Opinion
B187550
12-6-2006
THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE CROSNOE, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant David Wayne Crosnoe was sentenced to 7 years 8 months following a court trial in which he was convicted of being under the influence of a controlled substance, vandalism, and making criminal threats. (Health & Saf. Code, § 11550, subd. (a); Pen. Code, §§ 594, subd. (a); 422.) The trial court also found he had one prior serious felony conviction and had served one separate prison term. (Pen. Code, §§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) Appellant contends the court abused its discretion by refusing either to strike a prior felony conviction or to reduce the felony convictions for making criminal threats to misdemeanors. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The information was filed on February 18, 2005. Criminal proceedings were suspended on March 3, 2005, pursuant to Penal Code section 1368 and appellant was ordered examined by two court-appointed psychiatrists. Criminal proceedings were reinstated on April 14, 2005, after the court found appellant was mentally competent.
Appellant waived jury trial and a court trial was held on October 17, 2005. The evidence at trial was Annette and Sergio Camacho lived in Montebello with their infant son. Appellant and his roommate were neighbors. In the middle of December 2004, appellant drove into the Camachos driveway. Mrs. Camacho telephoned appellants roommate for help. When the roommate arrived, appellant said he was going to kill the Camachos. On December 21, 2004, appellant parked across the street from the Camacho house and serenaded Mrs. Camacho. Early the next morning, the Camachos were awakened by appellant ringing their doorbell and pounding on their house windows, breaking eight of them, including the window in the infant sons room. Appellant repeatedly threatened to kill the Camachos and screamed to be let inside the house. Mrs. Camacho telephoned police. Mr. Camacho, a police officer, suspected that appellant was under the influence of methamphetamine. Mr. Camacho retrieved his handgun and ordered appellant to leave. Police arrived and the arresting officer concluded that appellant was under the influence of methamphetamine.
In appellants defense, the trial court heard testimony from appellants roommate, John Salazar, and psychologist, Dr. Donald Fairbanks, that appellant suffered from mental illness, either paranoid schizophrenia brought on by excessive methamphetamine use or bipolar disorder with psychotic features. When appellant made his threats, he was responding to auditory hallucinations.
The trial court found appellant guilty as charged. Based on his admissions, the court also found appellant had suffered one prior serious felony conviction and had served one prior prison term within the meaning of the "Three Strikes" law.
At the sentencing hearing, defense counsel requested the court to exercise its discretion either to strike appellants prior conviction for voluntary manslaughter (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; Pen. Code, § 1385) or to reduce appellants felony convictions for making criminal threats to misdemeanors (Pen. Code, § 17(b)), and grant appellant probation on condition he undergo residential treatment for mental illness and substance abuse. Counsel argued because appellants mental illness induced him to commit the crimes, it mitigated the degree of his culpability; appellant harbored no malice towards the Camachos. Counsel further noted the voluntary manslaughter conviction was remote, having occurred in 1984, and appellant had committed no other serious felonies since that date. Additionally, appellant was not armed, making his offenses less egregious.
The prosecutor opposed the requests by pointing out that appellants criminal behavior ceased only when he was imprisoned at length for voluntary manslaughter, and when released appellant returned to committing crimes. He was on parole at the time of the current offenses. The prosecutor argued that appellants mental illness did not mitigate his culpability because appellant specifically targeted the Camachos and posed an ongoing threat to them and to the community. The prosecutor asked the court to deny the defense requests and to impose a nine-year prison sentence.
In denying the defense requests the trial court examined the nature and circumstances of the current crimes, specifically appellants increasingly dangerous fascination with the victims, his use of violence against them, and the victims particular vulnerability when the crimes occurred. The court assessed appellants conviction for voluntary manslaughter as reflecting a history of violence. Additionally, the court considered appellants mental illness and related substance abuse which, although did not warrant striking the prior felony conviction or reducing the current felony convictions, did justify imposing "the minimum sentence."
The trial court sentenced appellant to an aggregate state prison sentence of 7 years 8 months, consisting of 32 months (the lower term of 16 months doubled) for making criminal threats, plus 5 years for the prior serious felony conviction under Penal Code section 667, subdivision (a)(1). The court imposed concurrent terms of 32 months (the lower term of 16 months doubled) each on the felony vandalism count and on the remaining count of making a criminal threat. Appellant was ordered to serve 90 days in county jail on the count of being under the influence, with credit for time served.
