Opinion
B227331
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS MANZO, Defendant and Appellant.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Idan Ivri, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA107574)
APPEAL from a judgment of the Superior Court of Los Angeles County. Gary E. Daigh, Judge. Affirmed.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Jorge Luis Manzo appeals from the judgment entered following a no contest plea to assault by means of force likely to produce great bodily injury and spousal battery and admission of a "strike," that is, a prior serious or violent felony conviction. Defendant contends the trial court abused its discretion by failing to (1) treat his aggravated assault count as a misdemeanor and (2) vacate the strike finding. We affirm.
BACKGROUND
A.M. testified at the preliminary hearing that she and defendant had been married for 14 years and had four children. On the morning of July 6, 2009, she was lying in bed with her 10-year-old daughter, who was asleep. Defendant came into the room and asked her where she had gone. He placed his hands around her throat and began squeezing. A.M. was frightened, in pain, and having difficulty breathing. A.M.'s daughter asked defendant to stop, but defendant continued to strangle A.M. and told their daughter to "shut up." Then their 14-year-old son told defendant to stop, but defendant continued to strangle A.M. and told their son to "shut up." Finally, the daughter told defendant that A.M. had gone out the night before with A.M.'s brother. Defendant then stopped strangling A.M. A.M. drove to the police station to report the crime.
Defendant was charged with assault by means of force likely to produce great bodily injury and spousal battery. He was alleged to have one strike prior: a 1997 spousal rape conviction. As trial began, defendant entered an open no contest plea to both charges and admitted the strike allegation.
The trial court denied defendant's requests to treat his conviction of assault by means of force likely to produce great bodily injury as a misdemeanor and to vacate the strike finding. It sentenced him to a second strike prison term of six years.
DISCUSSION
1. Refusal to treat aggravated assault as misdemeanor
Assault by means of force likely to produce great bodily injury is a "wobbler," meaning it may be punished as either a felony or a misdemeanor in the discretion of the trial court. (Pen. Code, § 17, subd. (b)(1); undesignated statutory references are to the Penal Code.) Defendant requested that the trial court treat defendant's conviction of this charge as a misdemeanor. He argued that the conduct was consistent with a misdemeanor because A.M. suffered no injury and his family depended upon him for financial support. He further argued that he stopped strangling A.M. when one of the children told him to leave. He presented a letter from his employer of nearly 20 years calling defendant an excellent employee and a letter indicating his attendance at Alcoholics Anonymous meetings. He also argued that he had complied with the restraining order A.M. had obtained against him, apparently following the charged offenses. The prosecutor opposed the motion, in part because A.M. was also the victim of the spousal rape that was defendant's admitted strike prior.
Defendant also requested that the trial court vacate the strike finding under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero). The court denied the motions. It first explained its reasons for denying defendant's Romero motion, including that the strike prior was a crime of violence against a woman and was not remote, and in the interim defendant had been convicted of driving without a license in violation of Vehicle Code section 12500, subdivision (a). The court then stated, "17b motion is denied for the same reason. This is not a misdemeanor. [¶] If he didn't have any other conduct in his past, I might reduce it. If he had some contact that wasn't related to a woman, I might reduce it, but I think it is inappropriate to reduce it when it is against the same woman who[m] he raped in 1997."
Defendant contends that the trial court abused its discretion by denying his request to treat the aggravated assault conviction as a misdemeanor and by deciding his motion to vacate the strike finding first.
Section 17, subdivision (b)(1) provides that a "wobbler" offense is a misdemeanor if the trial court, in its discretion, does not sentence the defendant to prison. In exercising its discretion, some of the relevant factors are "'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, [] his traits of character as evidenced by his behavior and demeanor at the trial' [citations]," "the general objectives of sentencing such as those set forth in California Rules of Court, rule [4.]410," and "the offense, the offender, and the public interest," including "public safety considerations" and "the defendant's criminal history." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978-979.) "'The 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.' [Citation.]" (Id. at pp. 977-978.) 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." [Citations.]'" (Id. at p. 978.)
Defendant has not met his burden in this case. The trial court listened to defendant's motion, reviewed the court file, and heard arguments by the parties. The court's comments indicate that it fully considered the matter, and its denial was based upon an individualized consideration of the serious and violent nature of defendant's conduct giving rise to the current offenses, his criminal history, and the safety of the public. We have reviewed the record and cannot conclude that the trial court's decision was arbitrary or irrational. Defendant approached his wife while she was lying in bed and engaged in an unprovoked act of violence that was likely to produce great bodily injury, in full view of two of his minor children, one of whom was sleeping next to A.M. at the moment defendant commenced his attack. Defendant did not come to his senses and stop strangling A.M. when first his daughter, then his son, pleaded with him to stop. Instead, he told them to "shut up." He only stopped strangling A.M. when his daughter quelled his jealousy by telling him that A.M. had gone out with A.M.'s brother. Although A.M. was not injured, had defendant's daughter not said just the right thing to cause defendant to relent, A.M. might well have been injured or killed. The court acted well within its discretion by concluding that, "This is not a misdemeanor."
