Opinion
C084690
07-16-2018
THE PEOPLE, Plaintiff and Respondent, v. AARON THOMAS BEAVER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE003413)
Defendant Aaron Thomas Beaver appeals his conviction for assault by means of force likely to produce great bodily injury. He contends the court abused its discretion in denying his Romero motion to dismiss his prior strike conviction. We disagree and affirm the judgment, but order minor corrections to the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 19, 2017, defendant, an inmate in Folsom State Prison, pled guilty to assault by an inmate by means of force likely to produce great bodily injury and admitted he has a prior strike conviction for arson of an inhabited building. It was agreed that he would receive the low term of two years in state prison, doubled to four years unless the trial court were to grant his motion to dismiss his prior strike conviction.
The circumstances surrounding the assault conviction were as follows: On September 28, 2015, defendant and two other inmates (McHatton and Starnes) were seen battering another inmate (Hamilton) in the main yard at Folsom State Prison. Defendant and his cohorts were using clenched fists to strike Hamilton in the head and upper torso as he was on the ground. Correctional staff gave multiple verbal orders to the combatants to " 'stop and get down.' " Defendant and his cohorts ignored the orders and continued to batter Hamilton. Defendant was sprayed in the face with pepper spray and he discontinued his attack, but failed to comply with orders to get down. Defendant's two cohorts continued to batter Hamilton, even after they were sprayed with pepper spray. The attack ended after a dispersion grenade was deployed and all of the inmates complied with orders to get down on the ground. Hamilton sustained injuries including a broken wrist. In the postattack investigation, Hamilton claimed he slipped and fell. He would not discuss the incident further and indicated he opposed the prosecution of defendant, McHatton, and Starnes. McHatton and Starnes were convicted of assault by an inmate by means of force likely to produce great bodily injury. Both McHatton and Starnes received sentences of two years.
Defendant filed a request to dismiss his prior strike pursuant to Penal Code section 1385 and the authority set forth in Romero. The circumstances surrounding his prior strike conviction were as follows: Defendant had been at a hotel in Palm Springs, "partying" with three female hotel guests. Defendant had been drinking alcohol and using methamphetamine. One of the females apparently took defendant's penis out of his pants and began teasing him. Defendant became very embarrassed and agitated. He left the room and obtained an ice bucket. He filled the ice bucket with paper, set it on fire, and put it inside the hotel room in which one of the females was sleeping. The other two females returned to the room and put the fire out, which had damaged the carpet. Defendant was convicted of arson of an inhabited dwelling and grand theft. Defendant was sentenced to the upper term of eight years.
The probation report also includes the following relevant facts: Defendant's history while being housed at Folsom State Prison includes one additional incident, occurring in June 2015, of battery on an inmate. In that instance, defendant and another inmate reportedly battered a single inmate. Defendant also has a history of substance abuse. He has been "experimenting" with methamphetamine on and off since the age of 15. Defendant reported that he was using it excessively at the time of his strike offense and it impaired his judgment. At the time of sentencing, defendant was 24 years old. He regretted the incident happened and was sorry Hamilton suffered a broken wrist.
The trial court denied defendant's motion to dismiss his prior strike. In doing so, the trial court explained that, considering defendant's past history and criminal conduct, it did not find defendant fell outside the parameters and purpose of the three strikes law. The trial court emphasized the severity of defendant's strike conviction and repeated involvement in violent conflicts during his incarceration (wherein defendant is in the majority while attacking a singular individual). The trial court further remarked that defendant continued to refuse to conform his conduct and act appropriately, even after imposition of severe consequences such as the eight-year sentence and the loss of credits for misconduct during incarceration, and knowing he had a strike.
The trial court sentenced defendant to the low term of two years, doubled to four years for the strike, to be served consecutively to his eight-year sentence for arson.
DISCUSSION
I
Romero Motion
Defendant contends the trial court abused its discretion when it declined to dismiss the finding of his prior arson of an inhabited structure conviction because the nature of his current offense and his comparatively minimal criminal history renders him "outside the spirit of the Three Strikes Law." We find no abuse of discretion.
In Romero, our Supreme Court held that trial courts have the discretion under Penal Code section 1385 to dismiss prior conviction allegations or findings in the furtherance of justice. But that discretion "is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.)
