Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF134303 Russell F.Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Eric R. Larson, 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 Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury convicted defendant, Rufus Johnny Valenzuela, of second degree burglary, (count 1—Pen. Code, § 459), receiving stolen property (count 2—§ 496, subd. (a)), and willfully resisting a peace officer in the discharge of his duties (count 5—§ 148, subd. (a)). Thereafter, defendant admitted the truth of three prior prison term allegations (§ 667.5, subd. (b)) and two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). The court sentenced defendant to an aggregate term of 28 years to life consisting of 25 years to life on count 1; 25 years to life, stayed pursuant to section 654, on count 2; and an additional year for each of the three prior prison terms. On appeal, defendant contends the trial court erred in refusing to strike one of his prior strike convictions because it erroneously believed that there was no legal basis to do so. We conclude the trial court acted well within and in full comprehension of its discretion in refusing to strike one of defendant’s prior strike convictions. We, therefore, affirm the judgment in full.
All further statutory references will be to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A neighbor discovered what appeared to be an ongoing burglary at a residence. He called the owner’s son who immediately went over to the house. The son saw defendant close the gate to the property and ride off in a car. The son called the police, who eventually caught up with defendant. The son identified his father’s property in the vehicle.
DISCUSSION
Defendant contends the trial court incorrectly concluded that there was no legal basis to strike one of defendant’s prior strike convictions; hence, he concludes the matter must be remanded so that the trial court may properly exercise its discretion in determining whether one of his strikes should be stricken. We find that the court properly understood and exercised its discretion in denying defendant’s Romero motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Under this standard, the defendant bears the burden of establishing an abuse of discretion. (Id. at p. 376.) In the absence of such a showing, the trial court is presumed to have acted correctly. (Id. at pp. 376-377.) The appellate court may not substitute its judgment for that of the trial court when determining whether the court’s decision to strike the prior was proper. (Id. at p. 377.) “‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, 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, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (Ibid.) “‘[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].” (Id. at p. 378.)
Defendant filed a Romero motion arguing that the court should strike one of defendant’s prior strike convictions because both his prior strikes arose out of the same incident. At the hearing on the matter, defense counsel also cited as facts supporting his motion that the current convictions did not involve violence and that the stolen property was returned to its owner. The court responded: “As far as the Romero motion is concerned, obviously the Court would have to have a basis to grant the motion. I have an individual before the Court who has been consistently committing crimes and consistently incarcerated in the state prison. And this starts in 1996 when he was committed to 16 months in the state prison, housed at the California Youth Authority. He thereafter received a dishonorable discharge, picking up another auto theft and evading, sent to state prison and four parole violations. Ultimately, in 2000, receiving a [section] 245 [assault upon a peace officer with a firearm] and a [section] 459 first [degree burglary], returning to state prison for a term of six years. And this offense happening on January 13, 2007, which was just shortly after he was discharged from his last conviction, which I believe was [in] the State of Utah . . . . [¶] At any rate, he’s been consistently committing crimes, consistently incarcerated. And the facts and circumstances of this case demonstrate to this Court that he has absolutely no concern for the laws in the community. He fled from the police, he hid in a shed, which necessitated a police dog going in and fighting with him and ultimately the dog winning and dragging him out, whereupon he was thereafter arrested for the burglary that he stands convicted for, plus the receiving stolen property. So the motion is denied.”
Defendant seizes on the first sentence of the court’s rationale for the proposition that the court believed there was no legal basis for it to strike one of defendant’s prior strike convictions. Since in defendant’s mind there is a legal basis for striking one of defendant’s prior strikes, he maintains the court erred in properly construing its discretionary power in electing whether to strike a prior conviction. However, the more reasonable view of the court’s first statement is that it believed, in the exercise of its discretion, that no appropriate legal basis existed to strike a prior conviction.
The court noted defendant’s lengthy criminal history and repeated failures on parole. It observed that defendant committed the instant crimes soon after being discharged from his most recent prior conviction. The court further considered the seriousness of defendant’s current convictions in which he committed burglary, received stolen property, and fled from the police. The record further supports the court’s decision in that defendant failed to take responsibility for the current convictions, alleging he was merely riding in the car driven by another individual, but had not participated in the burglary or receipt of the stolen property. Defendant had only a ninth-grade education and, at the age of 31, reported only a one-year work history. By his own admission defendant had spent “the majority of [his] juvenile and adult life incarcerated.” Yet, defendant still failed to learn from his mistakes. “[T]he circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the [Three Strikes] scheme . . . .’” (Carmony, supra,33 Cal.4that p. 378.) Defendant has failed to sustain his burden in proving that the trial court abused its discretion. (Id. at p. 376.)
