Opinion
B296140
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN ALPINE CALLIHAN, Defendant and Appellant.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SA097757) APPEAL from a judgment of the Superior Court of Los Angeles County, William L. Sadler, Judge. Affirmed. Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant Kevin Alpine Callihan was convicted of one count of first degree burglary, in violation of Penal Code section 459. The trial court imposed an aggregate prison sentence of 35 years to life, which is comprised of a prison term of 25 years to life for the first degree burglary conviction and two consecutive five-year prison terms imposed pursuant to section 667, subdivision (a) for a prior conviction for first degree burglary and a prior conviction for kidnapping.
Undesignated statutory citations are to the Penal Code.
At trial, the People introduced evidence indicating that footage from the victim's surveillance system showed that on the date of the burglary, Callihan entered the driveway of the victim's residence, walked towards the burglar's apparent point of entry, disappeared from view for approximately 15 minutes, reappeared with the victim's gym bag, and rode away on a bicycle. The surveillance video from the date of the incident was purged three days thereafter. Although the victim and the detective investigating this case had watched parts of the video before its destruction, they did not review footage covering the entire 10-hour period in which the victim was not home.
On appeal, Callihan argues that the trial court erred in: (1) denying his motion to exclude testimony concerning, and photographs of, the surveillance footage because the state had a duty to preserve it; and (2) declining to strike his two prior serious felony convictions and thereafter imposing a sentence authorized by the "Three Strikes" law. In connection with the first claim of error, Callihan contends that, had the police obtained a copy of the security video covering the entire 10-hour period in which the victim was not at her residence, he could have shown that another person actually burgled the house.
We conclude that the trial court did not err in denying the motion to exclude, given there is substantial evidence that the supposed exculpatory value of the footage was not apparent at the time it was destroyed and that the police did not act in bad faith in failing to preserve it. We further conclude the trial court did not abuse its discretion in finding that Callihan fell within the spirit of the Three Strikes law. Consequently, we affirm.
PROCEDURAL BACKGROUND
On May 21, 2018, the People filed an information charging Callihan with one count of first degree burglary, in violation of section 459. The information contained special allegations including, as relevant here, the allegations that Callihan suffered two prior serious felony convictions for purposes of section 667, subdivision (a) and two prior serious and/or violent felony convictions for purposes of section 667, subdivisions (b) through (j). Specifically, the People alleged that on August 12, 1986, Callihan was convicted of first degree burglary, in violation of section 459; and that on July 1, 1991, he was convicted of kidnapping, in violation of section 207, subdivision (a). On the date on which the People filed the information, Callihan pleaded not guilty to the first degree burglary charge and denied all special allegations.
The information further alleged that Callihan committed vandalism causing over $400 in damage, in violation of section 594, subdivision (a); shoplifting, in violation of section 459.5; and receiving stolen property not exceeding $950 in value, in violation of section 496, subdivision (a). Upon the People's oral motion, the trial court later dismissed these counts pursuant to section 1385.
Section 667, subdivision (a) provides in pertinent part: "Any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." (§ 667, subd. (a)(1).)
Section 667, subdivision (e) provides in relevant part: "[I]f a defendant has two or more prior serious or violent felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [¶] . . . [¶] (ii) Imprisonment in the state prison for 25 years." (See § 667, subd. (e)(2)(A)(ii).)
Before trial, Callihan filed a motion to exclude "any testimony regarding video reviewed in this case and . . . any and all photographic evidence generated from video that was not preserved by" the police. Callihan argued that the police violated his due process right to present a complete defense by failing to preserve the "entire [surveillance] video" depicting the "range of time from when [the victim] left her residence to when she returned and discovered the damage."
The trial court held a hearing on Callihan's motion. Callihan argued that "it's pretty clear from the owner of the house and . . . [D]etective [Clarence Williams] that they didn't view the whole video" and the detective "just took a snippet of [Callihan] in the driveway while the homeowner wasn't there." Callihan contended, "We don't know if during a six-, seven-, five-hour [sic] period of time someone else showed up, and the guy dropped the stuff and took off. We don't know anything about the video because they didn't watch it." Thus, according to Callihan, the surveillance video "could very well be exculpatory, but we don't know. We don't have an opportunity to find out."
The trial court denied Callihan's motion. It found that "the officer [did not] act[ ] in bad faith because the exculpatory value" of the video "wasn't apparent" when "the video was first observed by the officer." The court remarked that the detective saw "an image of a burglar" on the video and "[t]here was nothing about the image at that time or any of the video that was observed that would indicate there was any exculpatory value in any of the video."
