Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA352864, Barbara R. Johnson, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Appellant Anthony Bunche appeals from a judgment of conviction, after a jury found him guilty of assault by means likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1) (count 1), and assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 2). The trial court found true the allegations that appellant had suffered two prior serious or violent felonies within the meaning of section 667, subdivisions (b) through (d) and section 1170.12, subdivisions (a) through (d), as to counts 1 and 2 (the “Three Strikes” law) and one prior serious felony within the meaning of section 667, subdivision (a)(1), as to count 2. After denying appellant’s Romero motion, the trial court sentenced appellant to a term of 25 years to life on count 1 and stayed the sentence on count 2 pursuant to section 654. Appellant contends that the trial court abused its discretion in refusing to strike his prior felony strikes.
All further statutory references are to the Penal Code, unless otherwise stated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We affirm.
Because the issue raised by appellant pertains to sentencing, we provide only a cursory statement of the underlying facts.
On September 30, 2008, at approximately 6:00 p.m., both appellant and Samuel Gutierrez were driving home in Los Angeles. As Gutierrez was driving, he felt a very light impact to the back of his truck. Because the impact was so slight, Gutierrez did not stop and continued driving until appellant’s car blocked his path. Appellant got out of his car holding a plumbing wrench and approached Gutierrez. Gutierrez drove in reverse for a block, and appellant returned to his car and pursued Gutierrez. Appellant blocked Gutierrez’s path again, exited his car with the wrench, and hit Gutierrez in the back of his neck with the wrench. Appellant then returned to his car and approached Gutierrez with a piece of metal that was about 20 inches in length and the thickness of a finger. Appellant hit Gutierrez on the forehead with the metal bar, causing him to bleed. As both of them tugged at the metal bar, appellant punched Gutierrez twice, hitting him in the mouth and face. Gutierrez managed to drive away and wrote down appellant’s license plate number. Four anonymous callers and Gutierrez’s wife called 9-1-1 to report the incident. The following day, Gutierrez sought medical attention.
DISCUSSION
Appellant contends that the trial court abused its discretion in denying his Romero motion on grounds that (1) his strikes were remote in time (27 and 20 years old respectively); (2) he had lived crime-free for eight years before this offense; (3) he had turned his life around by obtaining employment at an oil refinery, becoming certified as a drug and alcohol counselor, and performing drug counseling for different organizations; (4) he was 51 years old; (5) his current offense had occurred under “unique and non-recurring circumstances” and was qualitatively different from his prior convictions; and (6) in the current offense, the victim admitted that there had been an impact between his truck and appellant’s car but had decided not to stop and continue driving.
In Romero, the California Supreme Court held that a trial court may strike an allegation under the Three Strikes law that a defendant has previously been convicted of a serious or violent felony “‘in furtherance of justice’” under section 1385, subdivision (a). (People v. Williams (1998) 17 Cal.4th 148, 159 (Williams).) The term “‘in furtherance of justice, ’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]” (Romero, supra, 13 Cal.4th at p. 530.) In deciding whether to strike a prior conviction, “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.” (Williams, supra, at p. 161.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in deciding to dismiss [citation]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law, ] produce[] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.]” (Carmony, supra, at p. 378.)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376–377.)
There is no showing that the trial court was either unaware of its discretion or considered impermissible factors. We cannot say that its ruling was irrational or arbitrary. The record shows that the trial court considered counsels’ arguments, as well as appellant’s criminal history and his conduct in the current case in declining to strike his prior convictions. Appellant has a long and serious record of criminal history. Appellant’s prior strike conviction in 1980 was for voluntary manslaughter, for which he received a sentence of five years. His other prior strike conviction was for two counts of first degree residential burglary in 1989, for which he received a total sentence of 12 years 4 months. Appellant’s record started as a juvenile with sustained petitions for assault and burglary. His adult record contains numerous convictions, including a conviction for possessing tear gas in 1976, carrying a concealed weapon in 1977, another voluntary manslaughter conviction in 1980, and taking a vehicle without the owner’s consent in 1986.
Appellant argues that his prior strikes were incurred many years earlier and that his recent lifestyle, until this current offense, was crime-free and commendable. Although appellant’s prior strikes may be remote, they nevertheless reveal serious and persistent criminal behavior. No case law compels a judge to strike a prior conviction simply based on its age. (See People v. Gaston (1999) 74 Cal.App.4th 310, 320.) Appellant had a three-decade history of criminal behavior. His recidivist history reflects precisely the type of “unrelenting record of recidivism” (ibid.) at which the Three Strikes law is aimed. Even more troubling is the pattern of theft and violence in appellant’s criminal history. Appellant’s past offenses were persistent, recurrent and oftentimes violent. Though appellant attempts to downplay his current offense, it conforms to the pattern of violence demonstrated in his criminal history. Here, appellant hit a man with a wrench, a metal bar, and his fists because of what he himself has characterized as “road rage.” What may have began as an innocent traffic collision resulted in unnecessary acts of aggression and violence on the part of appellant.
Based on the violent nature of the present conviction and appellant’s lengthy and serious criminal history, we are satisfied that the trial court did not abuse its discretion in denying appellant’s motion to strike his prior convictions.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ. J.