Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF025997. Michele D. Levine, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
While the victim was in a market, cashing her payroll check and buying some large money orders, defendant hid in the back seat of her parked car. When she was driving away, he “popped up, ” demanded her wallet, and threatened to kill her. The victim foiled this effort by throwing her wallet out the window. Defendant got out and went back for the wallet; a police officer who had arrived at the scene apprehended him.
Defendant was convicted of attempted robbery. (Pen. Code, §§ 211, 664.) He pleaded guilty to falsely identifying himself to a peace officer. (Pen. Code, § 148.9, subd. (a).) He admitted one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), one prior serious felony enhancement (Pen. Code, § 667, subd. (a)), and two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). As a result, he was sentenced to a total of 13 years in prison.
Defendant now contends:
1. The trial court erred by refusing to dismiss the case based on the prosecution’s failure to preserve potentially exculpatory videos from the market’s surveillance cameras.
2. The standard reasonable doubt instruction (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 220) was erroneous.
3. The trial court erred by denying defendant’s Romero motion.
A “Romero motion” is a motion to dismiss a strike prior in the interest of justice under Penal Code section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. Testimony of Marwan Rahman and Stacey Emsley.
Marwan Rahman owned and operated La Famosa Market on Latham Avenue in Hemet. On June 6, 2008, around 9:00 a.m., Stacey Emsley entered the market. She was in the process of moving; she was there to cash her payroll check and to buy two large money orders to pay the rent on her new place. Emsley had parked her blue Honda Accord in the parking lot, right outside the front door. She had not locked it.
The jury was given a map of the area (Exhibit 15). This exhibit has not been transmitted to us. (See Cal. Rules of Court, rule 8.224.) In lieu of this exhibit, we take judicial notice of the following: Latham runs east-west. La Famosa Market is on the northeast corner of Latham and Tahquitz Avenue. The first intersection to the east is Latham and Las Lunas Street; the second intersection to the east is Latham and Gilbert Street.
When Emsley entered the market, she noticed defendant standing just outside the front door. He followed her in and stood near her while she was at the register. Just before she finished her transaction, he walked out. Rahman was not able to identify defendant at trial. However, a video of the interior of the market, taken by a security camera at the front door, showed defendant walking in and out of the store at least three times before Emsley arrived, without buying anything. It also showed him standing behind Emsley.
Because Emsley did not feel safe, she asked Rahman to walk her to the front door, which he did. Defendant was “nowhere to be seen....” Emsley got into her car and started to drive east on Latham. Suddenly, in her rear-view mirror, she saw defendant “pop[] up” in her back seat. He had been hiding behind some folded-up moving boxes. He said, “Give me your money and your money orders, and I’m not going to kill you.”
Emsley threw her wallet out the window and dropped the money orders to the floorboard. She pulled over, hitting the curb. She then told defendant, “I threw my wallet out the window.” Defendant said, “Turn around.” She drove to the next intersection and started to make a U turn. At that point, however, defendant ordered her to stop and let him out. She complied.
Defendant started walking back to where the wallet was. Emsley, however, completed her U turn, drove back, and arrived at the location where the wallet was before defendant did. When she got there, she saw another man talking to a female police officer. She stopped her car and got out. She was crying and hysterical. She pointed at defendant and said, “That son of a bitch tried to rob me.” The female officer detained defendant.
B. Testimony of Harold Depew.
Witness Harold Depew testified that he was driving west on Latham and was just about to turn right (north) on Gilbert. He noticed a blue compact car going east on Latham. When it got to Gilbert, it slowed down to “a couple of miles an hour” but did not come to a complete stop. It started to make a U turn.
While the car was still moving, Depew saw defendant get out of the driver’s side rear door. Defendant then walked back west on Latham. Even though it was a hot summer day, defendant was wearing knitted gloves.
A woman was driving the blue car. She appeared to be “very scared, very distraught.” The car then completed its U turn and likewise went back down Latham. Meanwhile, Depew saw a police car pull out from Las Lunas and turn east on Latham. A female officer got out and detained defendant.
