Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC807962.
Premo, J.
Defendant Tranquilino Armando Alvarez was convicted by a jury of one count of vehicle theft (Veh. Code, § 10851, subd. (a)). The jury was unable to reach a verdict on a second charge of receiving stolen property (Pen. Code, § 496) and the court declared a mistrial on that count. In a bifurcated proceeding, the trial court found true the allegation that Alvarez had suffered a prior serious felony conviction pursuant to sections 667, subdivisions (b) through (i) and 1170.12.
All further unspecified statutory references are to the Penal Code.
On appeal, Alvarez raises multiple arguments. First, he contends the trial court erred in responding to a question from the jury regarding knowledge as it relates to the crime of vehicle theft, and in the event this argument is considered forfeited due to trial counsel’s failure to object below, his trial counsel was ineffective. Second, Alvarez claims there was insufficient evidence to convict him of vehicle theft. Third, his constitutional rights were violated by the trial court’s failure to inquire into his reasons for asking to represent himself at trial. Fourth, Alvarez argues that the trial court prejudiced his effort to make a Romero motion by denying his motion to continue the hearing. Fifth, Alvarez contends that the trial court erred in denying his Romero motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
We disagree with each of these arguments and shall affirm.
I. Factual and Procedural Background
On June 8, 2008, at approximately 7:45 p.m., San Jose Police Officer Ken Muto was on patrol with his partner Officer Jeff Stults near Poco Way in San Jose. Officer Muto observed a 1991 Honda Accord partially backed into a parking spot in a parking lot. A man, later identified as Alvarez, was sitting in the driver’s seat of the vehicle, with the front windows rolled down. As the officers approached the vehicle, Alvarez looked at them, got out of the vehicle and walked away.
Officer Muto got out of his patrol vehicle and checked the license plates and the vehicle identification number (VIN) on the Accord. Though the license plates were registered to a Honda Accord, they were registered to a different Honda Accord with a different VIN owned by someone named Ba Lai. In addition, Officer Muto observed that the front windows were rolled down, the doors were unlocked and there was a key partially inserted into the ignition. Based on his training and experience in the area of vehicle theft, Officer Muto believed that the Accord was stolen. He felt the hood of the Accord, which was “hot to the touch, ” indicating the vehicle had been driven recently.
Officer Muto knew that Honda Accords are among the vehicles that are most commonly stolen in San Jose, and older model Accords, such as the one in this case, are easy to steal because they can be started by narrow objects or even other vehicle keys. He testified that “it’s very common knowledge among people who steal vehicles that any sort of flat object or sharp object can be placed into the ignition [of a late-80s to mid-90s model Honda Accord] with a little bit of force and can break the interior part of the ignition and start the vehicle.” Officer Muto was able to start the Accord with the key that was inserted part-way into the ignition.
Officer Muto followed Alvarez into a nearby apartment complex, while Officer Stults remained with the vehicle. Alvarez was sitting in an exterior stairwell. Officer Muto asked him if the Accord was his vehicle and Alvarez replied that he “was borrowing it from a friend.” Officer Muto was about to ask some additional questions when he heard over his police radio that the Accord had been reported stolen. Alvarez was placed into custody.
The owner of the Accord, Braulio Maldonado, testified that he did not know Alvarez and had not given him permission to drive his vehicle. He reported his vehicle stolen on May 14, 2008, approximately three weeks prior to Alvarez’s arrest. When he last saw the vehicle, the doors were locked, and he had the key. When he picked up the vehicle at the parking lot, he noticed there was damage to some plastic trim around the passenger side window, and the ignition was damaged such that any key would start the vehicle.
Ba Lai testified that the license plates found on the stolen Accord were taken from his 1991 Honda Accord, though he had not noticed that the license plates had been swapped out on his vehicle.
The defense rested on the state of the evidence.
After the jury was instructed and retired to deliberate, Alvarez waived his right to a jury trial on the charged prior strike allegation.
On September 10, 2008, the jury found Alvarez guilty of vehicle theft (Veh. Code, § 10851, subd. (a)) but deadlocked on the charge of receiving stolen property (§ 496). The trial court declared a mistrial on the latter charge and continued the matter to September 12, 2008, for a court trial on the prior strike allegation.
