero—and in Alfaro, ... was the permissible scope of proof to establish the substance of a prior conviction, i.e., the nature and circumstances of the underlying conduct. Neither case considered matters of proof relating to other aspects of a prior conviction, such as the identity of the defendant or service of a prior prison term." (Martinez, supra, 22 Cal.4th at pp. 117-118.)
Here, the prosecution used the CLETS record only to prove that Duran had suffered a prior felony conviction for robbery. Contrary to Duran's position, the issue is not the substance of the conviction but, rather, is the fact that Duran was convicted of that offense. The fact of the conviction is all that is required to prove the prior felony conviction qualified as a strike because all robberies are serious felonies for purposes of the Three Strikes law. (§§ 667, subd. (a)(4), 1192.7, subd. (c)(19).) Therefore, the evidence was sufficient to prove that Duran's 2010 conviction for robbery qualified as a strike.
Duran relies on People v. Scott (2000) 85 Cal.App.4th 905 (Scott) to support his claim that the evidence was insufficient to prove his prior conviction qualified as a strike. There, the court found the evidence was insufficient to prove a prior robbery conviction was true when the evidence presented was not part of the record of conviction. (Id. at pp. 913-914.) However, in Scott, the evidence presented was not a CLETS printout but, rather, was a letter from the California Youth Authority (CYA) that the prosecutor offered into evidence under section 969b as a prison record. This letter stated that the CYA could not comply with the request for information to establish a prior conviction for the defendant. The CYA's records merely indicated that the defendant "was committed to the [CYA]" for robbery and was "discharged from the [CYA]" approximately four years later. (Scott, supra, 85 Cal.App.4th at p. 911, fn. 5.) Thus, the prosecution did not offer a record of the prior conviction into evidence. The CYA was unable to comply with the request for such a record. Accordingly, this case is distinguishable and therefore does not provide support for Duran's position. 3. The trial court did not abuse its discretion in imposing the upper terms.
The trial court imposed the upper term on both Duran and Giron. Appellants contend the trial court used improper reasons to justify imposing this term.
a. Duran's sentencing.
Duran's probation report concluded the upper term was justified. The report found that, in mitigation, Duran's prior performance on state parole was satisfactory. However, the report listed two circumstances in aggravation: (1) Duran's prior convictions as an adult are numerous; and (2) Duran has engaged in violent conduct indicating a serious danger to society as evidenced by his prior convictions as well as the present offense.
Probation did not interview Duran before preparing the report. After Duran's counsel pointed this out to the trial court, the court requested Duran make a statement. The following exchange then took place:
"THE COURT: Mr. Duran, what do you want to say in defense of your position?
"THE DEFENDANT DURAN: Your Honor, I feel like those nine years that they're trying to give me is way—way too much. Yes, I got found guilty and I'm going to get some time no matter what, depends—you know, no matter what. Nine years, it's like I think it's overboard, you know?
"THE COURT: No, I don't. Why is it too much?
"THE DEFENDANT DURAN: Your Honor, the reason why—I fought my case for a reason.
"[¶] ... [¶]
" ... I fought it for a reason because I know what really happened and whatever happened, happened. I still lost, but I didn't—I didn't come this far just because I knew that I was going to get this time....
"I just feel it's too much ....
"[¶] ... [¶]
"And it's not even like I used violence or nothing. It's not a violent case at all. It's just in—a possession of a manufactured weapon....
"THE COURT: Now I don't understand your comment where you said well, I know what happened—what happened, happened[.]
"[¶] ... [¶]
"What do you mean? What are you saying?
"[¶] ... [¶]
"THE DEFENDANT DURAN: Point is I fought it and then—for a reason I knew—I thought I was going to win pretty much and I lost.... [I]t's not like I committed a very violent crime or anything. It's not like I used force, nothing. It's just possession of a manufactured weapon. It's not—I didn't use no violence, nothing."
The court stated it was not "persuaded by what [Duran] just articulated. I was listening, hoping I would hear something else, but it didn't happen." The court then imposed the upper term of four years, doubled to eight years for the prior strike, plus one year for the prior prison term.
b. Giron's sentencing.
Giron's probation report concluded the upper term was justified. The report found no circumstances in mitigation. In aggravation, the court found: (1) Giron's prior convictions as an adult are numerous; and (2) Giron's prior performance on misdemeanor and felony probation was unsatisfactory in that he reoffended.
Probation also did not interview Giron. As with Duran, the court gave Giron an opportunity to make a statement. Giron stated:
" ... I know I made a lot of poor choices in my life, attempted robbery right there was no weapons involved in that besides the period that I came back for receiving stolen property, two and a half. I'm trying to get a response on that for Prop 47, see a response to turn that into a misdemeanor. And yeah, I made a poor choice to take this to trial, right....
"[¶] ... [¶]
"I was going to go to trial because I was supposed to be home already. That's the only reason why I took it. And I don't know what happened whatever during the trial[.]
"[¶] ... [¶]
" ... Yeah, I messed up. I should have took the deal in the first place, but I didn't do that[.]"