At the conclusion of Callihan's trial, the jury found Callihan guilty of first degree burglary. The trial court subsequently found that on August 12, 1986, Callihan suffered a conviction for first degree burglary, in violation of section 459; and that on July 1, 1991, he suffered a conviction for kidnapping, in violation of section 207, subdivision (a).
Callihan waived his right to a jury trial on whether he suffered these prior strike convictions.
Callihan later requested that the trial court strike his two prior serious felony convictions pursuant to section 1385. At the February 22, 2019 sentencing hearing, the trial court denied Callihan's request to strike the prior convictions because of Callihan's "continued criminality and poor performance on parole." The court then sentenced Callihan to an aggregate prison term of 35 years to life, which is comprised of a term of 25 years to life for the instant first degree burglary conviction, and two consecutive five-year prison terms for the two prior serious felony convictions pursuant to section 667, subdivision (a).
The trial court did not identify the statute authorizing it to impose a prison sentence of 25 years to life for the first degree burglary conviction. Section 461, subdivision (a) provides that first degree burglary is punishable by "imprisonment in the state prison for two, four, or six years." (See § 461, subd. (a).) Nonetheless, it appears that the trial court imposed this sentence pursuant to section 667, subdivision (e), especially considering that the People had recommended that the court do so. (See fn. 4, ante; People v. Carmony (2004) 33 Cal.4th 367, 371 (Carmony) [noting that section 667, subdivisions (b) through (j) are provisions of the Three Strikes law].)
On February 27, 2019, Callihan timely appealed the judgment of conviction.
FACTUAL BACKGROUND
At trial, the People called the following witnesses: (1) the burglary victim, Karen Smith; (2) Detective Williams; (3) Aliaksei Yurevich, a manager of a pawnshop that came into possession of Smith's laptop after the burglary; and (4) Elliot Plichta, a deputy who played a lesser role in the investigation of this case. The defense did not call any witnesses. The remainder of this Part summarizes relevant portions of (a) the testimony offered by the People's witnesses, and (b) the defense's theory of the case.
1. The People's Evidence
At approximately 8:30 a.m. on March 20, 2018, Smith left her house and commuted to her place of employment. She returned home at some point between 6:01 p.m. and 6:05 p.m. on that date. Upon Smith's return, she noticed that a car mat she had left outside to dry was "hanging out of a gaping hole in the window closest to [her] back door and there was a pile of broken glass right below that window." Smith looked through the window and thought she "saw . . . a shadow go by." Smith thereafter returned to her car and telephoned the police.
Detective Williams of the Los Angeles County Sheriff's Department later arrived at Smith's home. Williams and another officer entered the house, "perused" the dwelling, determined that no suspects were present therein, and then exited the home and told Smith that "it was safe to go" into the house. Smith entered the house and noticed that the following items were missing from the home: a black gym bag, a new silver 17-inch Hewlett Packard laptop that was accessible without a password, and cash that Smith had stored in her bedroom. Certain "personal identifying information" belonging to Smith was stored on her missing Hewlett Packard laptop, including an employment verification form. Smith later noticed that her brother's camera and laptop computer were also missing from the house.
Smith's residence had a home surveillance system that used four cameras, including cameras that viewed the driveway area. The surveillance system did not have a camera covering the window that had been broken. Nonetheless, one of the cameras was pointed toward the back door, and that door is approximately 12 inches away from the broken window. The surveillance video from the day of the incident was ultimately purged, as the system automatically purges the video "about [every] three days."
Smith testified that while she was in Detective Williams's presence, she telephoned the owner of the property on speakerphone, and the owner stated that the video would be purged in about three days. Thus, it appears that Williams was aware the video would be deleted within approximately three days of the burglary.
Smith provided Detective Williams with a remote control that allowed him to view video from the surveillance system on a computer monitor. Williams rewound the video to the time at which Smith had left that morning, which was sometime between 8:30 a.m. and 9:00 a.m. Williams then fast-forwarded through the footage from all four cameras until Williams first saw someone appear in the footage at 11:00 a.m.—i.e., a person whom Williams later identified as Callihan.
Detective Williams testified that the timestamp on the video was one hour ahead of the actual time (e.g., the video would say that the time was 12:00 p.m. when the actual time was 11:00 a.m.). We reference the actual time, rather than the timestamp, to identify when particular events depicted on the video transpired.
