Opinion
E051505 Super.Ct.No. RIF146081
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES MATTHEWS BAYLARK, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Marvin E. Mizell and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Ernest Borunda (retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.), and Janice M. McIntyre (retired judge of the Riverside Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.), Judges. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Marvin E. Mizell and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant James Matthews Baylark of corporal injury to a cohabitant (count 1—Pen. Code § 273.5) and felony false imprisonment (count 2—§ 236.) Defendant thereafter admitted a prior felony strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). Defendant filed a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) inviting the trial court to strike his prior strike conviction. The trial court denied defendant's motion and sentenced him to an aggregate determinate term of seven years four months in state prison. On appeal, defendant contends the trial court erred in prohibiting him from introducing evidence regarding the victim's prior conviction and a temporary restraining order (TRO) that had been issued against her. Additionally, defendant maintains the trial court erred in prohibiting him from cross-examining the victim in regard to the aforementioned matters. Finally, defendant argues the trial court abused its discretion in declining to strike one of his prior strike convictions. We affirm the judgment in full.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
The victim testified that in September 2008, she had been living with defendant for approximately four years; they had one child together. Defendant began drinking on Monday, September 22, 2008, and continued until he went to sleep on Tuesday, September 23, 2008, at around 3:00 p.m. He had been playing his CDs loudly all night; neither she nor her child was able to sleep due to the noise. On Wednesday, September 24, 2008, at 8:00 a.m., defendant went to the store to obtain more alcohol; he continued to drink all day long. Sometime between 6:00 and 7:00 p.m., defendant returned to the liquor store to obtain more alcohol.
While defendant was out, the victim hid his CDs under the couch so that she and her child could get some sleep that night. Sometime after defendant returned, he asked the victim where his CDs were. She told them she did not know. He looked around for them, but could not find them. He asked her again where they were; she continued to tell him she did not know. Defendant finally threatened that unless she gave him his CDs he would "fuck [her] up." Although the victim was scared, she refused to tell him where the CDs were because she wanted to be able to sleep that night.
Defendant followed the victim around the house repeatedly demanding his CDs back. She went into the restroom; he followed. Defendant backed her into a corner of the restroom, preventing her exit; demanded his CDs again; slapped her in the face two or three times; and then hit her on the back of the head—his hand was "clench[ed] without [his] fingernails curled under." The strikes hurt the victim; she remained balled in the corner for between four and five minutes trying to protect her head. The victim attempted to escape underneath defendant's arm; however, he kept pushing her back. The victim eventually succeeded in escaping the restroom by sliding underneath defendant's arm.
The victim went into the living room, where she sat on the couch; defendant followed, continuing to demand his CDs back. Defendant told her he would continue to hit her until she gave him back his CDs; he then slapped her once again in the face. The victim got up off the couch and attempted to exit the home through the living room window. Defendant grabbed her shirt and pulled her down to the ground. The victim got up and ran for the back door.
When the victim arrived at the door it was locked. She unlocked it and opened it; however, defendant arrived and blocked her escape. The victim ran back to the living room window in another attempt to flee; defendant grabbed her again. He closed the window. She ran to the back door again; defendant grabbed her shirt, tearing her bra and shirt, and causing scratches on her chest. The victim was able to get away through the back door. Defendant came up behind her outside and slammed her down to the concrete. Noting people outside, the victim began yelling and screaming to get their attention. Defendant got up off of her, but continued to hold her; he told her to "shut up."
The victim was eventually able to run off to a local store where she called defendant's grandmother, Lucy Harris, from a pay phone. Harris called defendant's father to pick up the victim. Defendant's father picked the victim up about five to ten minutes later and took her to his house. From there, the victim went to her aunt's house sometime between 8:00 and 9:00 p.m. Her legs and chest hurt so she took some Tylenol and went to sleep.
The next morning, Thursday, September 25, 2008, the victim returned to the residence because she had left her child with defendant. She had previously called Harris and defendant's father requesting that they mediate her dispute with defendant; they arrived prior to the victim. Defendant would not let the victim in the house. Harris and defendant's father spoke with defendant for two hours while the victim waited outside. Harris and defendant's father eventually left without anything being resolved.