C. Testimony of Officer Teresa Nipp.
Officer Teresa Nipp testified that she was driving her patrol car on Las Lunas and had stopped for the stop sign at Latham when she saw a car pull over to the side of the road, just east of the market. A man (not defendant) got out. He picked up a wallet and some papers that were in the middle of the street. He then flagged her down.
The man said, “I saw this thrown from that vehicle” and pointed to a blue (or green) car going east on Latham. That car started to make a U turn at Gilbert, but it came to a stop on the northwest corner of the intersection, partially on the sidewalk. Officer Nipp saw defendant get out of the rear passenger side door and start running back west on Latham. The driver of the car was screaming. Officer Nipp ran to defendant and detained him.
D. Testimony of Officer Truong Ta.
Officer Truong Ta was dispatched to the scene. When he interviewed Emsley, she was crying and hysterical. Emsley pointed to defendant and said, “He robbed me.” Defendant had two black gloves in his hands and one in his pocket.
II
FAILURE TO PRESERVE POTENTIALLY EXCULPATORY EVIDENCE
Defendant contends that the trial court erred by denying his motion to dismiss the case, which was based on the prosecution’s failure to preserve potentially exculpatory videos from the market’s surveillance cameras.
A. Additional Factual and Procedural Background.
The market had 16 video surveillance cameras. They were on “a two-week loop, so if the image is not preserved within that two weeks, it is gone forever.” An image could be preserved by downloading it to a hard drive. The hard drive was maintained by “the tech, ” named John Pearson.
Most of the cameras were inside the store. “Maybe two or three, ” however, were out in the parking lot. The latter showed only the front door of the store and the sidewalk immediately to the left and right, so that Rahman could keep an eye on any merchandise there. With respect to vehicles, they showed, at most, “a front bumper or the very front part of a car that’s parked facing the store....”
By the time of trial, two of the cameras that had been outside the store were missing. No images from those two cameras were available. The trial court reviewed a recent video taken by the camera (or cameras) that remained outside the store; that video did not show “anything more than the front bumper” of a car.
On the day of the crime, according to Rahman, the police asked him if they could see “the video.” He showed two officers the video taken by front door camera. Rahman then asked the tech to make a copy of the video of “everything [that] happened in the store” while the victim was there. He did not tell the tech which cameras to make the copies from. He did not view the videos from any of the parking lot cameras.
These officers, if they existed, were never identified. The investigating officer testified that he asked Rahman for a video; Rahman said he would make a copy and leave it at the station, but the officer never got it.
The tech created a DVD with footage from two cameras, including the front door camera. Rahman (or the tech) gave a copy of the video to the victim. Rahman also “dropped off” a copy of the video at the police station; however, he failed to address it to the investigating officer.
The police report did not say anything about videotapes. About five months before trial, defense counsel subpoenaed any videotapes from inside or outside the market. None were produced. Both the prosecutor and defense counsel believed that none existed. On the eve of trial, however, the victim provided her copy of the DVD to the prosecutor, who provided it to defense counsel.
Defense counsel moved to dismiss, based on the prosecution’s failure to preserve the other surveillance videos. Alternatively, she requested a jury instruction adverse to the prosecution.
The trial court denied the motion. It explained: “[I]t does not appear to the Court, number one, that there was any wrongful action by the People. Number two, it does not appear to the court that there is any evidence that was otherwise destroyed that would have been inculpatory or exculpatory....”
B. Analysis.
“Due process requires the state preserve evidence in its possession where it is reasonable to expect the evidence would play a significant role in the defense. [Citation.] The evidence must ‘possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citation.]” (People v. Alexander (2010) 49 Cal.4th 846, 878, quoting California v. Trombetta (1984) 467 U.S. 479, 489 [104 S.Ct. 2528, 81 L.Ed.2d 413].)
“The state’s responsibility is further limited when the defendant challenges the failure to preserve evidence ‘of which no more can be said than that it could have been subjected to tests’ that might have helped the defense. [Citation.] In such a case, unless the defendant can show ‘bad faith’ by the police, failure to preserve ‘potentially useful evidence’ does not violate his due process rights. [Citation.]” (People v. DePriest (2007) 42 Cal.4th 1, 42.)
“‘On review, we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling. [Citation.]’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1215, 1246.)
Here, the prosecution had no duty to preserve the videotapes, for two separate and alternative reasons.