Although Detective Williams testified that he looked at the footage from "all four cameras from 8:30 to 11:00," Williams admitted that he omitted this fact from his police report. Furthermore, when defense counsel asked Williams whether he "look[ed] at the entire time for all four cameras from 8:30 until 6:30," he answered, "No." Williams also admitted that he did not review any footage depicting events that had occurred after 12:30 p.m.
At that point in the video, Williams saw Callihan ride his bicycle up the driveway, park the bicycle near the carport, and then get off the bicycle. Williams then saw Callihan walk toward the area where the window was smashed and out of the camera's view. Williams observed that approximately 15 minutes later, Callihan reappeared in the footage. At that point, the video showed Callihan, who was depicted carrying a black bag, get onto his bicycle and ride away.
Williams showed this footage to Smith; Smith testified that the black bag shown on the video appeared to be her missing gym bag, and, at trial, she identified Callihan as the person shown in the video. Williams and Smith testified that Callihan was the only person they saw on the surveillance video. Smith testified that she did not know Callihan, and that she did not give him permission to go onto her property or enter her residence on the date of the burglary.
While Detective Williams was at Smith's residence on the evening of the burglary, he told Smith: " 'I'm going to try to come tomorrow and I can download [the surveillance video] and take it into evidence.' . . . 'Just in case I don't make it back tomorrow, I will also take some photos, I will use my cell phone and take photos right now so at least I have that if I have nothing else.' " Detective Williams took photographs of certain frames from the surveillance video that depicted Callihan.
These five photographs, which were taken from surveillance footage of Smith's driveway, were admitted into evidence. These exhibits, however, are not in the appellate record before us.
Detective Williams testified that he was not able to retrieve the video from the surveillance system at that time because he "had a high volume of calls" to respond to on that day. Approximately four to five days after the burglary, Williams asked Smith whether the surveillance video was still available, and she stated that it was not. Williams claimed he could not retrieve the video prior to that date because he needed to handle other cases "which had priority," such as robberies and assaults. Williams admitted he did not ask another officer to retrieve the video earlier. Williams also testified, however, that he did not "deliberately fail to retrieve this video" and that he should have "gone back after [his] shift" to recover it.
At 2:15 a.m. on March 30, 2018, Deputy Plichta observed Callihan riding his bicycle on the wrong side of the street. Plichta then detained Callihan and issued him a citation. At that time, Plichta realized Callihan appeared to be the individual depicted in photographs of the surveillance footage Detective Williams had included in a special bulletin that was disseminated to department personnel. Later that day, Deputy Plichta e-mailed Detective Williams a photograph of Callihan's California identification card, a photograph that Plichta had taken when he detained and cited Callihan.
After Detective Williams received this photograph from Deputy Plichta, Williams discovered that a pawnshop may have acquired Smith's laptop computer. The pawnshop's business records indicate that on March 20, 2018 at 5:35 p.m., the shop paid $150 to a customer named Kevin Callihan for a laptop computer and charger; the records also indicate that this customer had Callihan's residential address. Williams went to the pawnshop and examined the laptop computer. In the course of examining the laptop, Williams noticed that it was not password-protected, and he saw a document containing Smith's identifying information.
Detective Williams did not explain how he discovered this information.
Detective Williams telephoned Smith and told her he believed that her laptop computer may be at the pawnshop. Smith went to the establishment, discovered that it had her computer, and paid $150 to the pawnshop in order to retrieve it. Smith never recovered any of the other items that were missing from her house.
2. The Defense's Theory of the Case
During the attorney's closing argument, defense counsel suggested that the items in question may have been " 'stolen by somebody else and pawned five and a half hours later' " by Callihan. At another point during her closing argument, Callihan's counsel alleged that Callihan "pawned the laptop for someone else." The attorney also argued that Callihan could not have been the burglar because the only property he sold to the pawnshop was Smith's laptop computer, and the People had not shown he sold any of the other missing items.
Trial counsel also contended although the People had shown that Callihan was in the driveway of Smith's residence at 11:00 a.m. on the day of the incident, the jury did not hear "any evidence as to who broke into the house" and the People did not prove precisely when the burglary occurred. Counsel noted that the People had not presented any fingerprint or DNA evidence identifying the burglar. The defense conceded that a photograph shows Callihan holding Smith's gym bag on the date of the incident. Defense counsel, however, asserted that the bag could not have contained all of the items that were missing from Smith's home because the jurors did not "see a stuffed bulging gym bag."