The victim then noticed two police officers across the street at a liquor store. She went over to them and told them defendant would not let her get her child. The officers went to the house and spoke with defendant; the victim entered the home with the officers. The officers eventually told the victim that she and defendant needed to work the situation out themselves or they would have to call child protective services. The officers then left.
The victim did not report defendant's acts of violence against her to the officers because she did not want him arrested. She merely wanted to get her child and leave.
Defendant told her she was free to leave, but she could not take her child. At some point while she was in the home that day, defendant hit her on the leg with his fist a couple of times and kicked her. Over the course of two days, the victim sustained bruising to her breasts, scratches on her chest that eventually left a scar, and bruises on her legs that lasted almost two months. She asked defendant to take her to the hospital; he refused. Defendant would not let her call the police.
Eventually, defendant allowed her to call her mother. She informed her mother that defendant had been beating her and asked her mother to come pick up her and the baby. She said she believed defendant had a gun. She then went into the back room, where she lay with her legs propped up; however, she fell out of the bed and lost consciousness. Her mother and sister arrived at the home; her mother then called the police. The victim passed out again; she awoke to observe the police and an ambulance on the scene. The victim's mother had called the police. The victim was taken to the hospital in the ambulance.
The victim's mother testified she saw something in defendant's hand that appeared to be a black gun; when one of the officers arrived, she informed him she saw defendant holding a firearm.
The treating physician's assistant testified the victim was treated for pain and swelling to her right hand and bruising to her thighs and chest. The victim also had scratches on her chest. She was prescribed painkillers.
Deputy Sheriff Joshua Menjarrez went to the hospital, where he spoke with the victim; she showed him her injuries, including a bruised right thigh and bruising to her chest. The victim told the deputy she had incurred the injuries when defendant slammed her to the ground, punched her, and hit her.
Sheriff's Investigator Walter Mendez testified he was dispatched to the home on September 25, 2008, at approximately 9:00 p.m., in response to a report that a suspect with a gun was holding a child hostage. When he arrived, the victim was frantic and appeared as if she had been involved in a physical altercation; she had difficulty walking, she was limping, and she reported that she was in pain. Nonetheless, the victim was primarily concerned with her child. The victim gave Investigator Mendez the residence's phone number, but when he called it, defendant hung up on him. Investigator Mendez called it again; this time he spoke with defendant for approximately 10 minutes before getting defendant to agree to come out of the residence. Defendant exited the residence. He smelled of alcohol. Investigator Mendez entered the home to find the child. Despite a thorough search of the home, no gun was ever recovered.
Harris testified the victim never told Harris defendant had hit her. Defendant's father testified that although the victim appeared upset, she did not appear to be physically harmed.
Defendant testified he was never physically abusive to the victim; he denied slapping or hitting her. He confirmed they had engaged in an argument partially related to her alleged theft of his CDs; however, he also alleged she had taken their bill money and 14 of his books. Defendant testified he had not been drinking, and opined that the victim and her mother wanted "to inflict serious injury upon me and possibly take my life." The victim fell on the concrete when she tripped while running outside. Defendant did not know how the victim sustained any of her injuries, although he told one of the officers he thought she fell out of bed, but did not actually see it occur. Defendant never saw the victim lose consciousness.
Riverside Sheriff's Detective Roman Pluimer testified he spoke with defendant that evening after defendant had been detained; defendant informed him the victim sustained her injuries when she fell out of bed.
DISCUSSION
A. EVIDENCE OF THE VICTIM'S PRIOR CONVICTION AND THE TRO
1. PROCED URAL HISTORY
Defendant contends the court abused its discretion in prohibiting him from introducing evidence that the victim had a prior conviction for violence against him, and that defendant had obtained a TRO against her. We hold the trial court acted within its discretion in denying defendant the opportunity to produce such evidence.
