Opinion
B295328
04-09-2020
THE PEOPLE, Plaintiff and Respondent, v. TROY EDWARDS, Defendant and Appellant.
Miriam K. Billington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran and Shezad H. Thakor, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA470207) APPEAL from an order of the Superior Court of Los Angeles County, Douglas Sortino, Judge. Affirmed as modified. Miriam K. Billington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
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Troy Edwards appeals from his conviction for a felony hit and run and misdemeanor driving with a suspended license. He argues that the trial court erred in declining to dismiss his prior strike conviction. We conclude the trial court did not abuse its discretion. Appellant also contends that the one-year prior prison enhancement should be stricken in light of Senate Bill No. 136. We order the enhancement stricken and affirm as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On August 3, 2018, appellant was driving a car in Hollywood. His license had been suspended several years prior for driving under the influence. While driving through an intersection, he collided with a motorcycle. The motorcycle rider was thrown to the ground; his leg appeared severed. Appellant exited the car and started yelling at the victim. A bystander then told appellant not to leave the scene, but appellant drove off. Appellant was later arrested at his home. The information alleged a 1984 conviction of first degree burglary (Pen. Code, § 459) as a strike (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). Another prior conviction was alleged as a one-year prison enhancement. (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code. --------
At trial, appellant testified that he intended to call 911 at the scene of the accident, but a bystander informed him that the authorities had already been called. A bystander testified that he told appellant not to leave the scene, and appellant said he was going to park his car up the road. Appellant's passenger exited the car, and appellant drove off. Appellant testified he left the scene to go to the hospital because he was experiencing pain in his neck and back. However, he acknowledged that he, in fact, drove home from the scene of the accident. He was eating dinner at home when the officers arrived to arrest him.
The jury convicted appellant on both counts. The trial court sentenced him to the upper term of four years on count 1 doubled to eight years for the strike plus one year for the prior prison term enhancement. Appellant was also sentenced to a consecutive six months in jail on count 2, and consecutive terms of eight months each in a separate probation violation case. He timely appealed.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Declining to Dismiss Appellant's Prior Strike
a. The Law
In furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (People v. Superior Court (Romero) 13 Cal.4th 497, 529-530 (Romero); § 1385, subd. (a).) We review a court's ruling on a Romero motion for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375, 378 (Carmony).)
"It is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations." (Carmony, supra, 33 Cal.4th at p. 378.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Ibid.) Only extraordinary circumstances justify finding that a career criminal is outside the Three Strikes law. (Ibid.)
When considering whether to strike prior conviction allegations, the trial court 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." (People v. Williams (1998) 17 Cal.4th 148, 161.) The overall sentence to be imposed "is also a relevant consideration . . . [,] in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (People v. Garcia (1999) 20 Cal.4th 490, 500.)
b. The Trial Court's Denial of the Romero Motion
Appellant filed a motion to dismiss his prior strike conviction, arguing that his burglary conviction was almost 35 years old and he had not been convicted of any "serious or violent priors since 1984." However, appellant acknowledged his extensive criminal history which consisted of multiple misdemeanor and felony convictions including several theft convictions and traffic violations.
The court denied the motion, and described appellant's criminal record as "extremely lengthy and continuous." Although appellant's strike was decades old, "he has been engaged in" what the court characterized as "nonstop, ongoing criminal behavior, even when he's on some type of supervised release." Although appellant's criminal acts were not violent, they were also "not victimless." Appellant "victimize[ed] people by taking property continuously []that [did] not belong to him . . . ." The court further found that appellant's misdemeanor traffic offenses were relevant to show his reckless behavior on the road—behavior which caused the victim to have his foot amputated.
c. No Abuse of Discretion
Appellant contends the trial court abused its discretion in declining to dismiss his prior strike because his prior conviction was distant in time, and the facts of the current convictions "were not egregious." We conclude the court acted within its discretion.
Although appellant's prior strike occurred a long time ago, the interim period showed he had continued to engage in criminal activity. "The Three Strikes law was devised for the 'revolving door' career criminal,[] and was expressly intended 'to ensure longer prison sentences . . . for those who commit a felony' as long as they were previously convicted of at least one strike." (People v. Strong (2001) 87 Cal.App.4th 328, 331-332.) The court appropriately relied on appellant's extensive criminal history when it determined he fell within the spirit of the Three Strikes law.
Appellant also contends that the facts and circumstances of the instant offenses supported the dismissal of his prior strike: he stopped at the scene, he intended to call for help, and only left "to take care of his own injuries." The court reasonably did not credit appellant's testimony that he intended to render aid at the scene of the accident and only left to tend to his injuries—appellant's testimony at trial was that he did not go to a hospital but went home. Rather, the court emphasized the callousness appellant displayed toward the victim when appellant berated him at the scene of the accident. The court further stated it believed appellant left the scene to avoid arrest.
As the trial court concluded, the remoteness in time of appellant's prior strike was "offset by the continuous, nonstop nature of his criminal history since then, and also his behavior in this case, which . . . is aggravated in terms of callousness." This reasoning was not capricious, arbitrary, or an abuse of discretion. 2. The One-Year Prior Prison Enhancement is Stricken
When appellant was sentenced, former section 667.5, subdivision (b) required courts to impose a one-year sentence enhancement for each of a defendant's prior prison terms. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) In October 2019, the Legislature passed Senate Bill No. 136 which amends section 667.5, subdivision (b) such that the enhancement now only applies if a defendant served a prior prison term for certain sexually violent offenses. (Ibid.) Here, appellant argues, respondent concedes, and we agree that Senate Bill No. 136 applies to him. As his prior prison term was not for a sexually violent offense, the one-year enhancement must be stricken. (Id. at p. 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion."].)
DISPOSITION
We modify the sentence to strike the one-year enhancement imposed pursuant to Penal Code section 667.5, subdivision (b). We direct the trial court to amend the abstract of judgment to reflect this modification, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
RUBIN, P. J. WE CONCUR:
BAKER, J.
MOOR, J.