Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10509
NICHOLSON, Acting P. J.
A jury convicted defendant Jose Stewart Benavidez of evading an officer by means of a vehicle chase and driving under the influence with a prior alcohol-related driving conviction, and driving with a suspended license. In a court trial, defendant was found to have six prior felony convictions, one of which was a strike, and to have served five prior prison terms. He was sentenced to 11 years in prison.
On appeal, defendant contends (1) the trial court abused its discretion in refusing to strike any of his prior convictions, and (2) the court committed constitutional sentencing errors. We affirm the judgment.
FACTS
Around midnight of December 3, 2006, police officers attempted to stop defendant for speeding, but he sped off and a chase ensued which lasted about 15 minutes and covered over 13 miles. During the chase defendant’s speeds reached 70 miles per hour in 45 mile per hour zones, he ran several stop signs and red lights, he drove onto the freeway and reached speeds approaching 100 miles per hour, he repeatedly weaved and changed lanes without signaling, and he drove off of the freeway and into a field where he was stopped by a barbed wire fence.
A police car pulled in behind defendant, however defendant was not done. Defendant put his vehicle in reverse, hit the patrol car and then drove alongside the fence until he was able to again enter the street. The chase ended when an officer used a “pursuit intervention technique,” meaning he rammed defendant’s vehicle, and he was taken into custody. His blood-alcohol content was.13 percent.
DISCUSSION
I
Pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), defendant moved the court to strike his prior strike conviction and all of his other felony convictions. The court denied the motion. After recounting defendant’s lengthy criminal history, listening to several witnesses supporting defendant and to his counsel’s argument, the court denied the motion. Defendant contends the denial was an abuse of discretion. We do not agree.
In considering whether to grant a defendant’s motion to strike one or more of his prior strike convictions, the trial “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 [“Three Strikes”] 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.)
Defendant’s criminal history consists of the following:
In 1976, defendant, then a minor, had separate petitions sustained for being drunk in public, battery, and battery on a peace officer.
In 1977, defendant was convicted of drunk driving and placed on informal probation for one year.
In 1978, he was convicted of petty theft and placed on two years’ formal probation with five days in jail.
In 1979, he was convicted of robbery with a firearm use enhancement and was sentenced to four years in prison.
In 1983, while on parole, he was convicted of receiving stolen property and again sentenced to prison. He was again paroled in 1985, but four months later his parole was revoked.
In 1986, he was convicted of possession of methamphetamine and child endangerment and sentenced to prison for five years.
In 1990, he was convicted of possession of methamphetamine and sent to prison for 16 months.
In 1991, he was convicted of first degree burglary and sentenced to state prison for four years.
In 1993, he was again convicted of possession of methamphetamine and sentenced to prison for four years.
In 1996, based upon separate incidents, defendant was twice convicted driving under the influence, resisting arrest, possession of a controlled substance, and petty theft. He was sentenced to eight years in prison.
In 2003, defendant was convicted of evading an officer by means of a high-speed chase and driving with a suspended license and placed on probation with 365 days in jail.
In July 2006, defendant was convicted of alcohol-related driving and placed on probation.
The court also had before it the testimony of defendant’s family, that defendant was a very good father to his children and son to his parents, but they recognized he had a drinking problem.
Defendant argues that in denying his Romero motion the trial court failed to give consideration and/or weight to the fact that most of his convictions were alcohol-related. While we agree with defendant’s latter assertion, we disagree that the court failed to properly consider this factor.
In denying the Romero motion the court expressly stated that it had no reason to believe other than what defendant’s family members and defendant himself testified to defendant’s good character when he was not drinking. However, the court recognized that defendant had failed in any meaningful way to address his alcohol problem and, therefore, he remained a danger to society.
Defendant wrongfully minimizes his substance abuse problem. “As a policy matter, when a defendant has a drug addiction or substance abuse problem, where the defendant has failed to deal with the problem despite repeated opportunities, where the defendant shows little or no motivation to change his life style, and where the substance abuse problem is a substantial factor in the commission of crimes, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence. For example, the felony drunk driver who is suffering from an uncontrolled alcoholism should be sentenced to a longer term, not a shorter one, in order to prevent him from driving under the influence again.” (People v. Reyes (1987) 195 Cal.App.3d 957, 963.)
