Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA059870, Teri Schwartz, Carlos A. Uranga, Clifford L. Klein, Lisa B. Lench, Judges.
Randy S. Kravis, 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, Senior Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Douglas Carson appeals from the judgment entered following his no contest plea to two counts of robbery, counts 1 and 2 (Pen. Code, § 211), one count of possession of cocaine, count 3 (Health & Saf. Code, § 11350, subd. (a)), his admission that he suffered two prior convictions of a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)), served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) and suffered two prior serious convictions within the meaning of Penal Code section 667, subdivision (a)(1). The court denied appellant’s Romero motion as to count 1 and sentenced him to prison for life with a minimum term of 25 years, plus 10 years for the two enhancements under Penal Code section 667, subdivision (a)(1). The court granted appellant’s Romero motion as to counts 2 and 3 and sentenced him to concurrent terms of three years and two years respectively. He contends the trial court abused its discretion when it denied his request to dismiss the prior strike allegations as to count 1 pursuant to Penal Code section 1385, subdivision (a). For reasons stated in the opinion, we affirm the judgment.
Appellant pled to all charges, admitted all allegations and no promises were made by the prosecution or the court.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL SUMMARY
On December 10, 2004, appellant entered the Arcadia branch of Citibank and handed the teller a note which read, “This is a robbery, it will be alright. No alarms, dye packs, or devices. 100’s, 50’s, and 10’s remember the bottom drawer too!” The teller was frightened, opened her drawers and started to take out her cash. She hesitated and appellant said, “That’s enough.” She gave appellant approximately $2,200 and he walked out of the bank. Appellant made no gesture that made her feel he had a weapon or that he was going to harm her.
On December 18, 2004, appellant entered the Arcadia branch of Downey Savings and slipped a bank teller a note. The note said, “Don’t pull any alarms. Give me all your cash from your top drawer and bottom drawer.” Appellant said “give me all [5’s], 20’s, 100’s.” The teller felt frightened. She gave him $1,800. First she gave him $100 of “bait money.” When he said he needed more money, she gave him ten $100 bills. When appellant said he still needed more money, she gave him $500 in 20’s. The teller gave appellant “some loose money” and when he said he needed more, she said she did not have any more “out here.” She told him she would have to go to the back. He said “that’s fine” and turned around and walked out. Appellant made no gesture that made the teller believe he had a weapon.
On December 20, 2004, police officers searched appellant’s motel room and recovered 4.79 grams of a solid substance containing cocaine base.
DISCUSSION
Appellant contends the trial court abused its discretion when it denied his request to dismiss the prior strike allegations as to count 1 pursuant to Penal Code section 1385, subdivision (a). Appellant argues there were several mitigating factors supporting a dismissal. First, each of appellant’s prior bank robberies that served as the basis for the strike allegations was committed in the same non-violent manner as the two instant bank robberies. Appellant gave the tellers a demand note and exited the bank after receiving the money. The first strike involved two separate bank robberies, one July 20, 1991 and the second was July 22, 1991. The second strike was based on a 1997 federal conviction involving three separate bank robberies committed in July 1996.
In addition to the five bank robberies, appellant suffered five other prior convictions, a 1988 felony conviction for writing a bad check, a 1990 felony conviction for forgery, a 1988 misdemeanor conviction for driving without a valid license, a 1989 misdemeanor conviction for automobile theft, and a 1991 misdemeanor conviction for possession of drug paraphernalia. Appellant argues these were all non-violent offenses.
As a second factor in mitigation, appellant argues that each bank robbery, including the two current ones, was motivated by appellant’s severe addiction to cocaine and his need for money to obtain more cocaine. Further, appellant suffered from a psychotic disorder first diagnosed in 1992, with a psychiatric hospitalization in 1978 and several suicide attempts.
As a third factor, appellant argues, his prospects were good. He repeatedly demonstrated a serious interest in overcoming his cocaine addiction, completing drug programs, Alcoholics Anonymous and Narcotics Anonymous meetings. Following each release from prison, appellant remained clean and sober until he suffered a sudden and unexpected relapse which would cause him to commit bank robberies.
