Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06NF3068, William R. Froeberg, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Moore, J., and Aronson, J.
Appellant Alfonso Gonzalez Carrillo was found guilty by a jury of one count possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), and one count possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)). The court found true allegations he had suffered three prior strikes. It sentenced him to 30 years to life.
The only issue raised on appeal is whether the sentencing court abused its discretion In refusing to strike two of the three priors. (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Relying on People v. Burgos (2004) 117 Cal.App.4th 1209, appellant asserts that the three prior strikes in this case arose out of a single incident, and because they arose from a single incident the court abused its discretion when it refused to strike two of them.
How a trial court is to exercise its discretion under Penal Code section 1385 and Romero when the strikes arise from a single incident has been the subject of some disagreement. The problem was initially raised, but not resolved, in footnote 8 of People v. Benson (1998) 18 Cal.4th 24. “Because the proper exercise of a trial court’s discretion under section 1385 necessarily relates to the circumstances of a particular defendant’s current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (Id. at p. 36, fn. 8; see People v. Sanchez (2001) 24 Cal.4th 983, 993 [refers to unanswered question in Benson but says, “We are not faced with that question in this case”].)
Squarely confronted by the question left unresolved in Benson, the appellate court in Burgos ultimately concluded that the “circumstances” referenced in footnote 8 “are present in this case.” (People v. Burgos, supra, 117 Cal.App.4th at p. 1216.) It pointed out that in its case, “Appellant’s strike priors arose from a single criminal act,” his other crimes were only misdemeanors, the current offense was not “the worst of crimes,” and he could be sentenced for the current crime as a second strike defendant “to a term as long as 20 years.” (Ibid.) The Burgos court concluded that, “in view of the particular offenses that constituted the two prior strike convictions in this case, it was an abuse of discretion to fail to strike one of those convictions in furtherance of justice under Romero, supra, 13 Cal.4th 497 and section 1385.” (Id. at pp. 1216-1217.) It then directed the trial court to strike one of the two prior strikes and resentence the defendant.
Appellant argues—as others have—that Burgos stands for the proposition that it is an abuse of discretion for the trial court to refuse to strike one of two priors where the prior strikes arise from a single incident. Recently, the Court of Appeal in People v. Scott (2009) 179 Cal.App.4th 920 questioned Benson’s analysis. “We find the holding in Burgos difficult to discern. It can reasonably be read to state that in such cases one strike must be stricken, or that the connection between the two strikes is but one factor a trial court must consider in conducting a traditional Romero analysis (People v. Superior Court (Romero) (1996) 13 Cal.4th 497. [¶] By applying the definition of a ‘strike’ as provided by the three strikes law, and by closely hewing to People v. Benson (1998) 18 Cal.4th 24 (Benson), we conclude that in such cases, the trial court is not compelled to strike a strike, but must consider the closeness of the two strikes as an additional circumstance in conducting a Romero analysis.” (Id. at p. 923, emphasis in original.)
Like the appellate court in Scott, we believe the holding in Burgos has been overstated. It has certainly led to confusion at the trial court level. (People v. Scott, supra, 179 Cal.App.4th at p. 930 [“the actual holding of Burgos [is] doubtful, and has led to a divergence of views”].) It also does not hold, as appellant argues, that a sentencing court is mandated to strike one of two priors whenever the priors arise out of a single incident. (Id. at p. 931.) It ordered the trial court to strike one of the priors only because under the facts of that case such a result was warranted. Like Scott,we do not read Burgos as holding such a result is warranted in every case where the prior strikes arise out of a single incident.
The sentencing court must take that fact into consideration, of course, but it is simply one more factor for the court to consider in exercising its discretion. As the Scott court succinctly pointed out in its case, “All [defendant] was entitled to was consideration by the trial court whether, in the exercise of discretion, one should be stricken. The trial court considered that factor, but, in the exercise of its discretion, did not find that his violent record justified treating those two strikes—albeit arising from the same act—as one.” (Id. at p. 931, emphasis in original.)
Here, appellant argued below that “addressing the nature of the three strikes [] they all occurred during the same act.” It is “because of the nature of the strikes and the present conviction not being a violent felony, I’m asking the court to strike two of those and impose sentence.” The sentencing court noted it had considered the probation report, which contained a “discussion of Romero issues.” It then rejected appellant’s plea to strike the priors. Its explanation is helpful.
“The Three Strikes Law establishes a norm that requires the court to explicitly justify its decision to depart from that norm. The ultimate question is whether the defendant falls outside the spirit of the Three Strikes Law in whole or in part.
“The defendant appears to be a hard-core gang member whose allegiance to his gang prevents him from conforming his behavior to what is expected of a free, law-abiding society.
“The defendant is 33 years old, has been the subject of law enforcement intervention since the age of 15. His offenses include gang fights, car burglaries, drug offenses, possession of stolen car stereos, resisting arrest, and possession of a firearm by a felon in 2002, as well as the present offense.
“Since being incarcerated, he has committed 16 jail rule violations of which six were determined to be major. He has been placed on parole and on probation and has violated the terms and conditions of both. He suffered a previous conviction for possession of a firearm and was given a break by the court, which struck two of his strikes and sentenced him as a one-strike offender.
“In this case, the defendant was in possession of not only a firearm, but 200 rounds of ammunition. In the court’s opinion, either he was intending to engage in some very heavy duty gunfire or he was acting as the holder of a Varrio Viejo gang gun. In either case, Mr. Carrillo is a continuing danger. He denies responsibility for his actions, and he blames everyone but himself for his misdeeds.
“His conduct and mind set place him squarely within the spirit of the Three Strikes Law.
“[Counsel’s] arguments certainly are cogent, make sense, and I’m sure the judge at the prior court case took those things into consideration. One incredibly lenient break that the defendant received and he did not learn from. What is he doing a few years later? The exact same thing. He knew at that time he was subject to the Three Strikes Law, and yet he continued to engage in potentially deadly activity.
“I can see no justification for departing from the norm that requires imposition of the ultimate penalties under the third strike law. The court will decline to strike the defendant’s strikes.”
It is clear from the record that the sentencing court exercised its discretion in determining whether to strike the prior strikes. This is all appellant was entitled to under Penal Code section 1385. The court was not under a mandatory duty to exercise its discretion in a particular way; i.e., to strike two of the prior strikes. Appellant does not otherwise challenge the court’s exercise of discretion.
Accordingly, the judgment is affirmed.