At the October 21, 2008 bifurcated court trial, the trial court denied Alvarez’s Faretta motion as untimely and found true the allegation that Alvarez had a prior serious felony conviction which counted as a strike pursuant to sections 667, subdivisions (b) through (i) and 1170.12.
The record shows that the court trial was continued to October 7, 2008, because defense counsel was unavailable due to a medical emergency. It was subsequently continued to October 21, 2008, for undisclosed reasons.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
On November 7, 2008, the trial court denied Alvarez’s Marsden motion. Alvarez’s second Faretta motion and motion for a continuance of his sentencing hearing were granted on December 18, 2008.
People v. Marsden (1970) 2 Cal.3d 118.
On January 23, 2009, the trial court denied Alvarez’s motion for a further continuance of his sentencing and denied his Romero motion. Alvarez was sentenced to a total term of two years and eight months in prison, consisting of the mitigated term of 16 months doubled to 32 months under the three strikes law.
Alvarez timely appealed.
II. Discussion
A. Response to jurors’ question regarding knowledge
During deliberations, the jury sent the following note to the court: “Regarding Count 1--Is there a difference between knowing the car was stolen is [sic] different or separate from driving and taking the car. [¶] Are we convicting or not that [Alvarez] STOLE the car, or are we convicting or not that [Alvarez] knew he was using a stolen car.”
The court conferred with counsel in chambers, and placed a discussion of the response to the jurors’ question on the record: “I’ve received a note from the jury, Jury Note Number 1. And we’ve all read it. And I’m going to write a response on the note and send it in to them. [¶] Number 1, I’m going to say, ‘Knowledge is separate from taking or driving, and taking and driving are alternatives.’ [¶] Is that agreeable?” Defense counsel responded, “Yes, your Honor.”
Alvarez contends that the trial court erred in its response, as it misled the jury into believing that “knowledge” is not an intrinsic part of the offense of vehicle theft, especially in regards to the driving alternative. He claims that a person can only be guilty of violating Vehicle Code section 10851 for driving a stolen vehicle if he drives a vehicle with knowledge that it is, in fact, stolen.
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (Italics added.)
“A defendant may forfeit an objection to the court’s response to a jury inquiry through counsel’s consent, or invitation or tacit approval of, that response.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1048.)
Here, the record shows that Alvarez’s counsel was present when the trial court announced that it had received a note from the jury, that the court and counsel for both sides had read the note, and finally, outlined its proposed response to the jury’s question. When the court asked if its proposed response was acceptable, Alvarez’s counsel said, “Yes, your Honor.” Consequently, Alvarez has forfeited any objection to the court’s response.
Even assuming, however, we were to overlook the failure to object, the claim is without merit.
“To establish a defendant’s guilt of violating Vehicle Code section 10851, subdivision (a), the prosecution is required to prove that the defendant drove or took a vehicle belonging to another person, without the owner’s consent, and that the defendant had the specific intent to permanently or temporarily deprive the owner of title or possession.” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.) Knowledge that the vehicle was stolen is not an element of the offense, though it “may constitute evidence of the defendant’s intent to deprive the owner of title and possession.” (Ibid.) Consequently, the trial court’s response to the jury’s question that “Knowledge is separate from taking or driving, and taking and driving are alternatives, ” was not a misstatement of the elements of the offense, nor did it remove the issue from the jury’s consideration.
Because we find that there was no error in the court’s response, we also reject Alvarez’s alternative argument that his counsel provided ineffective assistance by failing to object to that response.
B. Sufficiency of the evidence
Alvarez contends that his conviction for violating Vehicle Code section 10851 must be overturned because there was insufficient evidence to establish that he took the vehicle, drove the vehicle or had knowledge that the vehicle was stolen.
1. Standard of review
The test used to determine a claim of insufficiency of the evidence is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, 577.) In making this determination, we review the whole record, viewing the evidence in a light most favorable to the judgment, and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) “Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.” (People v. Pierce (1979) 24 Cal.3d 199, 210.)