Defendant’s extremely lengthy criminal history, coupled with his failure to address his alcohol abuse problem which appears to be a substantial factor in his long, more than 30-year criminal history, is precisely what brings defendant within the “spirit” of the Three Strikes Law. Thus, there was no abuse of discretion in denying the motion.
Defendant cites our decision in People v. Strong (2001) 87 Cal.App.4th 328, as a case supporting reversal of the trial court’s decision in this case. The comparison is inapt.
Strong was convicted of sale of a drug falsely represented to be cocaine and he admitted a prior strike conviction for assault with a deadly weapon, which was incurred three years prior to his instant offense. (People v. Strong, supra, 87 Cal.App.4th at pp. 332-333.) At sentencing, the court struck the prior strike, reasoning that the assault had been out of character for defendant and that, aside from the strike, his prior criminal history of five felony and 12 misdemeanor convictions were for “petty acquisitive offenses and substance abuse,” circumstances that removed him from the spirit of the Three Strikes law. (Id. at pp. 333-334.) We concluded that notwithstanding the nonviolent character of all but the assault convictions, the defendant’s record showed increasing seriousness by going from misdemeanor to felony convictions, thus bringing him “squarely” within “both the letter and spirit of the Three Strikes law.” (Id. at p. 346.)
Defendant argues that aside from his burglary conviction, which had occurred 17 years prior to the instant offenses and the court’s “mislabeling of [his] criminal history as increasing in seriousness and violen[ce],” his offenses were not of increasing seriousness as they were drug-related and nonviolent. We agree with defendant that his history does not show an increasing pattern of serious offenses. Instead, it shows a constant pattern of serious offenses. Evading police officers by means of a high-speed chase and driving under the influence are offenses fraught with substantial danger to the lives of the police officers and to the lives of the citizenry at large. Defendant’s record being considerably worse than that of defendant Strong, Strong is of no aid to defendant.
II
Defendant contends that sentencing him pursuant to the determinate sentencing law as amended in 2007 (Stats. 2007, ch. 3 (SB 40), effective Mar. 30, 2007) for crimes committed prior to the effective date of the amendments violated constitutional prohibitions against ex post facto laws. Defendant recognizes that we must reject his contention pursuant to People v. Sandoval (2007) 41 Cal.4th 825, which held contrary to his position, and Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, which requires us to follow holdings of the California Supreme Court, but states he is raising the issue to preserve it for federal review. The issue is preserved.
III
Defendant contends that sentencing him to to the upper term based on facts found only by the trial court violated the constitutional proscription against such sentencing as set forth in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. Again, defendant recognizes that his position is contrary to the holding in People v. Black (2007) 41 Cal.4th 799, that one properly found aggravating circumstance is sufficient to impose the upper term. (Id. at p. 816.) Again, defendant recognizes we are bound by Black, but he is raising the argument for potential appellate review. The issue is preserved.
IV
Defendant contends the trial court abused its discretion in imposing the upper term by failing to weigh the mitigating factors against those factor it cited in aggravation. The purported mitigating factors claimed by defendant are his “long-standing substance abuse history that he had never been given the opportunity to address;” his early acknowledgement of wrong doing; his show of remorse; his payment of restitution; the lengthy sentence he faced without the upper term being imposed; “the non-violent and non-serious nature of the current offenses;” and the “relatively minor nature of the prison priors, which included four drug-related offense[s] and one receiving stolen property conviction.”
First, one prior conviction is sufficient to impose the upper term (People v. Black, supra, 41 Cal.4th at p. 816), and defendant has six felony and 12 misdemeanor prior convictions. Further, nothing in the record supports defendant’s assertion that he has not had the opportunity to address his substance abuse problem. And, for reasons set forth in section I, we do not consider defendant’s attempts to evade police officers by means of high-speed chases and driving while intoxicated nonserious offenses, as they are fraught with potentially fatal consequences for others near or in defendant’s path. Finally, the other mitigating factors were all before the court and, to the extent weighing may be required, were in the absence of any evidence to the contrary presumably considered by the trial court in arriving at its decision. (See Evid. Code, § 664 [official duty presumed to have been regularly performed].)
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., ROBIE, J.