First, the videotapes were never in the state’s possession. Except for the DVD that the victim turned over on the eve of trial, the videotapes remained in the possession of the market. “[T]he prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense. [Citations.]” (In re Littlefield (1993) 5 Cal.4th 122, 135.) The People have “a duty of preservation of evidence favorable to the accused if the People have gathered such evidence. [¶] ‘“[T]he law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring... evidence deemed necessary to the defense of an accused.” [Citation.]’ [Citations.]” (People v. Callen (1987) 194 Cal.App.3d 558, 561-562.)
For example, in People v. Bradley (1984) 159 Cal.App.3d 399, a burglar entered a house by breaking a window; in the process, he evidently cut himself, as the police found blood on the curtains and elsewhere around the house. They did not collect any of the bloodstained items, however, until about a year and a half later. (Id. at pp. 401-402.) Due to the lapse of time, it had become impossible to type the blood. (Id. at pp. 402-403.) The trial court ruled that the police had violated a duty to collect the evidence. (Id. at p. 403.)
The People appealed, and the appellate court reversed. It held that “the duty to preserve evidence [does not] encompass[] an initial duty to gather or collect or seize potential evidence for defendant’s use which investigative officers discover at the scene of the crime.” (People v. Bradley, supra, 159 Cal.App.3d at p. 405.) It explained that the police have no “‘duty to obtain... evidence or to conduct any particular tests. [Citation.] The police cannot be expected to “gather up everything which might eventually prove useful to the defense.” [Citations.]’ [Citation.]” (Id. at pp. 405-406.)
Admittedly, Bradley relied on the California Supreme Court’s ruling in People v. Hitch (1974) 12 Cal.3d 641, rather than the United States Supreme Court’s ruling in Trombetta. Hitch, however, enunciated an even higher standard than Trombetta. (People v. Hardy (1992) 2 Cal.4th 86, 165.) The Bradley court was at least aware of Trombetta and did mention it briefly. (People v. Bradley, supra, 159 Cal.App.3d at p. 407.)
Second, the exculpatory value of the evidence was not apparent; at best, it was potentially useful to the defense, but in that case, there was no evidence of bad faith.
Even though two of the parking lot cameras were missing, Rahman testified that none of the parking lot cameras showed any more than the very front of a parked vehicle. And even assuming that they would have shown a person getting into Emsley’s car, it was at least as likely that that person would have been defendant as not. Accordingly, the exculpatory value of these videos was not apparent before they became unavailable.
The most that could be said is that they constituted “potentially useful evidence.” But the failure to preserve potentially useful evidence does not violate a defendant’s due process rights in the absence of bad faith. And in this case, no bad faith was shown.
Defendant argues that “bad faith may be shown either by an intentional act or by reckless disregard.” The United States Supreme Court has stated, however, that “[t]he presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. [Citation.]” (Arizona v. Youngblood (1988) 488 U.S. 51, 56, fn. * [109 S.Ct. 333, 102 L.Ed.2d 281]; accord, People v. DePriest, supra, 42 Cal.4th at p. 42.) There is no evidence that here the police knew that video from one of the other cameras would actually be exculpatory. Indeed, it does not appear that they even knew that there were other cameras.
Defendant cites People v. Pastor Cruz (1993) 16 Cal.App.4th 322 for the proposition that “even in the absence of bad faith, the failure of the prosecution to preserve evidence that ‘might be expected to play a significant role in the suspect’s defense’ does violate due process. [Citations.]” (Id. at p. 325.) The quoted language, however — taken from Trombetta itself — is just another way of saying that the exculpatory value of the evidence must already be apparent. As we have already held, that was not the case here. The evidence was merely potentially useful.
The videos from the remaining 14 cameras were not even potentially useful. None of these cameras were aimed at the parking lot. Some of them did show a small portion of the parking lot, but only incidentally; they were aimed primarily at the front door and the sidewalks. They showed only the bumpers and a small portion of the hoods of cars; they did not even show windshields. Thus, it appears that, even if all 14 of these videos had been available, they would not have been exculpatory.