2. Analysis
Alvarez’s argument is premised on the absence of any direct evidence to show that he either took or drove the Accord. No witness testified that they saw Alvarez take or drive the vehicle. Officer Muto testified that the engine was not running when he approached the vehicle, although the hood of the vehicle was hot to the touch. However, it was early evening on a summer day which could also explain the temperature of the vehicle’s hood. The key, though not fully inserted into the ignition, was a normal key, and the ignition had not been obviously tampered with, nor was there any damage to the exterior of the vehicle which would show it had been broken into.
“Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, ... is guilty of a public offense.” (Veh. Code, § 10851, subd. (a).) However, driving or taking of a vehicle “as any other fact, may be proven by circumstantial as well as direct evidence.” (People v. Ragone (1948) 84 Cal.App.2d 476, 479.)
In People v. Green (1995) 34 Cal.App.4th 165, the police followed defendant after determining that he was driving a vehicle which had been reported stolen four days prior. (Id. at p. 172.) Defendant, upon noticing the police, pulled into a parking lot, and exited the vehicle without shutting off the ignition. (Ibid.) When they examined the vehicle, officers discovered a screwdriver in the ignition, and upon detaining defendant, he claimed someone had given him the vehicle, but did not provide that person’s name or address. (Ibid.) Defendant was convicted of unlawful driving of a vehicle, but was acquitted of a charge of receiving stolen property.
In this case, there was ample evidence to support the conviction. The owner, Maldonado, testified that he did not know Alvarez and never gave him permission to drive his vehicle. Maldonado testified that when he last saw the vehicle, it was locked and he had the keys. When he retrieved it, there was damage to the vehicle’s window, and the ignition was damaged so that any key, such as the key that Alvarez left in the ignition, would now start the vehicle.
When officers first saw Alvarez, he was sitting in the vehicle with the doors closed. Alvarez saw the patrol vehicle approaching, got out of the vehicle and walked away, leaving the windows rolled down and a key (to a different vehicle) in the ignition. No one else was in the area. The hood of the vehicle was hot to the touch. When encountered by Officer Muto, Alvarez said that he had borrowed the vehicle from a friend, which implies that he had driven the vehicle to the parking lot. Upon checking the license plates and VIN, officers determined that the license plates on the Accord had been swapped with those stolen from a different Honda Accord.
In addition, Officer Muto testified that it was “common knowledge among people who steal vehicles” that the ignition on a Honda Accord--such as the one in this case--can be easily defeated by inserting any flat or sharp object, such as a different vehicle key, into it with a little force.
Based on the totality of the circumstances, we think there was ample evidence that would allow the jury to infer that Alvarez either intended to deprive the owner of the Accord of possession of the vehicle, whether permanently or temporarily, or that Alvarez intentionally drove the vehicle without the consent of the owner.
C. Denial of initial Faretta motion
Alvarez claims the trial court violated his constitutional rights to present a defense by failing to inquire into his reasons for requesting to represent himself at the bifurcated court trial on his prior conviction.
1. Relevant facts and procedure
On October 21, 2008, the date set for the court trial on Alvarez’s strike prior allegation, defense counsel advised the court that Alvarez “wishes to go pro per and represent himself.” The court responded, “Well, I think... in terms of the trial on the priors, if that would require a continuance, I’m not inclined to do that. And I don’t think he’s entitled until the trial is over. And this is part of the trial. If he wishes to represent himself at sentencing, I would allow him to do that. [¶] So we’ll deal with that at another time. Right now I want to continue with the trial. I don’t think the request is timely.”
The following colloquy took place between the court and Alvarez.
“THE COURT: And I’m just wondering, ... why Mr. Alvarez didn’t request going pro per previously, because he could have had his trial on the priors much sooner.
“THE DEFENDANT: I just decided to do this, ma’am.
“THE COURT: Okay. Well, do you want to tell me your reason?
“THE DEFENDANT: There’s issues that I believe I want addressed. And...
“THE COURT: And during the trial on the priors?
“THE DEFENDANT: I believe so.
“THE COURT: Are you dissatisfied with your attorney?
“THE DEFENDANT: No, I’m not dissatisfied with her.
“THE COURT: Okay. Well, I--I think we will proceed with the trial on the priors. And then, if you wish to represent yourself at sentencing, you can--we’ll have you fill out a Faretta waiver, and you can do that. I’ll relieve your attorney.