At the hearing on the Romero motion, a number of individuals spoke in support of appellant, asserting that he was peaceful, non-violent and trusted and that he had been clean and sober for eight years before his relapse.
The probation report reflects that in 1988, he was convicted of driving without a valid license, a misdemeanor (Veh. Code, § 12500, subd. (a)), was sentenced to jail for five days, and was convicted of writing a check upon an account with insufficient funds, a felony (Pen. Code, § 476a), and placed on five years’ formal probation. In 1989 probation was revoked and he was sentenced to prison for 16 months. In 1989 he was convicted of taking a vehicle without the owners consent, a misdemeanor (Veh. Code, § 10851, subd. (a)), was placed on one-year summary probation and was sentenced to 180 days in jail. In 1990, he was convicted of forgery, a felony (Pen. Code, § 470), and was sentenced to prison for two years. In 1991, he was convicted of possession of controlled substance paraphernalia, a misdemeanor (Health & Safety Code, § 11364), and was sentenced to 11 days in jail, was convicted of forgery, a felony (Pen. Code, § 470), and was sentenced to prison for two years. The People’s sentencing memorandum and exhibits reflect that in July 1991, appellant committed two bank robberies, pled guilty in federal court to one count and was sentenced to prison for 72 months. He, thereafter, violated the terms and conditions of his supervised release and was ordered imprisoned for one year. In July 1996, appellant committed three separate bank robberies and in December 1996, in federal court, he pled guilty to these three crimes. He was sentenced to prison for 94 months on each count, counts 2 and 3 to run concurrent.
During the hearing, the court explained that when it first looked at the case and saw the two prior robbery convictions it had no idea that each of these robbery convictions involved separate, multiple robberies. The fact of the numerous prior robberies is “what makes this case so difficult for me, because I’m not dealing with someone who I can find extraordinary circumstances to strike[.]” The court stated “in all candor, while the facts of all of these crimes clearly show that the defendant avoided using a weapon, threatening victims, there was no expressed threat of force. . . . [¶] . . . [i]t’s clear to me that no matter how one looks at it, looking at an individual who has been responsible for the commission of multiple bank robberies on three separate occasions at least, because the first case and the second case all involved different dates. And our case involves two different dates. So it’s certainly a case that was worthy of attention by way of a Romero motion, but in all honesty, I don’t know how I can be faithful to the law and strike strikes on all counts.”
The court continued that while it was clear appellant was a drug addict and had mental issues, “it would be a manifest injustice and a violation of my oath if I were to give him a break by striking strikes. The Three Strikes law really ties my hands and while on a personal level, I might feel and I do feel horrible because I do think Mr. Carson is deserving of some leniency here, because bank robberies normally involve much more egregious facts than what we have here. But nevertheless these are bank robberies, multiple bank robberies and every single one of the victims . . . feared for their life.” The court cited People v. Carmony (2004) 33 Cal.4th 367 as authority for its position. The court continued that “[T]his is a career criminal. This is a habitual offender. This is a person [for whom] the Three Strikes law was meant to apply . . . .”
The court addressed appellant, stating, “I know that you have gone out of your way to try to not commit a violent crime. I know that you have an addiction problem. I know that you have mental health issues. I know that you have a lot of good characteristics. And I suspect that’s why there were so many people who came in here on your behalf and said very positive things about you. I can’t do what you’re asking me to do and be faithful to the law.”
“In 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
A court’s failure or refusal to dismiss or strike a prior conviction allegation under Penal Code section 1385 is subject to review under the deferential abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th 367, 375.)
“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 legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] 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.’”’ [Citations.] 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.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) Our review of the record indicates the trial court understood it had the discretion to strike priors and its decision not to was neither irrational nor arbitrary. Contrary to appellant’s assertion, the court did not misunderstand the extent and scope of its discretion. Rather, the court’s comments indicated it understood its obligation to follow the law.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.