Counsel further argued that Detective Williams should have obtained the "whole video" and that if he had, then the jury would likely have seen the burglar either entering or exiting the house. Callihan's trial counsel also faulted Detective Williams for failing to conduct a thorough investigation (e.g., there was no indication that Williams interviewed Smith's neighbors), and argued that "once Detective Williams saw Mr. Callihan on the video in the morning, he just came to the conclusion, without any other investigation, that automatically [Callihan] was the one who went into the house."
DISCUSSION
On appeal, Callihan argues that the trial court erred in: (1) denying Callihan's motion to exclude testimony regarding, and photographs of, the surveillance video because the police violated his due process rights by failing to preserve the "full video" from the date of the burglary; and (2) rejecting Callihan's request to strike his two prior serious and/or violent felony convictions at sentencing. As discussed below, Callihan fails to demonstrate that the trial court erred in denying his exclusion motion or that the court abused its discretion in declining to strike Callihan's prior convictions. We thus affirm the trial court's judgment.
A. The Trial Court Did Not Err in Denying Callihan's Motion to Exclude Evidence Concerning the Surveillance Video
California v. Trombetta (1984) 467 U.S. 479 (Trombetta), held that due process obligates the state to preserve evidence if it "possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Id. at pp. 488-489.) Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood) elaborated that, "if the best that can be said of the [lost or destroyed] evidence is that it was 'potentially useful,' the defendant must also establish bad faith on the part of the police or prosecution" to show a due process violation. (See People v. Alvarez (2014) 229 Cal.App.4th 761, 773 (Alvarez), quoting Youngblood, supra, 488 U.S. at p. 58.)
"Bad faith" is assessed based on the state's "knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." (See Youngblood, supra, 488 U.S. at p. 56, fn. *, italics added.) "If 'the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant' [citation] and fail to preserve it, that shows bad faith." (Alvarez, supra, 229 Cal.App.4th at p. 777, quoting Youngblood, at p. 58.) Put differently, if the state undertakes " 'a conscious effort to suppress exculpatory evidence,' " then it acts in bad faith in failing to preserve the evidence. (See U.S. v. Zaragoza-Moreira (9th Cir. 2015) 780 F.3d 971, 980 (Zaragoza-Moreira), quoting Trombetta, supra, 467 U.S. at p. 488.)
"We review the trial court's decision on a Trombetta/Youngblood motion under the substantial evidence standard. [Citations.] 'In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value' in support of the court's decision. [Citation.] ' " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' " [Citation.]' [Citation.]" (Alvarez, supra, 229 Cal.App.4th at p. 774.)
Callihan argues that he is entitled to relief under Trombetta because "[t]he detective saw no direct evidence that Callihan broke into the house" and "[t]he fact that Callihan's defense would be that someone other than he committed the break-in should not have come as a surprise to any law enforcement officer." He further contends that even if the surveillance video did not possess exculpatory value that was apparent before the evidence was destroyed, (i.e., it did not fall within the scope of Trombetta's holding), the trial court should have granted his motion because Detective Williams acted in bad faith by failing to retrieve the video before it was purged. Neither contention is persuasive.
Callihan does not assert that the footage actually showed that someone else committed the burglary. Instead, he seems to reassert his trial counsel's argument that "the entire video was never viewed . . . by the police or by defense counsel" and that " 'it was possible that during the six, seven, [sic] five hour period of time the video covered that someone else showed up, and the guy dropped off the stuff and took off' " and thus (presumably) left the gym bag that Callihan later retrieved. (Italics added.) In fact, Callihan contends that the security footage "could have been subjected to further viewing and the results of that viewing, had they shown another person entering the house, might have exonerated Callihan." (Italics added.)
Because Callihan has shown, at most, the existence of a " 'mere "possibility" ' " that the destroyed surveillance footage " 'may ultimately prove exculpatory' " (i.e., he asserts it may show that someone else perpetrated the burglary), he has not demonstrated that the destroyed evidence met Trombetta's standard. (See Alvarez, supra, 229 Cal.App.4th at p. 773; cf. id. at pp. 774-776 ["[W]e cannot say the [surveillance footage], apparently destroyed before it was ever reviewed, meets the Trombetta standard of possessing 'exculpatory value that was apparent before the evidence was destroyed' [citation] . . . ."].) Thus, Callihan could prevail on his motion to exclude only by showing that the state acted in bad faith by failing to preserve the evidence.