Prior to trial, the People filed a trial memorandum and motion in limine requesting, in part, that defendant be prohibited from adducing evidence that the victim had been arrested and pled guilty to misdemeanor fighting in a public place. (§ 415, subd. (1).) The People contended the evidence was irrelevant unless defendant raised a claim of self-defense; thus, they requested the defense be prohibited from even asking about the conviction. At a hearing on the motion, the court agreed: The victim's "character for violence is inadmissible absent a self-defense claim. I find that to be a correct statement of the law and until the defense can establish some claim of self-defense, that information will not be heard." The defense countered that it should be admissible for impeachment purposes if the victim testified. Defendant argued the TRO was relevant because it explained why defendant prohibited the victim from entering the home on the second day. Moreover, defense counsel asserted the victim testified at the preliminary hearing that she was never served with the TRO and that she had lied to one of the responding officers that there was no TRO. Finally, defendant asserted the victim told the police that defendant had attacked her in a previous incident, although she was the one convicted of the attack.
The People disagreed that the conviction had any relevance for impeachment purposes. Moreover, they contended any evidentiary value it did have was outweighed by its tendency to confuse the issues and consume an undue amount of time: "I think that—how it is going to play out is going to be a whole other trial on this 2006 incident. I believe that the victim is going to say no, that I hit him in self-defense. I don't think we can go any further than that because it would have to be the defendant taking the stand and saying no, she hit me. Maybe that will happen. I don't know. I don't think that to bring the officer to say, well, I arrested her then having her talk about what happened in court and then talking about this restraining order, I think all of that is just going to mislead the jury, confuse the jury. I don't think it is relevant . . . for impeachment purposes." The court ruled that no evidence of the TRO or conviction would be permitted for the purpose of demonstrating the victim's propensity for violence, but reserved ruling on whether the defense could impeach her testimony with such evidence.
The defense asked whether, if defendant testified, he would be permitted to say why he did not let the victim into the house on the second day, i.e., because he had a TRO against her. The court responded, "We're not doing a second trial. I told you that yesterday. We will not do a second trial. It's a[n Evidence Code section] 352 balancing. And I'm happy to take that process and I'll go through it. I won't give anybody carte blanche to go back into the 2006 case. That will not happen. That is an easy [Evidence Code section] 352 balancing. It is way too time consuming. That is not where we're going. I'll be happy to do what I said. Propensity does not come in and if it comes down to the issue of impeachment, we will talk about it." The court ordered that the contents of the TRO would be appropriate for impeachment purposes, but the order and the application in support of it would not be admissible. The court further noted that the victim would be ordered to stand by to testify for impeachment purposes should defendant testify.
After the victim testified on direct, defense counsel argued he should be allowed to cross-examine her on her past conviction because she had suggested during her testimony that defendant had beaten her on previous occasions. Additionally, he argued that he should be permitted to confront her with statements made in the application for the restraining order. The court ruled against defendant: "There is not a thing that would allow you to go into that at this point in time. Nothing. Zero."
2. DISCUSSION
"We review a trial court's exclusion of evidence for abuse of discretion . . . ." (People v. Gutierrez (2009) 45 Cal.4th 789, 827.) "'Where . . . a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation]" (Id. at p. 828.)
"Evidence Code section 1101, subdivision (a) provides that 'evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion.' Evidence Code section 1103, subdivision (a)(1) provides an exception to Evidence Code section 1101, subdivision (a) when a defendant offers evidence regarding the character or trait of a victim 'to prove conduct of the victim in conformity with the character or trait of character.' Of course, the trial court may exclude otherwise admissible evidence pursuant to Evidence Code section 352 if admitting the evidence would have confused the issues at trial, unduly consumed time, or been more prejudicial than probative. [Citations.] The trial court must always perform its gatekeeping function pursuant to Evidence Code section 350 to exclude evidence that is irrelevant." (People v. Gutierrez, supra, 45 Cal.4th at pp. 827828.)
Other than for impeachment purposes, neither below nor on appeal does defendant clearly explain how evidence of the victim's prior conviction was relevant in the instant case. He contends the evidence would have discredited the victim's version of the incident, would have demonstrated the victim was the aggressor, and would have shown their relationship was combative. However, there was no evidence adduced at trial that the victim was the aggressor. Defendant never testified the victim was the aggressor; his defense was that he had not physically assaulted the victim whatsoever, not that he had been forced to defend himself against her aggression. "Where no evidence is presented that the victim posed a threat to the defendant, exclusion of evidence regarding the victim's propensity for violence is proper." (People v. Gutierrez, supra, 45 Cal.4th at p. 828.)