“THE DEFENDANT: Okay.”
After the district attorney began presenting evidence on Alvarez’s prior conviction, the court interrupted and addressed Alvarez again, as follows:
“THE COURT: I’m assuming that the defendant is not prepared to represent himself today but wants a continuance. Would that be right?
“THE DEFENDANT: It’s--it’s possible.
“THE COURT: That you want a continuance?
“THE DEFENDANT: Possibly.”
2. Analysis
A criminal defendant has a federal constitutional right to self-representation, as recognized in Faretta, supra, 422 U.S. 806. To properly “ ‘invoke the constitutionally mandated unconditional right of self-representation’ ” in a criminal trial, the defendant must unequivocally assert “ ‘that right within a reasonable time prior to the commencement of trial.’ ” (People v. Wright (1990) 52 Cal.3d 367, 409, citing People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham).) The timeliness requirement enables the trial court to investigate the reasons for the motion and to weed out Faretta requests that are intended only to unjustifiably delay and obstruct the orderly administration of justice. (Windham, supra, at p. 128, fn. 5.) “For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request.” (Ibid.) “When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court’s discretion.” (People v. Bradford (1997) 15 Cal.4th 1229, 1365.)
In exercising its discretion in such cases, the trial court generally should consider such factors as “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” (Windham, supra, 19 Cal.3d at p. 128.)
Alvarez contends that the trial court erred in failing to inquire into the factors outlined in Windham, and thus concedes, as he must, that his request was not timely. Consequently, we must determine whether the trial court abused its discretion in denying his request for self-representation. We conclude it did not.
Alvarez made his Faretta motion the very day the court trial on his alleged strike prior was set to commence, more than a month after the jury found him guilty of one count of vehicle theft. Though the court initially appeared to reject the request out of hand, it subsequently made a further inquiry. When asked why Alvarez had not made the request for self-representation sooner, Alvarez said, “I just decided to do this, ma’am.” When asked about his reasons for making the request, he said, “There’s issues that I believe I want addressed.” He specifically denied being dissatisfied with his counsel, however. Given the vagueness of Alvarez’s answers and the apparently spontaneous nature of his request, the trial court was justified in its belief that Alvarez was simply attempting to further delay the proceedings. The trial court’s suspicions about Alvarez’s true motivations were subsequently confirmed when it asked Alvarez if he would want a continuance were he allowed to represent himself and Alvarez offered an equivocal “Possibly” in response.
In light of these factors, we conclude the court did not abuse its discretion when it denied Alvarez’s untimely Faretta motion.
D. Denial of continuance
Alvarez argues that the trial court abused its discretion by denying his motion to continue his sentencing hearing, and that the denial of the motion prejudiced his efforts to make a successful Romero motion.
1. Relevant facts and procedure
On December 18, 2008, the trial court addressed Alvarez’s renewed Faretta motion and asked when he would be prepared for the sentencing hearing. Alvarez asked for a continuance of “at least 45 days, ” but when the court demurred, pointing out that Alvarez had already had a substantial amount of time to prepare for his sentencing hearing, Alvarez reduced his request to “[a]t least 30 days.” After noting that the guilty verdict had been returned on September 10, the court asked Alvarez what he had been doing in the interim, and Alvarez replied that he had a limited ability to do legal research. The court indicated that if Alvarez could, in fact, be ready for sentencing in 30 days it would grant his Faretta motion; otherwise, it would deny it as an improper delaying tactic. Alvarez responded that 30 days “will be fine.”
Alvarez expressly confirmed that he was asking for permission to represent himself at the sentencing hearing and file his own Romero motion. The court then explained that he would have to prepare to file a Romero motion “in a timely fashion” before sentencing and that the motion “isn’t a motion to overturn your prior.” The court indicated that Alvarez did not need to do extensive legal research to bring a Romero motion, and cautioned that it would not grant him any further continuances.
The clerk’s transcript on appeal contains several motions signed by Alvarez on January 14 and 15, 2009, including a motion to continue his sentencing hearing. The documents were all stamped “received, ” but were not filed by the clerk. In the motion to continue, Alvarez requested a continuance of 60 days in order to “adequately prepare his Romero motion... [and] motion for new trial.” Alvarez submitted a declaration in support of the motion in which he stated he was trying to gather evidence in support of the Romero motion, such as “letters from his [sic] family, the plea colloqoy [sic] from Oregon” and was researching how to bring a motion to correct the probation report.
