Opinion
H045207
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. THANN VON, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on September 24, 2019 be modified as follows.
On page 1, the second full paragraph, beginning "Von raises . . ." shall be stricken and replaced with the following paragraph:
Von raises three claims on appeal. First, he contends the trial court erred by finding true an allegation that he had served a prior prison term after the underlying felony conviction had previously been reduced to a misdemeanor under Proposition 47. The Attorney General concedes the merit of this claim, and we accept the concession. We will strike the true finding on that allegation. Second, Von contends the trial court erred by denying his motion to dismiss the allegation of a prior strike conviction under Romero. Finding no abuse of discretion, we reject this claim. Third, Von contends we should remand to allow the court to decide whether to strike a prior serious felony enhancement. The Attorney General concedes the merit of this claim, and we accept the concession. Accordingly, we will reverse the judgment and remand to the trial court.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On page 6, the last sentence of the second full paragraph, beginning "For the reasons above," shall be stricken, and the following paragraph shall be inserted following it:
Finally, Von contends he is entitled to retroactive application of the recently enacted Senate Bill 1393, which grants trial courts the discretion not to impose a five-year term for a prior serious felony conviction. He asks us to remand to the trial court to allow the court to exercise its discretion whether to strike the prior serious felony enhancement. The Attorney General concedes the merit of this claim. For the reasons set forth in this court's opinion in People v. Baldivia (2018) 28 Cal.App.5th 1071, the concession is well-taken. Accordingly, we will reverse the judgment and remand the matter to the trial court.
On page 6, the disposition shall be stricken and replaced with the following:
The judgment is reversed. On remand, the trial court shall strike the true finding on the allegation of a prior prison term for the conviction suffered in case No. C1230178, and the court shall hold a resentencing hearing at which it may exercise its discretion to strike the enhancement for the prior serious felony conviction.
Upon the filing of this modification order, Von's petition for rehearing filed October 1, 2019 is denied as moot. Dated:__________
/s/_________
Greenwood, P.J.
/s/_________
Premo, J.
/s/_________
Elia, J.
NOT TO BE PUBLISHED IN 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. (Santa Clara County Super. Ct. No. C1636671)
A jury found defendant Thann Von and a codefendant guilty on two counts of first degree robbery. The jury also found true allegations that Von was armed with a handgun, and the trial court found true enhancements alleging multiple prior convictions and prison terms. The trial court imposed a total term of 15 years eight months.
Von raises two claims on appeal. First, he contends the trial court erred by finding true an allegation that he had served a prior prison term after the underlying felony conviction had previously been reduced to a misdemeanor under Proposition 47. The Attorney General concedes the merit of this claim, and we accept the concession. We will strike the true finding on that allegation. Second, Von contends the trial court erred by denying his motion to dismiss the allegation of a prior strike conviction under Romero. Finding no abuse of discretion, we reject this claim. Accordingly, we will affirm the judgment as modified.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged Von and codefendant Chi Ung with two counts of first degree robbery. (Pen. Code, §§ 211, 212.5, subd. (a).) As to both counts, the information alleged Von was armed with a handgun in the commission of the offense. (§ 12022, subd. (a)(1).) The information further alleged Von had suffered a prior strike conviction, a prior serious felony conviction, and four prior prison terms. (§§ 667, subds. (a), (b)-(i), 667.5, subd. (b).)
Subsequent undesignated statutory references are to the Penal Code. --------
The jury found Von guilty as charged and found true both arming enhancements. After a bench trial, the court found true the prior convictions and prison term allegations. After denying Von's Romero motion, the court imposed a total term of 15 years eight months. The term consisted of eight years on count 1—equal to the middle term, doubled for the strike prior—plus a consecutive term of two years eight months on count 2, and five years for the prior serious felony conviction. The court struck the terms for all remaining enhancements.
B. Facts of the Offenses
John Cochell testified that he sold aquarium supplies and other pet-related items out of the garage of his house in Santa Clara. Among other things, he had an African grey parrot worth around $3,000 to $5,000.
On the afternoon of January 18, 2016, Melanie Jimenez went to Cochell's house to buy some pet supplies. She was reaching for her wallet to pay for them when two men—later identified as Von and Ung—came running into the garage. One of them had a gun. The man with the gun pointed it at Cochell, and both men demanded Cochell's bird. Cochell said the bird wasn't there. The men then demanded money from Cochell and Jimenez. Cochell gave them $800, and Jimenez gave them her wallet and phone.
The two men left, and Cochell followed them in his truck. Cochell followed their car for some distance and called 911 during the pursuit. Cochell described the men's appearance, and he could see the license plate number of their car. He later gave police a description of the men and their car.
Later that evening, police spotted the car parked at a motel in San Jose. They determined the car was registered to Von, who was sitting in the driver's seat. The police took him into custody and brought Jimenez and Cochell to the scene for a field show-up. Jimenez identified Von as one of the robbers, but Cochell did not recognize him.