Defendant cites the dissenting opinion in People v. Zichwic (2001) 94 Cal.App.4th 944, 961, for the proposition that when a trial court erroneously concludes that there is no legal basis to vacate a prior conviction, the matter must be remanded to the trial court so that it may properly exercise its discretion. The present case is distinguishable in that all the trial court did was accurately state that it “would have to have a basis to grant the motion.”
Defendant cites People v. Garcia (1999) 20 Cal.4th 490, 503 (Garcia), and People v. Strong (2001) 87 Cal.App.4th 328, 341 (Strong), for the proposition that since both of defendant’s prior strike convictions arose from a single case, that fact supports the court’s exercise of its discretion in favor of striking one of his strikes. However, both Garcia and Strong upheld the respective trial courts’ exercise of their discretion in striking one or more of the defendants’ prior strike convictions, whereas in the instant case the trial court exercised its discretion against striking one of defendant’s prior convictions. Furthermore, the affirmances in Garcia and Strong were based, only in part, on the fact that “defendant’s prior convictions all arose from a single period of aberrant behavior for which he served a single prison term.” (Garcia, at p. 503; see also Strong, at p. 341.) Here, defendant asks us to rely solely on that factor to reverse the trial court’s exercise of its discretion not to strike one of defendant’s prior convictions.
Moreover, in cases dealing specifically with the issue of whether a trial court abuses its discretion in failing to strike one or more of a defendant’s multiple prior strike convictions arising from a single case, courts have typically applied a section 654 analysis, i.e. whether the separate offenses arose from the same act. (People v. Burgos (2004) 117 Cal.App.4th 1209, 1213 (Burgos); See also People v. Benson (1998) 18 Cal.4th 24, 36, fn. 8; Carmony, supra, 33 Cal.4th at p. 374; People v. Sanchez (2001) 24 Cal.4th 983, 993.) Here, defendant’s prior strike convictions were for first degree burglary and assault on a peace officer with a firearm. Though the record is not clear as to the factual circumstances of those offenses, it would appear that they would be deemed separate acts under a section 654 analysis, i.e. defendant’s choice to assault a peace officer with a firearm clearly constituted a separate event arising after he was caught or pursued for having committed the burglary. In any event, defendant’s neglect in establishing the factual circumstances of the prior strike offenses demonstrates that he has failed to carry his burden of establishing the trial court abused its discretion. Likewise, the Burgos court did not base its conclusion that the trial court abused its discretion in failing to strike a prior strike conviction solely on the fact that the defendant’s two prior strike convictions were based on a single act. Rather, that court also observed the defendant’s current offenses were not serious and that his criminal history was not significant. (Burgos, at p. 1216.) Obviously, the trial court here found otherwise.
Defendant’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop) is misplaced. Bishop predates People v. Williams (1998) 17 Cal.4th 148, and consequently did not apply the appropriate standard: whether the defendant should be deemed to fall outside the scheme’s spirit. The court here implicitly determined that defendant was precisely the type of person who fell within the purview of the “Three Strikes” law. Also, Bishop relied heavily on the state Supreme Court’s decision in People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968 (Alvarez), for the scope of the trial court’s right to exercise its discretion. Also, the Alvarez court addressed a different issue with a different scope of discretion: the trial court’s unqualified discretion to determine whether to reduce a wobbler to a misdemeanor for purposes of the Three Strikes law. It contrasted that discretion with the qualified discretion at issue here under section 1385, subdivision (a), which, it acknowledged, was an example of a statute that “contain[ed] express qualifications delineating, and thereby restricting, the particular exercise of discretion.” (Alvarez, at p. 977.)
Defendant’s recent marriage, newly professed dedication to living a law-abiding life, and a potential upper-term sentence of nine years in prison if the court struck one of defendant’s priors simply does not sufficiently overcome the trial court’s valid exercise of its discretion in electing not to strike one of defendant’s prior convictions. Thus, the court fully comprehended its discretion and did not abuse that discretion in denying defendant’s Romero motion.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., McKINSTER, J.