The following exchange then took place between Giron's counsel and the court:
"[COUNSEL]: "... Mr. Giron has expressed his contrition and he has acknowledged the fact that he has made poor choices....
" ... And given the fact that he has expressed contrition to the Court....
"THE COURT: When did he do that?
"[¶] ... [¶]
"I just gave him a chance. I said, hey give me your thoughts. What happened? This is what I was listening for, you know what, judge, I possessed the weapon. It was wrong, but I possessed the weapon. Neither one of them said that. They continue to hedge. They continue to fudge. Well, I don't know what happened, but what it is, is what it is, but—come on, be honest. They're not willing to do that.
"And that causes me concern because it reflects a particular mindset that suggests to me that this type of behavior is going to continue.
"If Mr. Giron had said you know what, judge, I possessed the weapon. I'm sorry. It was a very poor choice on my part. He would have saved himself a year. I would have given him midterm. Same thing with Mr. Duran, but they didn't.
"And [Duran's counsel] brought it up, hey, these guys didn't have a chance to make a statement. I said, okay, make your statement. I want to hear it. It wasn't forthcoming and that's the problem.The court then imposed the upper term of four years, doubled to eight years for the prior strike, on Giron.
"I have a duty under the California Rule of Court to protect the public and to set an example. So when these guys go back to state prison and they ask what happened? Hey, you want to engage in this type of behavior, there will be consequences. So think twice about it. So that's the problem."
c. The trial court properly considered appellants' failure to accept responsibility and lack of remorse as a sentencing factor.
Both Duran and Giron argue the trial court used an improper factor in aggravation to impose the upper term when it relied on each appellant's failure to either admit to having a weapon or apologize. In other words, appellants failed to accept responsibility for their misconduct and lacked remorse.
In sentencing a defendant, the choice of the appropriate term rests in the sound discretion of the trial court. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) However, even with the broad discretion afforded the court, its sentencing decision will be subject to review for abuse of discretion. Thus, the trial court must exercise its discretion in a manner that is not arbitrary and capricious. A trial court will abuse its discretion if it relies on circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).)
California Rules of Court, rule 4.421 sets forth circumstances in aggravation. However, in addition to those enumerated aggravating circumstances, the court may base its sentencing decision on "additional criteria reasonably related to the decision being made." (Cal. Rules of Court, rule 4.408(a).)
A single aggravating factor is sufficient to justify imposing the upper term and the court is free to use any aggravating factor it deems significant. (People v. Weber (2013) 217 Cal.App.4th 1041, 1063-1064.) The court's discretion to identify such aggravating factors is "limited only by the requirement that they be 'reasonably related to the decision being made.'" (Sandoval, supra, 41 Cal.4th at p. 848.)
"'Lack of remorse may be used as a factor to aggravate under California Rules of Court, rule 408 unless the defendant has denied guilt and the evidence of guilt is conflicting.'" (People v. Leung (1992) 5 Cal.App.4th 482, 507.)
Here, neither appellant expressed remorse. Rather, Duran explained that he thought he would win at trial and then tried to excuse his conduct by diminishing the seriousness of the offense stating that "[I]t's not like I committed a very violent crime or anything." Similarly, Giron merely expressed regret that he took the case to trial rather than taking "the deal." Thus, the only remorse expressed by either appellant was that they were convicted following a trial. Additionally, neither accepted responsibility for their actions.
As discussed above, although he denied guilt, the evidence against Duran was overwhelming. The essentially identical facts of Giron's offense are also not compatible with innocence. Accordingly, the trial court properly relied on appellants' lack of remorse and refusal to take responsibility for their conduct as aggravating factors. The trial court relied on relevant criteria reasonably related to the sentencing decision and thus did not abuse its discretion. 4. The trial court did not abuse its discretion in denying Giron's Romero motion.
In November 2012, Giron pleaded guilty to one count of attempted robbery (§§ 664/211). Although initially granted probation on condition he spend 349 days in county jail, Giron violated the terms of his probation by being convicted of receiving stolen property in July 2013 (§ 496, subd. (a)). The trial court then sentenced Giron to two years in state prison.
The information alleged that Giron suffered this prior felony conviction in 2012 and that it qualified as a serious felony within the meaning of the Three Strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). The trial court found this allegation to be true. Following his conviction, Giron moved to dismiss this prior strike conviction in furtherance of justice pursuant to Romero, supra, 13 Cal.4th at p. 531.
The trial court denied Giron's Romero motion. The court noted Giron was granted probation on the attempted robbery conviction but did not take advantage of his chance to change. Rather, he was back in custody for possession of stolen property within a relatively short period. The court explained: "[I]t's a pattern of poor decisions that causes this Court concern. I have a duty to protect the public. I have a duty to hold the defendant accountable for decisions he makes. So I'm going to deny the motion to strike the prior."