II. DISCUSSION
A. Erroneous Finding of a Prior Prison Term
Von contends the trial court erred by finding true an allegation that he had served a prior prison term after the underlying felony conviction had previously been reduced to a misdemeanor under Proposition 47. The Attorney General concedes this claim, and we accept the concession. (See People v. Buycks (2018) 5 Cal.5th 857, 879, fn. 7 [the phrase "misdemeanor for all purposes" in section 1170.18, subdivision (k) means that those who successfully obtain resentencing of their felony convictions to misdemeanors under Proposition 47 may not be subsequently subject to a felony-based enhancement for that reduced conviction]; People v. Call (2017) 9 Cal.App.5th 856 [imposition of prior prison term enhancement after the underlying conviction was reduced to a misdemeanor would not comport with Proposition 47].) Accordingly, we will strike the trial court's true finding on that allegation.
B. Denial of Von's Romero Motion
Von contends the trial court erred by denying his motion to dismiss the allegation of a prior strike conviction under Romero. The Attorney General contends denial was not an abuse of discretion.
1. Background
After a bench trial, the trial court found true the allegation that Von had suffered a prior strike conviction for first degree robbery (§§ 211, 215, subd. (c)). Von then moved to dismiss the allegation under Romero, and the prosecution opposed it.
Von put forth three arguments to support his Romero motion. First, he described his traumatic personal history as a child refugee from Cambodia and the intellectual disabilities that resulted from it. Second, he asserted positive prospects for a sober, law-abiding life following his eventual release from prison. Third, he expressed remorse for the harm he caused to the victims of his offenses.
In denying the motion, the trial court cited multiple factors. First, the court noted the similarity between the instant robbery and Von's prior strike offense, in which he and a codefendant used a weapon to rob a woman who was walking on the street. Both offenses were violent, and the most recent offense indicated no decrease in the severity of Von's criminal conduct. Second, the court described Von's lengthy criminal record, which included eight felony convictions, 15 misdemeanor convictions, four violations of post-release community supervision, and three parole violations. Accordingly, the court declined to exercise its discretion to dismiss the prior strike allegation.
2. Legal Principles
The Supreme Court held in Romero that the trial court, on its own motion, is empowered under section 1385, subdivision (a) to dismiss prior felony conviction allegations (i.e., prior strikes) in cases brought under the law known as the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The court's discretion, however, is limited to instances in which dismissing such strikes is in the furtherance of justice, as determined by giving " ' "consideration both of the constitutional rights of the defendant, and the interests of society represented by the People . . . ." ' " (Id. at p. 530.) Thus, the court may not dismiss a sentencing allegation "solely 'to accommodate judicial convenience or because of court congestion' [citation], [or] . . . simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if 'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his [or her] present offenses,' and other 'individualized considerations.' [Citation.]" (Id. at p. 531.)
If the trial court dismisses one or more prior strikes, its reasons for doing so must be stated in an order entered on the minutes. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) Conversely, the trial court has no obligation to set forth its reasons for deciding not to dismiss a prior strike. (In re Large (2007) 41 Cal.4th 538, 546, fn. 6; see also In re Coley (2012) 55 Cal.4th 524, 560.) As our high court has explained: "The absence of such a requirement [that the court set forth its reasons for refusing to dismiss a prior strike] merely reflects the legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law." (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).)
The granting of a Romero motion is "subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts. [Citations.]" (Williams, supra, 17 Cal.4th at p. 162; see also People v. Garcia (1999) 20 Cal.4th 490, 503.) This abuse of discretion standard also applies to appellate review of the denial of Romero motions. (Carmony, supra, 33 Cal.4th at pp. 374-376; see also id. at p. 375: " 'Discretion is the power to make the decision, one way or the other.' ") It is the defendant's burden as the party attacking the sentencing decision to show it was arbitrary or irrational, and, absent such showing, there is a presumption that the court " ' "acted to achieve [the] legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.]" (Id. at p. 377.) Such a discretionary decision " ' "will not be reversed merely because reasonable people might disagree." ' " (Ibid.)
3. Denial of the Romero Motion Was Not an Abuse of Discretion
Von contends the trial court abused its discretion in denying his Romero motion. Von disputes the trial court's characterization of his offenses as violent, and he contends many of his past convictions were the result of his drug and alcohol addictions. Von also points to the remoteness in time of the prior strike conviction, which he suffered in 2005. Finally, Von highlights the mitigating effects of his cognitive disabilities, his difficult personal history, and his substance abuse problems.
We are not persuaded. "[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (Carmony, supra, 33 Cal.4th at p. 378.) Those circumstances do not appear on this record. The trial court accurately characterized Von's criminal history as "long and continuous," and the use of weapons in both the instant and the prior offense support the court's description of them as "violent." Second, as the Attorney General observes, apart from the unsupported claims of Von's trial counsel, the record holds no evidence of Von's remorse or significant efforts at rehabilitation and treatment for substance abuse. Even assuming the accuracy of trial counsel's assertions, however, the trial court acted within its discretion by finding these mitigating factors were outweighed by the aggravating circumstances. Accordingly, we perceive no abuse of discretion in the trial court's denial of the Romero motion. For the reasons above, we will affirm the judgment as modified.
III. DISPOSITION
The judgment is modified by striking the true finding on the allegation of a prior prison term for the conviction suffered in case No. C1230178. As so modified, the judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.