Moreover, although Detective Williams likely did not review the pawnshop's business records before the footage was purged, those business records further draw into question the purported exculpatory value of the video, given that the records indicate that Callihan sold Smith's missing laptop computer to a pawnshop on the day of the burglary.
Callihan claims that the trial court "appears to have conflated the two different types of evidence with which Trombetta and Youngblood are concerned" because, at certain points during the hearing on the motion, the lower court used the term "potentially exculpatory evidence." This supposed ambiguity is immaterial. For the reasons discussed in this section, we conclude that even if we reviewed Callihan's claim of error de novo, he would fail to satisfy Trombetta's standard.
Next, Callihan argues that "the security video . . . was unquestionably 'potentially useful' " under Youngblood. According to Callihan, "the video here was so apparently useful to [his] defense that the failure to retain it must necessarily be seen as . . . bad faith." Specifically, he argues his "defense would, not surprisingly, be that there was no direct evidence that he had broken into the house and the full video would be useful in showing whether someone else had," given that the cameras covered the exterior of the house on the day of the burglary. Thus, Callihan believes that although other courts have found that the police violated due process by allowing evidence to be destroyed after defendants had informed the police of the potential exculpatory value of such evidence, (see Alvarez, supra, 229 Cal.App.4th at pp. 776-777; Zaragoza-Moriera, supra, 780 F.3d at pp. 977-981), "there was no need for defense counsel to put law enforcement on notice that the video [in this case] would be useful . . . ."
Detective Williams testified the surveillance video showed that at 11:00 a.m. on the date of the incident, Callihan rode up the driveway on a bicycle and walked towards the area where the window was smashed, and that approximately 15 minutes later, he reappeared with a black bag and rode away on the bicycle. Williams also testified that Callihan was the only person he saw on the surveillance video. Callihan does not identify any evidence showing that the only reasonable conclusion the trial court could have drawn was that, notwithstanding Callihan's suspicious behavior, Williams was aware that Callihan's defense would be that someone else burgled Smith's home either before or after Callihan had approached the residence. This omission is fatal because Callihan bears the burden of showing that the trial court's finding of lack of bad faith is not supported by substantial evidence. (See Alvarez, supra, 229 Cal.App.4th at p. 774; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 ["Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error."].)
Although Callihan acknowledges that Williams testified "[h]e looked at all four cameras from 8:30 a.m. [(i.e., when the victim left the home)] to 11:00 a.m. [(i.e., when Callihan appeared on the surveillance footage)]," Callihan insists that the detective "did not include this fact in his police report." Assuming arguendo, notwithstanding Williams's testimony that he watched the footage from all four cameras from 8:30 a.m. to 11:00 a.m., there was still a possibility that someone else committed the burglary before Callihan approached the home, his due process claim fails because he has not shown that Williams was aware that the pre-11:00 a.m. footage was potentially useful to Callihan. (See Zaragoza-Moreira, supra, 780 F.3d at p. 977 ["[W]ithout knowledge of the potential usefulness of the evidence, the evidence could not have been destroyed in bad faith."].)
Callihan further claims that Williams's decision to go "back several days after the tape was destroyed to collect this evidence . . . indicates that he was aware of the need to preserve the video." Nevertheless, this argument fails to establish that the only reasonable conclusion one can draw from the record is that Williams knew that the video was potentially useful to the defense. As noted above, Callihan has not directed us to any evidence showing that the detective was aware that this video could support a defense that someone other than Callihan committed the burglary. In fact, the evidence is consistent with a finding that the detective sought to obtain the video simply for the purpose of building a case against the person he saw thereon, who turned out to be Callihan.
We observe Callihan concedes that Williams's failure to retrieve the video "was not deliberate, but [was] attributable to the fact that other cases had priority, although there were resources in the sheriff's department to investigate crimes." It follows that, while Williams's conduct can arguably "be described as negligent," it does not amount to a "violation of the Due Process Clause." (See Youngblood, supra, 488 U.S. at p. 58; cf. United States v. Robertson (9th Cir. 2018) 895 F.3d 1206, 1212 ["At most, [the investigating agent] was slow to obtain evidence of speculative value . . . . This is insufficient to establish that [the agent] made 'a conscious effort to suppress exculpatory evidence' such that bad faith can be inferred from his conduct alone," quoting Zaragoza-Moreira, supra, 780 F.3d at p. 980].)