Finally, the trial court properly refused to instruct the jury that it could draw an adverse inference from the prosecution’s failure to preserve evidence. When no constitutional violation has been shown, no such instruction need be given. (People v. Farnam (2002) 28 Cal.4th 107, 167-168.)
III
THE REASONABLE DOUBT INSTRUCTION
Defendant contends that the standard reasonable doubt instruction (CALCRIM No. 220) was erroneous in three respects.
A. Additional Factual and Procedural Background.
Both the prosecution and the defense requested CALCRIM No. 220. That instruction, as given in this case, provides:
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.
“The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.”
B. Analysis.
The People have not argued that defense counsel invited any error by requesting the instruction. (See generally People v. Thornton (2007) 41 Cal.4th 391, 436.) Accordingly, we assume, without deciding, that the error was not invited.
1. Prohibiting consideration of lack of evidence.
First, defendant focuses on the words, “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial.” He argues that this effectively forbids the jury to consider an absence of evidence.
This argument has been roundly and repeatedly rejected. (People v. Zavala (2008) 168 Cal.App.4th 772, 780-781; People v. Garelick (2008) 161 Cal.App.4th 1107, 1118-1119; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510.)
“Reasonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. [Citation.] The plain language of CALCRIM No. 220 does not instruct otherwise. The only reasonable understanding of the language, ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty, ’ is that a lack of evidence could lead to reasonable doubt. Contrary to defendant[’s] claim, CALCRIM No. 220 did not tell the jury that reasonable doubt must arise from the evidence. The jury was likely ‘to understand by this instruction the almost self-evident principle that the determination of defendant’s culpability beyond a reasonable doubt... must be based on a review of the evidence presented.’ [Citations.]” (People v. Campos, supra, 156 Cal.App.4th at p. 1238.)
In addition, the trial court instructed the jury with CALCRIM No. 355 (Defendant’s Right Not to Testify). This instruction states that a defendant “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” Thus, it indicates that the jury may consider a lack of evidence. (People v. Flores, supra, 153 Cal.App.4th at p. 1093.)
2. “Compare” as implying a preponderance standard.
Next, defendant focuses more narrowly on the words, “[Y]ou must impartially compare and consider all the evidence that was received throughout the entire trial.” He argues that this implies a weighing of the evidence, which in turn implies a preponderance of the evidence standard.
This argument, too, has been repeatedly rejected. (People v. Stone (2008) 160 Cal.App.4th 323, 331-332; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157.) “The instruction simply tells the jury to ‘compare and consider all the evidence that was received throughout the entire trial.’ It does not instruct the jury to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side. Indeed, such an interpretation is completely inconsistent with the instructions as a whole. Elsewhere in the instruction the jury is told that ‘[t]he fact that a criminal charge has been filed against the defendant is not evidence that the charge is true’ and that ‘[a] defendant in a criminal case is presumed to be innocent, [which]... requires that the People prove each element of a crime beyond a reasonable doubt.’ Further, the instruction tells the jury that ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.’
“The idea that the jury would interpret ‘compare’ to mean that guilt is to be determined by a balancing-of-the scales approach that compares the evidence offered by two sides is further undercut by other instructions. The jury was told that ‘[n]either side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.’ The jury was also instructed that ‘defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.’ In sum, reading the instructions as a whole, together with the fact that nowhere in closing arguments do counsel so much as allude to a preponderance standard, we are convinced that there is no likelihood whatsoever that the jury could have interpreted the ‘compare and contrast’ language in the instruction in the manner suggested by defendant.” (People v. Stone, supra, 160 Cal.App.4th at p. 332.)
Defendant cites Coffin v. United States (1895) 156 U.S. 432 [15 S.Ct. 394, 39 L.Ed. 481] for the proposition that an instruction to “impartially” consider the evidence undermines the presumption of innocence. That misreads Coffin. There, the trial court refused the defendant’s request for an instruction on the presumption of innocence. (Id. at p. 452.) However, it did instruct that the jury had to find the defendants guilty beyond a reasonable doubt. (Ibid.) It further instructed that “‘if, after weighing all the proofs and looking only to the proofs, you impartially and honestly entertain the belief that the defendants may be innocent of the offences charged against them, they are entitled to the benefit of that doubt, and you should acquit them.’” (Id. at p. 453.)