At the January 23, 2009 sentencing hearing, the court asked Alvarez if he wished to make any comments before sentence was imposed. When Alvarez replied he was “under the impression that this was scheduled for a Romero hearing, ” the court noted that he had filed no such motion. Alvarez said he had tried to file a motion for a continuance, but the court reminded him that he had been warned that he could not use his pro per status to obtain continuances or special treatment. Alvarez asked to submit evidence, and the court allowed him to do so, but stated “[Y]our continuance motion is denied.”
2. Analysis
“A continuance in a criminal case may be granted only for good cause. (§ 1050, subd. (e).) Whether good cause exists is a question for the trial court’s discretion. [Citation.]... While a showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence [citation], the trial court may not exercise its discretion ‘so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 450.) “In reviewing the decision to deny a continuance, ‘[o]ne factor to consider is whether a continuance would be useful.’ ” (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) “Absent a showing of an abuse of discretion and prejudice, the trial court’s denial does not warrant reversal.” (People v. Doolin, supra, at p. 450.)
Here, Alvarez’s motion for continuance sought additional time for him to purportedly gather letters from his family, obtain the plea colloquy from Oregon and to research how to bring a motion to correct the probation report. The record does not demonstrate that Alvarez exercised due diligence in trying to obtain the documents in question, nor is there any explanation as to why they were necessary for the consideration of his Romero motion. Alvarez also does not identify any of the supposedly “untruthful” information in the probation report which needs correction.
Alvarez, who was allowed to begin representing himself on December 18, 2008, was warned both that he would need to timely file a Romero motion prior to the sentencing hearing, and that he would not be granted any further continuances. He was directed to file that motion by January 16, 2009, and thus had approximately one month to complete it, which would seem to be ample time. The trial court’s denial of a continuance was neither arbitrary nor a violation of due process.
E. Denial of Romero motion
Alvarez contends that the trial court failed to exercise its discretion in ruling on his Romero motion in which he sought to strike his prior conviction from Oregon state, and that his sentence must be overturned.
1. Relevant facts and procedure
In his interview with the probation department, Alvarez continued to deny stealing the vehicle, though he expressed remorse for the victim. He denied having an alcohol or substance abuse problem. At the time of the interview, Alvarez was 39 years old, single with four children, had completed the eighth grade and had been self-employed as a contractor. He was found to be ineligible for probation with respect to the current offense.
The children were aged 16, 17, 18 and 21, and all four children lived with their mother.
The probation report noted that the prior Oregon conviction was for an “[a]ssault in the first degree with a firearm, ” for which Alvarez was sentenced to 90 months, or seven and a half years, in prison and that he was released on parole on March 7, 2007. Alvarez was also in “violation of his [Oregon] parole for absconding and leaving the state without permission, ” and an Oregon petition seeking his extradition was pending. According to his parole agent, he had violated parole numerous times since his 2007 release, and his performance on parole had been “unsatisfactory.”
Alvarez maintained that the prior conviction arose out of a situation in which he was acting in self-defense. He was attacked by two men, one with a knife and one holding a bottle. The man with the knife had previously threatened Alvarez’s life. Alvarez told the men to back up, and when they did not do so, he shot the man holding the knife.
Alvarez also had three misdemeanor convictions in Santa Clara County for theft, possessing stolen property and driving without a license. He had a felony conviction in Texas for possession of marijuana, as well as a conviction for resisting arrest and for certain traffic violations. In Oregon, Alvarez had two felony convictions for assault in the first degree with a firearm and for evading a peace officer, along with three misdemeanor convictions for reckless endangering, reckless driving and fraudulent use of a credit card. Since 1988, Alvarez had been incarcerated “on and off... in several different states.”
The probation report identified no mitigating factors and recommended the midterm of four years in prison.