In People v. Hoyos (2007) 41 Cal.4th 872, the trial court denied the defendant's request to introduce evidence of the victim's propensity for violence or prior firearm use. (Id. at pp. 911-912.) The trial court found that in order for a "victim's propensity for violence to be relevant, there must be some evidentiary support for a self-defense-type theory that the defendant perceived the . . . victim as presenting an immediate threat." (Id. at pp. 912-913.) The appellate court concluded the trial court acted within its discretion in denying admission of the propensity evidence where the facts adduced at trial failed to show the victim presented any threat to the defendant whatsoever. (Id. at p. 913.) Here, there was no evidence the victim posed any threat to defendant. Moreover, the evidence did not discredit her version of events. Simply because she had a prior conviction for fighting with defendant did not mean defendant could not or would not have hit her. Finally, if the evidence of her prior conviction would establish that their relationship was combative, it is not altogether obvious this would inure in defendant's favor. Indeed, if such an inference could be drawn, it could just as reasonably be deemed as further evidence that defendant beat the victim, i.e., their relationship was mutually combative. Thus, the evidence of the victim's prior conviction was irrelevant. The court acted within its discretion in excluding evidence of the victim's prior conviction.
Likewise, the TRO and the application in support of it were irrelevant to the issues at trial. Defendant was not charged or convicted with prohibiting the victim from entering the home. The fact he obtained a TRO against the victim does not compel or even affect a determination regarding whether he committed the charged acts of physical abuse against the victim. The court acted within its discretion in prohibiting defendant from adducing evidence of the TRO and the application in support of it.
B. EVIDENCE OF THE VICTIM'S PRIOR CONVICTION AND THE TRO FOR PURPOSES OF IMPEACHMENT
Defendant contends the trial court erred in prohibiting him from cross-examining the witness regarding her prior conviction and the TRO issued against her. We hold the trial court acted within its discretion.
"It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination. [Citation.]" (People v. Farnam (2002) 28 Cal.4th 107, 187.) "Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' [Citation.] In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]" (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
First, it is not at all clear the offense for which the victim was convicted would qualify as one for which impeachment would be permitted. In Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566, in discussing whether the public defender's office should be disqualified from representing the defendant because it had previously represented a witness in the case, we noted the witness "had originally been charged with a crime of moral turpitude—to wit, misdemeanor spousal abuse under . . . section 273.5 . . . but had eventually been convicted only of disturbing the peace. (§ 415.) The prosecutor correctly pointed out that the conviction, as a misdemeanor, could not be used to impeach [the witness] (Cf. Evid. Code, § 788, on impeachment by felony convictions.) However, he reasoned that the underlying conduct could be used for impeachment if it involved 'moral turpitude.' [Citation.] He further informed the court that, in fact, [the witness] had 'pushed and shoved' the victim so that the offense did involve moral turpitude, and therefore argued that the public defender would have a conflict in using information about the offense 'against' [the witness]." (Id. at p. 1569, first italics added, fns omitted.) Here, the record does not reflect that defendant provided the court with any information regarding the underlying behavior for which the victim was convicted, let alone the statute on which that conviction was based. Rather, the People provided the only information about the conviction, indicating the victim had been arrested for domestic violence (§ 273.5), but pled guilty to a misdemeanor under section 415. No evidence regarding the underlying conduct was produced below. Thus, because her conviction was for a misdemeanor, and we have no information regarding what behavior supported her conviction, we can make no determination that her conduct involved moral turpitude. There is simply no evidence in this record that cross-examination on the victim's prior conviction would impeach her testimony on direct.