The Supreme Court held that the presumption of innocence and the requirement of proof beyond a reasonable doubt are distinct concepts, and hence the refusal to instruct on the presumption of innocence was error. (Coffin v. United States, supra, 156 U.S. at pp. 458-461.) It specifically declined to hold that the reasonable doubt instructions, in themselves, were erroneous. (Id. at p. 461.) Here, of course, CALCRIM No. 220 specifically included the presumption of innocence. Thus, it was not erroneous under Coffin.
3. “Compare” as implying a preponderance standard.
Third and finally, defendant argues that CALCRIM No. 220 is defective because it fails to specify that the prosecution must prove “every element” of a charged offense beyond a reasonable doubt.
Yet again, this contention has been unanimously rejected. (People v. Riley (2010) 185 Cal.App.4th 754, 769-770; People v. Henning (2009) 178 Cal.App.4th 388, 406; People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601; People v. Ramos (2008) 163 Cal.App.4th 1082, 1087-1090.) Indeed, in Henning, the court deemed the argument so “frivolous” that “the taxpayers will not have to pay appellate counsel for having made this argument.” (Henning, at p. 406 & fn. 3.)
Here, with respect to attempted robbery, the trial court instructed:
“To prove that the defendant is guilty of this crime the People must prove that:
“1. The defendant took a direct but ineffective step toward committing robbery[;] and[]
“2. The defendant intended to commit robbery.” (CALCRIM No. 460, italics added.)
With respect to robbery, it instructed:
The trial court actually stated that the following instruction applied to attempted robbery. Defendant does not claim this was error. It was probably obvious that the trial court just misspoke; even if not, the error would only have helped defendant, by requiring the prosecution to prove a completed robbery.
“To prove that the defendant is guilty of this crime the People must prove that:
“1. The defendant took property that was not his own.
“2. The property was taken from another person’s possession and immediate presence.
“3. The property was taken against that person’s will.
“4. The defendant used force or fear to take the property or to prevent the person form resisting[;] and[]
“5. When defendant used force or fear to take the property, he intended to deprive the owner of it personally or remove it from the owner’s possession [so] that the owner would be deprived of the major portion of the value or enjoyment of the property.” (CALCRIM No. 1600, italics added.)
“... CALCRIM No. 220... — which informs the jury that when the court says that the People must prove something, the People must prove it beyond a reasonable doubt [—] combined with the court’s instruction that the People must prove each element of the offense..., adequately informs the jury that it must find that each element has been proved beyond a reasonable doubt.” (People v. Riley, supra, 185 Cal.App.4th at p. 770.)
IV
THE DENIAL OF DEFENDANT’S ROMERO MOTION
Defendant contends that the trial court abused its discretion by denying his Romero motion. This contention is frivolous.
A. Additional Factual and Procedural Background.
Defendant was born in September 1985; thus, he turned 18 in September 2003, and at sentencing, he was 23. He had the following prior convictions:
November 2001: Vandalism (Pen. Code, § 594, subd. (a)), as a misdemeanor. He was sent to juvenile hall.
April 2004: Resisting an executive officer (Pen. Code, § 69), as a felony. He was sent to juvenile hall.
June 2004: Forgery of a prescription (Bus. & Prof. Code, § 4324, subd. (a)), as a misdemeanor; making a false health care benefit claim (Pen. Code, § 550, subd. (a)(7)), as a misdemeanor; shoplifting (Pen. Code, § 490.5), a misdemeanor; and simple assault (Pen. Code, § 240), a misdemeanor. He was placed on probation.
August 2004: Spousal battery (Pen. Code, § 243, subd. (e)), as a misdemeanor; making a criminal threat (Pen. Code, § 422), as a misdemeanor; possession of a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)), as a misdemeanor; and residential trespassing (Pen. Code, § 602.5, subd. (a)), a misdemeanor. He was placed on probation.
September 2004: Resisting an officer (Pen. Code, § 148, subd. (a)(1)), a misdemeanor; and possession of drug paraphernalia (Health & Saf. Code, § 11364), a misdemeanor. He was placed on probation.
October 2004: Grand theft from the person (Pen. Code, § 497, subd. (c)), as a felony. He was placed on probation. He violated his probation by committing his next offense, and at that time, he was sentenced to 16 months in prison.