In sum, Callihan has failed to show: (1) The surveillance video's exculpatory value was apparent at the time it was destroyed; or (2) even if this evidence was potentially useful to the defense, the trial court's ruling that the state did not act in bad faith is unsupported by substantial evidence. Therefore, the trial court did not err in denying Callihan's motion to exclude testimony concerning, and photographs of, the surveillance footage.
Given the above conclusions, we do not address the People's contention that they had no duty to preserve surveillance video that was never in their possession.
B. The Trial Court Did Not Abuse Its Discretion Under Section 1385
Section 1385 authorizes a "judge . . . [to], either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." (See § 1385, subd. (a).) Our high court has held that " 'a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice" pursuant to . . . section 1385(a).' " (Carmony, supra, 33 Cal.4th at p. 373.)
"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (Carmony, supra, 33 Cal.4th at p. 374.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 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 Penal Code 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.' " (Carmony, at p. 377.)
Callihan argues that the trial court abused its discretion under section 1385, subdivision (a) when it denied his request to strike his prior convictions for first degree burglary and kidnapping. He contends "[h]is past strikes were 28 and 34 years old"; while in prison, he was "a man who diligently applied himself to becoming a better man and rehabilitat[ing] himself"; and, "[w]ith regard to the facts of the current case, there was no one home and no one was injured[,] [t]he offense occurred in broad daylight, . . . there were no weapons found or used[,] . . . [the victim's] computer . . . was returned[,] . . . [and] [a]lthough the crime was committed three months after his release, Callihan was released with little structure or accountability, which contributed to reoffending." Regarding his behavior in prison, Callihan asserts "[he] held a variety of jobs and received reviews that spoke to his exceptional behavior and positive attitude[;] . . . . [h]e also studied for and received his G.E.D. while incarcerated, participated in numerous self-help classes[,] and completed a prison ministry course[; and t]he correctional officers with whom he interacted found him mature and disciplined."
The trial court found that Callihan continually engaged in criminal behavior over a long period of time and had repeatedly violated parole. It is undisputed that between 1979 and 1980, Callihan suffered three sustained juvenile petitions alleging burglary and one juvenile petition alleging assault with intent to commit rape. It is also undisputed that from 1984 to 1996, Callihan violated parole at least five times and suffered convictions for numerous offenses, including receiving stolen property, first degree burglary, second degree burglary, kidnapping, and three separate counts of taking a vehicle without the owner's consent. Additionally, Callihan was incarcerated from 1996 until late 2017, and he admits that the instant "crime was committed three months after his release" from prison.
Given these facts, we conclude the trial court did not act arbitrarily when it found that Callihan fell within the spirit of the Three Strikes law—i.e., he was a recidivist who would continue to commit crimes if law enforcement did not remove him from society. (See Carmony, supra, 33 Cal.4th at pp. 378-379 [noting that the Three Strikes law was intended to prevent " 'the continuation of' " a " 'long and continuous criminal record' " of a " ' "revolving door" career criminal' "].) In fact, the lower court's decision is consistent with an observation we made in connection with one of Callihan's prior appeals: "[Callihan] has been committed to a life of crime since his youth. It is his only source of income. As soon as he is released from prison on parole, he returns to crime. He has been a continuous danger to society, and he has given no indication this will change in the future. He has made no attempt at rehabilitation when released from prison on parole." (People v. Callihan (Oct. 29, 1997, B106805) [nonpub. opn.].)
Callihan asks us to elevate the importance of certain sentencing factors over his substantial and continuous criminal history. These factors include the ages of the two felony convictions he wishes to strike, Callihan's alleged attempts at rehabilitating himself in prison, the nonviolent circumstances of the instant offense, and Callihan's insistence that he did not receive any governmental assistance, which purportedly would have prevented him from reoffending after his release from prison. We lack the authority to accept Callihan's invitation to "substitute [our] . . . judgment for the judgment of the trial court . . . ." (See Carmony, supra, 33 Cal.4th at pp. 379-380 [holding that the Court of Appeal erred in reversing a trial court's ruling denying a request to strike prior convictions because the appellate court "simply disagreed with the [trial] court's weighing of [the relevant] factors"].) We thus decline to disturb the trial court's decision not to strike Callihan's prior felony convictions.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------