Second, the court had legitimate concerns that permitting impeachment on the victim's prior conviction would devolve into a retrial of that case: "We're not doing a second trial." Indeed, the People proposed that questioning on the conviction would inherently involve the victim's testimony that she "hit him in self-defense." This, in turn, would result in defendant's testimony regarding the prior incident. Additionally, the People suggested it would then be compelled to call the arresting officer in the previous case to testify. This supports the court's ultimate conclusion that permitting such cross-examination would be outweighed by the danger that it would unduly consume time and confuse the jury. Also, we do not see how the victim's previous conviction would have reflected negatively on the veracity of her testimony. In other words, simply because the victim had previously been convicted of an offense against defendant did not undermine her testimony that defendant had physically abused her during the instant incidents. Furthermore, defendant was able to impeach the victim's version of events with his own, his father's, and his grandmother's testimony; as well as the testimony of one of the officers the victim had approached at the liquor store the day after the first incident (see fn. 2, ante). Finally, from a review of all the evidence provided below, both permitted and excluded, we cannot say the prohibition on this line of cross-examination would have resulted in a significantly different impression of the victim's credibility.
For all the above reasons, cross-examination on the TRO and application in support of it was equally within the court's discretion. Although, evidence that the victim lied to one of the responding officers regarding the existence of the TRO against her could conceivably impeach her testimony, the danger that such a line of questioning would devolve into a mini trial on the couple's previous altercations posed a very real threat that the value of the evidence was outweighed by other concerns relevant to the court's Evidence Code section 352 balancing test. The trial court acted within its discretion by taking seriously its gatekeeping function in excluding evidence substantially outweighed by other concerns.
C. ROMERO MOTION
Defendant maintains the court abused its discretion in declining to strike defendant's prior strike conviction. We hold the court acted within its discretion.
Defendant initially filed a motion to dismiss the prior strike allegation pursuant to Romero prior to trial. The court denied the motion expositing, "I don't believe sufficient time has elapsed . . . from release from custody to the commission of the new offense. And, further, I don't believe that this is a defendant that falls outside of the three-strikes legislation, therefore, the motion is denied without prejudice." After the jury rendered its verdict, defendant filed another Romero motion. As reasons supporting the striking of defendant's prior strike conviction, defendant noted that he was convicted as a juvenile for his previous strike conviction, that he remained free from felony conviction for the ensuing 12 years, that he was the sole supporter for his family, that he was enrolled in a community college, and that he was in the process of completing articles of incorporation and bylaws for a non-profit foundation he was forming to help ex-felons. In opposition, the People noted that while defendant was a juvenile when he committed the prior offense, he was convicted as an adult. Moreover, the People noted the circumstances of that offense: defendant had pointed a shotgun at a store clerk while his compatriot bound the clerk with electrical tape. Defendant took the clerk's wallet and merchandise from the store. The People also observed that while defendant remained free from felony conviction, he had incurred a number of misdemeanor convictions during the less-than-five years since he had been released from prison on the prior strike conviction.
The motion does not appear in the record; however, the People's opposition to the motion and the court's ruling on the motion do.
The trial court acknowledged defendant's efforts in the work force and school. Indeed, the court characterized defendant as "a potential shining star." Nonetheless, it observed that defendant was, in fact, convicted as an adult, not a juvenile, for his prior strike conviction. The court noted defendant had originally been sentenced to 15 years; however, his sentence was later reduced to five years "which . . . seems to me like a good break. It's giving him an opportunity to take care of business." The court further considered that the conviction in the instant case involved violence against the victim, committed while their child was present in the home. The court was not concerned with defendant's convictions for driving under the influence, but noted defendant's conviction for resisting, obstructing, or delaying a peace officer "does not bode well for the defendant." The court did not consider defendant's 12-year-old robbery conviction as "particularly remote in and of itself." Finally, the trial court indicated it believed defendant was "a danger to society." Thus, the court denied defendant's Romero motion.
"[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.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. In the absence of such a showing, the trial court is presumed to have acted correctly. The appellate court may not substitute its judgment for that of the trial court when determining whether the trial court's decision to strike the prior was proper. (Id. at pp. 376-377.) "'[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 . . . 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.]" (Id. at p. 377.) "'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' [citation]." (Id. at p. 378.)