Our conclusion is not altered by the court's reference to A.M. as the common victim of both the strike and the current offenses. The court was apparently concerned that both defendant's strike and the current offenses involved violent attacks on women, as opposed to men. In addressing the Romero motion, the court stated that the strike was a crime of "violence against a woman, and it was this woman, and he raped her." In explaining its denial of the request to treat the aggravated assault charge as a misdemeanor, the court stated, "If he had some contact that wasn't related to a woman, I might reduce it, but I think it is inappropriate to reduce it when it is against the same woman who[m] he raped in 1997." And after sentencing defendant, the court stated an opinion that defendant was "'a danger to women.'" In light of the entire record, we conclude the court did not abuse its discretion.
Nor is there any merit to defendant's argument about the order of the court's rulings. Defendant did not object when the court asked counsel to argue both motions before it ruled, nor did he object when the court stated its ruling on the Romero motion first. Had he done so, the court could have first announced its ruling on the request to treat the aggravated assault as a misdemeanor. Accordingly, defendant deprived the court of the opportunity to correct the alleged error, resulting in forfeiture. (People v. Simon (2001) 25 Cal.4th 1082, 1103.) Even if he had not forfeited the claim, we would not find any merit in it. Although the court announced its decision regarding the strike finding first, it is clear from the record that the court considered the merits of each motion separately and had decided to deny the motion to treat the aggravated assault conviction as a misdemeanor before it began announcing its decision to deny the motion to vacate the strike finding. The court introduced its ruling by saying, "[W]ell, clearly I could sentence him to a misdemeanor and that would sort of advocate [sic]the Romero motion by interim." (Under the circumstances, we consider it highly probable that the court reporter erroneously transcribed the court's statement, recording "advocate" instead of "abrogate" or "obviate" and "interim" in lieu of "inference.") As soon as it finished explaining its rationale regarding the Romero motion, the court said, "17b motion is denied for the same reason. This is not a misdemeanor." The court did not base its ruling on the motion to sentence under section 17, subdivision (b)(1) on its denial of the Romero motion, but on the same factors that led to that denial. This was permissible, and the order in which the court announced its rulings was irrelevant.
2. Refusal to vacate strike finding
In support of his request that the trial court vacate the strike finding, defendant cited the same factors he urged in support of his motion under section 17, subdivision (b)(1), and also argued that his spousal rape conviction resulted from a guilty plea and was remote. He noted that apart from the current offenses and the strike prior, he had only "a diversion program" (for possession of a controlled substance in 1994) and "a traffic offense" (the Vehicle Code section 12500, subdivision (a) violation in March of 2001), and was thus not a career criminal, but was instead "a family man" with "a good job," "still taking care of his family." The prosecutor opposed the motion.
In ruling on the motion, the trial court explained that it had to consider a number of factors. It concluded the strike prior was not remote. It noted that the current offenses were not strikes, defendant had only the violation of Vehicle Code section 12500, subdivision (a) on his record between the strike prior and the current offenses, A.M. was not injured, and defendant had been supporting his family. But, the court stated, "The thing that I have been thinking about for—it seems like two months. . . . Looking at the type of conduct that happened 12 years before this, it was violence. It was violence against a woman, and it was this woman, and he raped her. That's the problem that I have been having for two months about whether this is within the spirit of the Three-Strike law or not. If you rape somebody and then you are together, you can't then choke her to the point where the child has to say, 'Don't, daddy. Get off.' [¶] If it wasn't [sic] a different victim, it might be different in my mind, but I think that it is definitely within the spirit of the Three-Strike law, even if it is 12 years old; if he rapes his wife and 12 years later chokes her in the bed. So the Romero motion is denied."
Defendant contends that the denial of his motion was an abuse of discretion. He cites the same factors argued in the trial court in support of the motion, argues that he received probation for his strike prior and did not violate it, and argues it was irrational for the trial court to conclude that attacking the same victim twice was more egregious than committing random acts of violence against strangers. In light of the entire record, we conclude the court did not abuse its discretion.
A trial court has discretion under the "Three Strikes" law to vacate prior conviction findings in the furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising this power, the trial court must consider the defendant's background, his constitutional rights, the nature of the current offense, and the interests of society. (Id. at pp. 530-531.) The court should not vacate a strike unless it concludes that the defendant may be deemed to be outside the anti-recidivist "spirit" of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court's decision is reviewed deferentially. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The "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 p. 377.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances," such as where the court was unaware of its discretion or considered impermissible factors. (Id. at p. 378.) "Where the record is silent [citation], or '[w]here 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' [citation]. 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." (Ibid.)
The record demonstrates that the trial court was fully aware of its discretion, the pertinent factors it was to consider, and the facts. Nothing indicates that the court's ruling was not impartial or that the court considered any improper factors. Defendant's disagreement with the trial court's view of the his background, the gravity of the current offenses, and his prospects does not render the court's ruling arbitrary or irrational. He was a violent recidivist felon, and his case did not present the "even more extraordinary" circumstances in which all reasonable people would agree that defendant fell outside the anti-recidivist spirit of the second strike provisions of the Three Strikes law. Accordingly, the trial court did not abuse its discretion.
3. Correction of abstract
Defendant initially requested that this court correct the abstract of judgment. At his request, the trial court did so and the request is moot.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
ROTHSCHILD, J.
JOHNSON, J.