Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2007028163, James P. Cloninger, Judge
Suzan Hier, 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, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Edward Michael Cortez appeals from the judgment following his guilty plea to assault with a deadly weapon (a knife) and his admission of gang, serious felony, strike, and prior prison term allegations. (Pen. Code, §§ 245, subd. (a); 186.22, subd. (b)(1); 667, subd. (a), (b) & (d)(1) & (3); 1170.12, subd. (a)(1), (c)(1).) The court sentenced appellant to serve 14 years in state prison. Appellant contends that the court abused its discretion in denying his motion to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On June 18, 2007, after receiving a complaint regarding gun shots, Oxnard Police officers responded to a residence on Juanita Street. A witness told the officers that the suspects ran into the house at 133 Juanita. Appellant and three other men were in the house, where officers also found handguns.
On July 20, 2007, at approximately 11:45 p.m., Michael Pantoja stood in front of his home on Juanita Street. Pantoja said that he had had problems with a Colonia gang member who believed he reported a gang shooting on Juanita Street to the police. Appellant, bearing a "Colonia" tattoo on his neck, approached and punched Pantoja in the left eye. Pantoja tried to run inside. Appellant and two other men stopped him and appellant punched him in the head. He also hit Pantoja in the head with the butt of a knife. Pantoja's head wound bled. When two other men came to help Pantoja, appellant and his accomplices left.
DISCUSSION
Appellant contends that the court abused its discretion in denying his Romero motion. We disagree.
A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of the Three Strikes law. (§ 1385; People v. Williams (1998) 17 Cal.4th 148, 161; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to exercise its discretion in this regard, the court "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, at p. 161.)
"[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 declining to dismiss...." (People v. Carmony (2004) 33 Cal.4th 367, 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.... 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."' [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, 34 Cal.4th at pp. 376-377.) Thus, only in "an extraordinary case-where the relevant factors described in [People v.] Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ-" would the failure to strike be an abuse of discretion. (Carmony, at p. 378.)
In denying appellant's motion, the court stated: "As to the Romero motion, that motion is respectfully denied. It is an old prior, but I think the People are correct, the defendant's record is very checkered since then. He has not had really any period of time in his life where he's been crime free. He hasn't been engaged in serious violent felony conduct in the recent past, but I think it would be an abuse of discretion for the Court to strike the prior and/or dismiss it [pursuant to] Romero in this case. We will proceed as a second strike case."
Appellant claims that the court did not seem to recognize the fact that it still could have imposed a 14-year sentence if it granted the Romero motion. He then argues that the court's failure to consider this important factor "was itself an abuse." This argument is not persuasive. The court stated that it "read and considered" appellant's written motion, which stated that "[g]ranting the Romero motion... and giving [appellant] a [14-year] sentence... would insure the public's safety...." The court recognized that it could impose a 14-year sentence if it granted the motion.
In challenging the denial of the Romero motion, appellant stresses that the prior offense occurred nearly 20 years before the current offense. He also notes that his 1989 robbery strike offense involved minimal violence--"push[ing] the victim away from [a] bicycle and [riding] away," and that after his release on parole in 1992, he "did not suffer another conviction for a violent or serious felony"; his subsequent offenses were "non violent,... primarily drug or alcohol/drug-related crimes[; and that] [o]nly one... was even a felony."
After reviewing appellant's record, we conclude that this is not one of those extraordinary cases in which the facts and circumstances compel the conclusion that the defendant should be treated as if he were not a recidivist. About a month after his release on parole, appellant was arrested in May 1992, for multiple weapons offenses and later pled guilty to possessing a weapon in violation of section 12021, subdivision (a). He was arrested and convicted, or pleaded guilty or no contest, on 12 separate occasions from September 1994 through July 2007, in addition to his arrest for the June 2007 assault. His probation was terminated as unsuccessful in two cases, and he violated parole on multiple occasions. The court acted within its discretion in denying appellant's Romero motion.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.