Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F814
BUTZ, J.Defendant Christopher Thomas Graunstadt pleaded guilty to receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted a prior strike conviction (§ 1170.12). Probation was denied and defendant was sentenced to a term of four years in state prison.
Undesignated statutory references are to the Penal Code.
Defendant appeals, claiming the trial court abused its discretion by denying his Romero motion to dismiss his prior strike conviction. We shall affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
PROCEDURAL AND FACTUAL BACKGROUND
According to the facts as set forth in the probation report, a neighbor of the victim contacted the police regarding a possible burglary in progress at the victim’s residence. The neighbor reported that the victim “had been arrested earlier in the day and . . . there should be no one in his residence.” The neighbor provided a description of one of the suspects, who was seen leaving the residence. Police officers made contact with the suspect and identified him as defendant. Defendant was carrying a bag containing property taken from the victim’s residence. The codefendant was discovered inside the residence. According to defendant, he was helping the codefendant, who was in the process of moving out of the victim’s residence, although the victim stated he had not given them permission to be in the residence or take property from it. Defendant admitted he used methamphetamine on the night of the offense and that he was smoking two to three grams of methamphetamine a day at the time of his arrest.
In addition to the charge of receiving stolen property, it was alleged that defendant had a prior strike conviction that occurred in 1990 in Oregon for “3RD DEGREE BURGLARY in violation of [Oregon Revised Statutes] Section 164.395.” Defendant entered his plea with the understanding that he could bring a “motion to dismiss the strike in the interest of justice.”
In support of his motion to dismiss the strike conviction, defendant argued that he had not committed any violent offenses since 1990, when he was 22 years old. The People opposed defendant’s motion, noting he had multiple misdemeanor convictions (including a prior conviction for receiving stolen property) and numerous probation and parole violations, as well as a felony conviction in 2002 for passing bad checks. Both the People’s opposition and the probation report referred to defendant’s prior strike conviction as a “3rd [d]eg[ree] [r]obbery.”
At defendant’s sentencing hearing, the prosecutor stated that defendant’s prior strike conviction “was a robbery relative to beer,” and defendant’s trial attorney added that defendant had “wrestled with the clerk over the beer.”
The trial court noted that, subsequent to the offense in Oregon, defendant “launch[ed] upon a lifetime of, in essence, petty crimes,” with “annual visits to the court” since 2001 as well as a commitment to state prison. Noting a lack of information concerning defendant’s character, background and prospects, the court concluded that defendant was not “an individual who falls outside the scope of the three strikes rule” and denied his motion to dismiss the strike enhancement.
DISCUSSION
Appellant claims the trial court abused its discretion by failing to dismiss his prior strike conviction. We discern no abuse of discretion on the part of the trial court.
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . 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 . . . .” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) “Preponderant weight must be accorded to factors intrinsic to the scheme, such as 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.)
“‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
The trial court’s determination of whether to dismiss a strike is subject to review for abuse of discretion (Williams, supra, 17 Cal.4th at p. 162), which the defendant has the burden to establish. (Carmony, supra, 33 Cal.4th at pp. 374, 376-377.) “[A]n appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. . . . 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, 309-310.)
In the present matter, the trial court’s denial of defendant’s motion to dismiss his strike was neither irrational nor arbitrary. The court cited the relevant law and, noting defendant’s repeated law violations and the absence of any countervailing information about his background, character or prospects, concluded he did not fall outside the spirit of the three strikes law.
Defendant attempts to minimize the significance of his prior strike conviction, insisting that the offense was mischaracterized by the trial court as a robbery instead of a burglary. But the Oregon statute under which defendant was convicted proscribes “robbery in the third degree” (a “felony”), which is defined as theft by force or threat of force. (Or. Rev. Stat. § 164.395, subds. (1), (2) (1971).) The facts underlying the prior conviction as asserted by defendant’s trial counsel--that defendant wrestled with a clerk after stealing beer--fall within Oregon’s statutory definition for third degree robbery. Moreover, defendant’s Oregon conviction would not have constituted a strike in California had it been a “burglary” of beer from a store. Thus, we conclude there was no mischaracterization of that offense by the trial court. In any event, the trial court relied on the facts underlying defendant’s prior strike conviction (and use of force) in noting that such an offense “could [have] become quite serious.”
Defendant also argues that, although his prior and current offenses are numerous, they are not sufficiently serious to warrant three strike treatment. But the express purpose of the three strikes law is to guarantee longer prison sentences for habitual criminals who commit any felony following the conviction of a serious or violent felony. (People v. Strong (2001) 87 Cal.App.4th 328, 337.) Thus, defendant’s sentence does not reflect punishment “merely on the basis of his current offense but on the basis of his recidivist behavior.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) And “the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law.” (Strong, supra, at p. 344.)
Defendant analogizes his circumstances to those in People v. Cluff (2001) 87 Cal.App.4th 991. In that case, the defendant was sentenced to a term of 25 years to life for violating the sex offender registration requirements by failing to update his registration within five days of his birthday. (Id. at p. 994.) The appellate court characterized the crime as “the most technical violation of the section 290 registration requirement we have seen” (ibid.), noting that the defendant properly registered a number of times over the five years following his release from prison, and that, although he failed to update his registration after his birthday on two occasions, he continued to reside at his last registered address (id. at pp. 994-996). Concluding “the evidence in the record d[id] not support the inference of obfuscation that was central to the trial court’s ruling” (id. at p. 1004), the court held that the trial court abused its discretion in denying defendant’s Romero motion and remanded the matter for reconsideration (Cluff, at p. 1005).
In contrast to Cluff, the trial court here based its ruling on defendant’s repeated law violations since his strike conviction, a finding supported by the record. Moreover, the particular circumstances of this case did not involve a purely technical violation. Rather, defendant was involved in the theft of property from the victim’s residence, including (according to the complaint) a DVD player, a wallet and an identification card. Accordingly, defendant’s reliance on Cluff is inapt.
Defendant’s history of criminal activity spans nearly 30 years and includes at least seven misdemeanor convictions, three felony convictions, and numerous violations of probation and parole. Under such circumstances, the trial court reasonably concluded that defendant could not be deemed outside the spirit of the three strikes law, in whole or in part. In other words, this is not “an extraordinary case--where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ.” (Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, the trial court did not abuse its discretion in denying defendant’s motion to dismiss his prior strike conviction.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., RAYE , J.