As we explained in People v. Strong (2001) 87 Cal.App.4th 328, the striking of a prior serious felony conviction is not a routine exercise of sentencing discretion. It is an extraordinary exercise of discretion to determine that a defendant who falls within the letter of the three strikes law should be treated as if he or she has no prior convictions because, for appropriately considered reasons, he or she is deemed to be outside the spirit of the law. (Id. at pp. 337-338.)
A trial court may exercise this discretion if, and only if, a defendant can be "deemed outside the . . . spirit" of the statute, giving "preponderant weight" to inherent statutory factors (such as the background, character, and prospects of a defendant, as well as the nature and circumstances of the present and previous felony convictions) and ignoring any factors extrinsic to the statute. (People v. Williams (1998) 17 Cal.4th 148, 161.)
"In passing on the trial court's reasons for dismissing a strike, the appellate court must determine whether the trial court's ruling was an 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.]' " (People v. Strong, supra, 87 Cal.App.4th at p. 336, fns. omitted.)
Applying that standard here, we find no abuse of discretion. Defendant's current offense was not only a violent offense, it was committed only six months into his incarceration for his previous violent offense. Although defendant attempts to minimize the seriousness of his current offense by characterizing it as a common prison fight, defendant was one of three inmates who physically attacked a single inmate -- and continued to do so even though the victim was on the ground, and continued to do so despite multiple verbal orders to " 'stop and get down.' " Defendant did not stop until he was sprayed in the face with pepper spray and, even then, did not get on the ground until a dispersion grenade was deployed. That the victim was not more seriously injured, or that he did not support the prosecution of his attackers, does not definitively diminish the serious or violent nature of his crime.
Defendant's criminal history also shows he is readily willing to resort to violence. Although defendant's criminal history is not lengthy, it is serious. He resorted to violence which could have resulted in a death, had the other women not arrived when they did. Only three months after being sentenced to eight years in prison for that arson, defendant again resorted to violence by engaging in a prison fight -- joining another inmate in attacking a single inmate. Despite the inevitable loss of custody credit time as a result of that fight, three months later, defendant resorted to the violence that resulted in his current conviction. He offered no excuse or explanation for his prison fighting. We disagree with defendant that this history is "certainly not indicative of chronic criminality or a predisposition toward violent behavior." We think it shows a ready willingness to resort to violence as a means to settle disputes and with minimal provocation.
The particulars of defendant's background, character, and prospects do not necessarily point toward lenience. Although defendant has obtained his GED and formerly worked as a mechanic and floor installer, as an adult, he has shown himself to be a violent individual. He also has been using methamphetamine on and off since the age of 15 and was reportedly using it excessively at the time of his strike offense -- a condition he blames for his poor judgment. The fact that he was under the influence of drugs and alcohol when he committed the arson does not reduce concern for defendant's propensity toward violence. Instead, it is concerning that he has a long-standing substance abuse problem which undermines his judgment to such an extent that he lit a fire in a room in which someone was sleeping simply because he was embarrassed.
Defendant further argues that a two-year consecutive sentence would have been a sufficient punishment in this case and makes much of the fact that his two cohorts had longer criminal histories, yet received two, not four-year, sentences. As defendant acknowledged at trial, however, his cohorts did not have prior strike findings.
In sum, nothing about defendant's current felony, his prior criminal history, his background, or his character suggests the trial court's refusal to treat defendant as though he had not previously been convicted of a prior serious and/or violent felony fell outside the bounds of reason. (See People v. Williams, supra, 17 Cal.4th at p. 161; People v. Strong, supra, 87 Cal.App.4th at p. 336.) The trial court considered the appropriate factors. Defendant argues that the court should have given more weight to certain facts or circumstances. We decline defendant's invitation to reweigh the evidence and substitute our judgment for that of the trial court. The trial court did not abuse its discretion when it declined to dismiss the finding of defendant's prior strike.
II
Corrections To Abstract
Respondent notes, and defendant concedes, that there are two errors in the abstract of judgment that require correction.
The victim, Hamilton, did not request restitution and, at sentencing, the trial court did not order or reserve the issue of victim restitution. Nonetheless, the abstract of judgment reflects victim restitution for Hamilton was ordered in an amount to be determined. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Thus, reference to victim restitution must be stricken from the abstract of judgment.
Additionally, the trial court ordered the mandatory $40 court operations assessment, and $30 criminal conviction assessment. These assessments were erroneously omitted from the abstract of judgment.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment deleting reference to victim restitution and including the $40 court operations assessment and $30 criminal conviction assessment, and forward a certified copy of same to the Department of Corrections and Rehabilitation.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Butz, J.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.