At the sentencing hearing, after denying Alvarez’s request for a continuance, the court asked Alvarez to address the recommended sentence and provide reasons why it should not be imposed. Alvarez said he had “been diligently working on drafting a Romero motion, ” and indicated he had brought along some supporting evidence. The court allowed Alvarez to show his evidence to the prosecutor and to the court, and also said it would accept an oral Romero motion.
Alvarez said he had been attempting to gather letters from his family and “trying to draft evidence in support of the motion in order to show a miscarriage of justice.” The court asked if Alvarez knew what a Romero motion was, and Alvarez responded, “[A]s far as from what I’ve understood from the research, is that--that I have to be able to show a reasonable judge to grant the Romero motion in an interest of justice.” The court explained: “You have to show that because of your background, history, and other factors which are relevant, that you should be taken outside of the--the three-strikes scheme. So let me hear from you. What is it about your background, experience, future prospects, the nature of the crime you committed in this case, and the nature of the strike... that makes you not qualified to be sentenced as a striker?”
Alvarez said, “I’ve been denied a fair trial.” The trial court responded that it was not interested in hearing about whether or not Alvarez believed he received a fair trial, but that Alvarez’s comments should be directed to “what is it about you and... the acts that you committed that takes you outside the spirit of the [three] strikes law?”
Alvarez then advised the court that he supported his four children as best he could, when he was not incarcerated. The court clarified that Alvarez’s children were between the ages of 16 and 23 at the time of sentencing, and that he had not been employed since he was last sent to prison in 1999. Alvarez said that he tried to be a positive influence on his children and his grandchildren and he participated in Native American religious ceremonies, such as smudging. In response to the court’s questioning, he admitted that he did not obtain a GED while incarcerated, though he did complete drug and alcohol programs.
Alvarez presented an affidavit from his Oregon defense counsel who asserted that Alvarez’s conviction for assault in the first degree with a firearm was a “self-defense case.” Alvarez claimed that his Oregon conviction was not supported by the facts and the elements of that crime were different than those needed for a conviction in California. He also argued that he was not advised that by pleading guilty to the Oregon offense that it could be used as a strike in California.
The court denied the Romero motion, stating, “I don’t think that the defendant has established anything that would satisfy the line of cases which allows the court to strike a strike when it’s in the interest of justice. [¶] If it were [sic] looking for someone who has had a long history of being crime-free, we certainly can’t say that that is Mr. Alvarez’s description. His employment history, his parenting history, his own history of self improvement do not reflect someone who should be taken outside of the strikes law. [¶] He hasn’t made any major contributions to the overall community in terms of charitable work or volunteer work that I can ascertain other than pursuing his Native American religious activities. And I don’t know if that includes personal worship or doing things in kindness to other people. He did not describe it that way.”
The trial court imposed the mitigated term of 16 months, as that was what the prosecutor requested, and doubled the sentence because of the strike prior.
2. Analysis
A defendant has the right to seek review of a court’s decision not to strike a prior conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The court’s decision is reviewed under the abuse of discretion standard, and the burden on defendant is to show that the court’s decision was “ ‘ “irrational or arbitrary.” ’ ” (Id. at p. 376.) In reviewing a ruling on a motion to strike priors under section 1385, the court “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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
“[A]n appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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.)
On this record, Alvarez cannot show that the refusal to grant his Romero motion was arbitrary or irrational. According to the probation report, he had “been incarcerated on and off since 1988 in several different states.” Following his release from prison in Oregon in 2007, he had violated parole numerous times before he absconded to California and committed the current offense. Though he only had an eighth grade education, Alvarez had not obtained a GED during any of his prior incarcerations, thus demonstrating his disinterest in taking advantage of opportunities to improve himself.
The trial court afforded him ample opportunity to discuss every possible factor he believed would support his motion. Though Alvarez complains that the trial court engaged in “belittling and belligerent questioning” of him during the hearing, we find that the trial court’s questioning was appropriately aimed at fully developing the pertinent facts. At the same time, since Alvarez had already exhibited a tendency to stray off topic, such as his reference to not having received a fair trial on his strike prior and his challenges to the propriety of his Oregon conviction, the trial court’s questioning and interruptions served to focus Alvarez’s presentation on those matters relevant to the motion.
Consequently, the trial court did not abuse its discretion in denying the Romero motion.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.