April 2005: Making a criminal threat (Pen. Code, § 422), as a felony. He was sentenced to 16 months in prison. (This was the strike prior.)
December 2006: Giving a false name to a peace officer (Pen. Code, § 148.9, subd. (a)), a misdemeanor; and false personation (Pen. Code, § 529, subd. 3), as a misdemeanor. He was placed on probation.
June 2007: Receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)), as a felony. He was sentenced to 16 months in prison.
Defendant committed the current offenses while on both parole and probation.
Defendant was a member of the “Frontline” gang. He used phencyclidine (PCP) and marijuana daily, at a cost of about $50 a day. He had never been employed. He admitted that he supported himself, in part, by selling controlled substances.
Defendant told the probation officer that “he is a product of a dysfunctional upbringing; his mother was a drug[] addict and he has never met his biological father. He... lived a life with ‘no rules, ’ doing what he ‘pleased.’” He explained his adult convictions as follows: “The system is designed against me. Everybody does something wrong, they just haven’t been caught.” Defendant also noted that, although he had previously been to prison three separate times, “Prison doesn’t reform or help you.”
Defense counsel filed a written Romero motion. It was based on defendant’s “relatively young age, drug addiction, and the negative effect of his unfortunate upbringing.” It also noted that the current offense did not involve any weapon or any actual violence and that the strike prior had been incurred four years earlier.
The trial court denied the motion. It explained that the strike prior was not remote, that defendant had repeatedly violated probation by committing fresh crimes, and that “in each of those matters, there was not a long period of time when you were out of custody before you reoffended....” It concluded: “The Court does not feel..., based upon your history, in terms of compliance with probation, the criminal behavior, and the increased seriousness of the behavior, that you fall outside the spirit of the three strikes law....”
B. Analysis.
In Romero, the Supreme Court held that a trial court has discretion to dismiss a three-strikes prior felony conviction allegation under Penal Code section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The focus of the analysis must be on “‘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.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “[W]e 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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] 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.’”’ [Citation.] 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.” (Id. at pp. 376-377.)
“[T]he three strikes law... creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) “Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case — where the relevant factors... manifestly support the striking of a prior conviction and no reasonable minds could differ — the failure to strike would constitute an abuse of discretion.” (Ibid.)
Far from being outside the spirit of the three strikes law, defendant is practically a “poster boy” for the law — a gang member and a drug addict, never legally employed, who cannot seem to stop committing crimes, even when on probation or parole. He refused to take responsibility for his crimes, blaming them on the “system.” He admitted that his past stints in prison had not been effective in reforming him.
Defendant argues that his youth is mitigating. The flip side of this, of course, is that he managed to rack up his formidable adult criminal record — including three felonies and twelve misdemeanors — in only five years. He admitted that he also sold drugs, a crime for which he had not yet been caught. And he showed no sign of stopping. Indeed, as the trial court observed, his crimes tended to be increasingly serious.
He emphasizes the fact that the strike prior was committed when he was a teenager. (The record does not show exactly when it was committed, but he was 19 1/2 when he was convicted.) This ignores the fact that his current offense — attempted robbery — is a new strike. (Pen. Code, §§ 667, subd. (d)(1), 1192.7, subds. (c)(19), (c)(39).) Obviously, he has not outgrown the commission of serious felonies. Moreover, this is not a case in which the current offense is relatively minor.
Defendant’s drug abuse was additionally aggravating. In general, “when a defendant has a drug addiction or substance abuse problem, where the defendant has failed to deal with the problem despite repeated opportunities, where the defendant shows little or no motivation to change his life style, and where the substance abuse problem is a substantial factor in the commission of crimes, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence.” (People v. Reyes (1987) 195 Cal.App.3d 957, 963; accord, People v. Williams (1998) 17 Cal.4th 148, 163 [defendant’s failure to “follow through in efforts to bring his substance abuse problem under control” favored denial of Romero motion].)
For all these reasons, we conclude that the trial court did not err by denying defendant’s Romero motion. Indeed, although the question is not befoore us, we suspect it would have been an abuse of discretion to grant it.
V
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., MILLER, J.