DISCUSSION
1. The Romero Motion
Appellant contends the trial court abused its discretion in denying his Romero motion by improperly focusing on his 1984 voluntary manslaughter conviction and ignoring mitigating factors, including appellants mental illness and related substance abuse. According to appellant, the court determined appellant was not outside the spirit of the Three Strikes law merely because he had suffered a prior strike conviction.
Pursuant to Penal Code section 1385, subdivision (a), the trial court may strike a prior felony conviction "`in furtherance of justice." (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court and the reviewing court "must consider whether, in light of the nature and [circumstances] of his present felonies and prior serious and/or violent convictions, and circumstances of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part . . . ." (Ibid.) At the very least, the reason for dismissing a strike conviction must be that which would motivate a reasonable judge. (Id. at p. 159.)
A trial courts decision not to dismiss a strike conviction is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Such a decision will not be reversed merely because reasonable people might disagree. An appellate court may not substitute its judgment for the judgment of the trial court. (Id. at p. 377.) There is no abuse of discretion unless the trial courts decision is "so irrational or arbitrary that no reasonable person could agree with it." (Ibid.) Once the trial court has exercised its discretion, and does not dismiss the prior conviction, this courts role on appeal is very limited.
We reject appellants claim the trial court focused exclusively or inordinately on the 1984 manslaughter conviction in denying his Romero motion. The court considered the prior conviction in conjunction with the nature and circumstances of the current offenses, as reflecting appellants continuing danger to the victims and to society. Despite the fact appellants strike conviction occurred some 20 years before the current offenses, the record establishes appellant to be a recidivist with poor prospects for the future. Under such circumstances, a trial court does not abuse its discretion in refusing to dismiss a prior conviction, even where, as here that conviction is a number of years old. (See, e.g. People v. Williams, supra, 17 Cal.4th at pp. 162-164 [abuse of discretion to dismiss 13-year-old prior conviction where little or nothing favorable to defendant in his record, background, character, or prospects].)
Appellant contends, however, that the trial court ignored the staleness of his voluntary manslaughter conviction and the particulars of his background, especially his mental illness, his efforts to self-medicate by substance abuse, and the fact that apart from his current convictions, appellants most recent offenses were being under the influence of a controlled substance (for which he was successfully diverted), driving under the influence of alcohol, possession of 28.5 grams or less of marijuana, and forgery. Here too, the record does not support appellants claim. The trial court considered the factors relevant to its decision, including appellants history of mental illness and substance abuse, the nature and circumstances of his current offenses and his voluntary manslaughter conviction. As for the age of appellants manslaughter conviction and the nature of his more recent offenses, these factors were before the court, through the probation officers report and argument of defense counsel. We presume the court considered them since the record does not affirmatively reflect otherwise; it is not necessary for the trial court to address each independently. (People v. Evans (1983) 141 Cal.App.3d 1019, 1022.) The trial court did not abuse its discretion in concluding appellant did not fall outside the Three Strikes law.
Significantly, although the trial court denied the Romero motion, the court did determine that the assertedly mitigating factors made it appropriate to impose the lower term as the base term instead of the middle term sought by the prosecution.
2. The Motion to Reduce Felonies to Misdemeanors
In a related contention, appellant argues the trial court improperly denied his motion to reduce his felony convictions for making criminal threats to misdemeanors by ignoring the mitigating factors urged by defense counsel.
We review the trial courts decision whether to reduce a "wobbler" offense from a felony to a misdemeanor pursuant to Penal Code section 17, subdivision (b) for abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-981.) In exercising its discretion, the trial court must examine the nature and circumstances of the offense, defendants attitude toward the offense, the defendants behavior in court, and the general sentencing objectives of California Rules of Court, rule 4.410. A defendant bears the burden of establishing that his sentence was unreasonable. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives and its decision will not be set aside on review. (Alvarez, at pp. 977-978.) We do not substitute our judgment for that of the trial court; our standard of review is "extremely deferential and restrained." (Id. at p. 981.)
Here too, although the trial court did not mention all of the factors urged by defense counsel, that failure alone does not satisfy appellants burden of establishing the court did not consider the relevant factors. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836-837 [trial court is presumed to have considered all relevant factors unless the record affirmatively shows otherwise].) The court had observed appellants attitude and demeanor during trial, and had heard and considered the arguments of counsel. We find no abuse of discretion in the denial of appellants request to reduce his felony convictions for making criminal threats to misdemeanors.
DISPOSITION
The judgment is affirmed.
We concur:
PERLUSS, P.J.
JOHNSON, J.