Giron contends the trial court abused its discretion when it denied his motion. Giron argues that his present offense was relatively minor, "in that it simply involved the possession of a sharp instrument in prison." Giron further notes his prior felony conviction for attempted robbery was committed when he was 22 years old. Giron characterizes his other misdemeanor convictions from 2008 as being fairly minor (petty theft and driving under the influence) and points out that the 2013 receiving stolen property conviction was later reduced to a misdemeanor. Finally, Giron asserts he is not one of the violent repeat offenders "on whom the revolving prison door needed to be closed" as he was in prison for the first time in his life.
Giron's request that we take judicial notice of the superior court "minutes" reflecting that his felony conviction for receiving stolen property was later reduced to a misdemeanor is denied as irrelevant. Even assuming the "minutes" qualify as an official court document, the strike at issue is the attempted robbery conviction, not the receiving stolen property conviction. --------
In Romero, the California Supreme Court "explained that the 'power to dismiss an action,' ... 'in furtherance of justice' pursuant to Penal Code section 1385[, subdivision] (a), 'includes the lesser power to strike ... allegations' or vacate findings 'relevant to sentencing, such as the allegation' or finding 'that a defendant has prior felony convictions.'" (People v. Williams (1998) 17 Cal.4th 148, 151 (Williams).) In ruling on whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding, the court must consider the nature and circumstances of the present felonies and prior serious and/or violent felony convictions. The court further looks at the particulars of the defendant's background, character, and prospects. The court then determines whether 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. (Id. at p. 161.)
We review an order on a Romero motion for an abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.) Two fundamental precepts guide this review. First, the party attacking the sentence has the burden to clearly show that the sentencing decision was irrational or arbitrary. Without such a showing, we presume the trial court acted to achieve the legitimate sentencing objectives and will not set aside its discretionary determination to impose a particular sentence on review. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).) Second, we will not reverse a decision merely because reasonable people might disagree. (Id. at p. 377.) "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." (Ibid.)
The Three Strikes law creates a strong presumption that any sentence that conforms to the law's sentencing norms is both rational and proper. Accordingly, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. Such circumstances include where the court was not aware of its discretion to dismiss or where the court considered impermissible factors in declining to dismiss. (Carmony, supra, 33 Cal.4th at p. 378.) Otherwise, if the trial court balanced the relevant facts and reached an impartial decision, we will affirm its ruling, "'even if we might have ruled differently in the first instance.'" (Ibid.)
The trial court's refusal to strike Giron's prior strike conviction was not "irrational or arbitrary." As noted by the trial court, Giron has engaged in "a pattern of poor decisions." The record supports the trial court's conclusion.
In May 2008, Giron was convicted of petty theft, a misdemeanor. Approximately one month after being placed on probation, Giron violated that probation by committing the crime of driving under the influence. Giron was given probation in December 2012 on the attempted robbery conviction, the strike offense. However, Giron violated that probation within seven months by receiving stolen property and was sentenced to state prison. Giron committed the current offense approximately two and one-half months later. Considering this pattern of continuing criminal behavior, it was reasonable for the trial court to be concerned about protecting the public and to hold Giron accountable for his decisions by denying his Romero motion.
Giron's attempts to minimize his criminal record to support a claim that he falls outside the spirit and purpose of the Three Strikes law lack merit.
Giron first claims his offense was relatively minor and that he simply had this sharp instrument for protection. However, the purpose of section 4502, subdivision (a), is to protect inmates and prison officials against assaults by armed prisoners. (People v. Steely (1968) 266 Cal.App.2d 591, 595.) This offense was "relatively minor" only because the prison officials detected the approximately four-inch blade before such future violence could occur. Further, self-defense is not a valid claim for a weapon possessed for protection from an anticipated, future attack. (People v. Saavedra (2007) 156 Cal.App.4th 561, 568.) There was no evidence of an imminent attack. Further, due to its location, Giron would not have been able to access the weapon quickly enough to defend himself in case of such imminent attack.
Giron points out that he was only 22 years old when he committed the attempted robbery. However, Giron was only 24 years old when he committed the current offense and committed the offense of receiving stolen property in between. Thus, Giron had no significant gaps between offenses.
Giron additionally argues that he was in prison for the first time in his life. However, it is the recidivism in the commission of multiple felonies, not the serving of prior prison terms, that justifies the imposition of longer sentences for subsequent offenses. (People v. Mantanez (2002) 98 Cal.App.4th 354, 366.) "The purpose of [Penal Code] section 667 is to punish repeat offenders regardless of whether they were imprisoned for their previous felony." (People v. Medina (1988) 206 Cal.App.3d 986, 990.) Thus, the trial court did not abuse its discretion in refusing to strike the prior attempted robbery felony conviction despite Giron not having served any prison time for that offense.
In sum, the trial court's decision to deny Giron's Romero motion was not irrational or arbitrary. Rather, Giron's criminal history and failure to "learn his lesson" following the imposition of formal sanctions stemming from his criminal conduct, support finding that Giron falls squarely within the Three Strikes law. (Williams, supra, 17 Cal.4th at p. 163.) Accordingly, the trial court did not abuse its discretion when it denied Giron's motion to strike his prior felony conviction.
DISPOSITION
The judgments are affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
MEEHAN, J.