Here, the record demonstrates the trial court balanced the relevant factors and reached an objective decision in determining that defendant was simply not outside the scheme of the "Three Strikes" law. Indeed, if anything, the court indulged in unwarranted inferences in favor of defendant in expositing its reasoning. The court's recognition of defendant's work force and collegiate efforts is curious in that defendant provided absolutely no evidence of either. Indeed, defendant's Romero motion does not even contain an affidavit or declaration under penalty of perjury attesting to these "facts." Moreover, defendant himself testified on the stand that he was collecting unemployment at the time the instant incidents occurred, seriously undermining any conclusion that defendant was the sole working support for his family or making strides in the work force. Defendant's prior strike conviction and current convictions all concerned violent behavior. Defendant used a firearm in committing his previous strike conviction offense. He was originally sentenced on January 24, 1997, to 15 years for the previous strike conviction. On September 27, 2002, the sentence was reduced to five years. Thus, defendant had already received extreme charity on the part of the judicial system in so dramatically reducing his sentence. Indeed, defendant would likely still have been incarcerated on the previous offense when he committed the current crimes if not for the reduction.
Nonetheless, despite the second chance the reduced sentence offered defendant, he sustained three separate convictions in the interim between being released from prison on the previous strike conviction and his commission of the instant offenses. On February 6, 2004, he was convicted of the misdemeanor of obstructing a police officer, for which he received three years of probation. He violated the conditions of that probation on five occasions. On February 21, 2006, defendant was convicted of misdemeanor driving under the influence with a blood alcohol content of 0.08 percent or more. He again received three years probation. He subsequently violated the terms of his probation four times. On January 7, 2008, while still on probation, defendant was convicted again for misdemeanor driving under the influence. He received a four-year term of probation, the conditions of which he violated twice before committing the current offenses. Defendant had pending prosecutions for felony intimidating a witness and felon in possession of a firearm. Defendant was, of course, still on probation when he committed the current offenses. Finally, as the court correctly noted, while defendant had not garnered another felony conviction in the 12 years since he was convicted of the strike offense, he had only been released from prison for five years; thus, the conviction was not too remote in that defendant had simply not lived an extended crime-free period while not incarcerated. The court's decision to deny defendant's Romero motion was well within its discretion.
Hearing on the latter violation of probation was still pending at the time the probation officer's report was prepared. After denying defendant's Romero motion and sentencing defendant in the instant case, the court found defendant in violation of his probation by his commission of the instant offenses, revoked his probation, and sentenced him to 120 days incarceration concurrent with the sentence imposed in this case.
Both these offenses stemmed from the same date as the offenses in the instant case. Although officers had not found a gun in the house, they did find a single ammunition cartridge in the home. After denying defendant's Romero motion and sentencing defendant in the instant case, the court dismissed the first count on the People's motion, reduced the second count to a misdemeanor on the defendant's motion pursuant to section 17, subdivision (b), and then dismissed the second count pursuant to section 1385.
Finally, defendant's reliance on People v. Bishop (1997) 56 Cal.App.4th 1245, 1248 is misplaced. First, the Bishop court, in deferentially reviewing the trial court's act of striking two of the defendant's prior strike convictions, upheld that exercise of discretion. Here, we deferentially review the court's denial of defendant's motions to strike his prior strike conviction. As discussed above, the court considered the proper criteria in ruling on defendant's motions, and we may not substitute our own judgment. (Id. at pp. 1250-1251; People v. Carmony, supra, 33 Cal.4th at p. 377.) Second, 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. Instead, the Bishop court indicated the nature of the present crime and the remoteness of the defendant's prior violent offenses operated to mitigate his Three Strikes sentence. However, the Three Strikes law provides: "[t]he length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence." (§ 667, subd. (c)(3).) Thus, remoteness does not take a defendant outside the spirit of the very law that expressly rejects remoteness as a basis for avoiding it. Indeed, the Supreme Court in Williams found "not significant" the fact that 13 years passed between defendant's prior serious and/or violent felony convictions and the current felony conviction, because the defendant did not refrain from criminal activity during that span of time. (Williams, at p. 163.) The court in People v. Gaston (1999) 74 Cal.App.4th 310, also found the remoteness of prior strike convictions insignificant where the defendant had not led a legally blameless life in the interim. (Id. at p. 321 [recidivism a factor in reversal of dismissal of 17-year-old strike].) "[T]he overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career. [Citations.]" (People v. Strong (2001) 87 Cal.App.4th 328, 338-339.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.