Opinion
D058056
08-01-2011
THE PEOPLE, Plaintiff and Respondent, v. CLEMENTE DELEON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD218258)
APPEAL from a sentencing order of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed.
Clemente Deleon pleaded guilty to the crime of assault by means likely to produce great bodily injury and to an enhancement of personally inflicting great bodily injury on the victim. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) He also admitted to a prior strike for a 1990 assault with a firearm. (§ 245, subd. (a)(2).) After denying Deleon's request to dismiss his strike prior, the trial court sentenced Deleon to an upper term of four years on the substantive offense, doubled because of the prior strike, three years on the enhancement and five years on the prior serious felony allegation, for a total prison term of 16 years.
Unless otherwise indicated, further statutory references are to the Penal Code.
On appeal, Deleon contends the trial court abused its discretion when it denied his motion to dismiss the prior strike. We affirm.
FACTS
In the early morning hours on January 1, 2009, Clemente Deleon, Jorge Galarza and several other unidentified individuals drove from Los Angeles to San Diego to punish Jerry Taaga for communicating with Galarza's wife. They arrived in San Diego at approximately 4:00 a.m. and found Taaga at a New Year's Eve party. Galarza hit Taaga in the face with a baseball bat. Deleon repeatedly hit and kicked Taaga's face with his fists and feet while others held Taaga on the ground, pinning his hands and feet.
As a result of the assault, Taaga's nose and cheekbones were shattered. He suffered a basal skull fracture, broken eye orbits, a broken lower jaw and broken bones in other areas of his body. There was a shoeprint pattern on his forehead. To save his life, physicians placed Taaga in a medically induced coma. Taaga required multiple procedures and surgeries and remained in a longterm care facility for nine months. Due to the nature of his injuries, Taaga had a permanent breathing tube implanted and was required to undergo breathing treatments four times a day.
Deleon was charged with attempted murder (§§ 187, subd. (a), 664), assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and battery with serious bodily injury (§ 243, subd. (d)). All three crimes carried an enhancement of personal infliction of great bodily injury. (§ 12022.7, subd. (a).) The prosecution also alleged Deleon was convicted of assault with a firearm in 1990 under section 245, subdivision (a)(2), which constituted a prior serious felony conviction and a strike prior. (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c).)
Codefendant Galarza was similarly charged, and had additional charges for personally using a deadly weapon. He received a sentence of eight years in state prison.
In exchange for dismissing the counts of attempted murder and battery, Deleon pleaded guilty to assault with a deadly weapon and the enhancement of inflicting serious bodily injury, and admitted the strike prior. Deleon indicated he understood the maximum punishment he could receive was 16 years in state prison, a $10,000 fine and four years parole. A provision of the plea agreement stated "I give up my right to appeal the following: 1) denial of my section 1538.5 motion, 2) issues related to strike priors (under [ ] sections 667[, subds. ](b)-(i) and 1170.12), and 3) any sentence stipulated herein." The trial court accepted Deleon's plea on September 15, 2009, and set a sentencing date for November 17, 2009.
The defense filed a statement in mitigation and invited the trial court to strike the strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero motion). The defense also requested that the trial court not impose any additional punishment for the serious bodily injury enhancement. The prosecution filed a statement in aggravation, and sought the maximum term of 16 years in prison.
Deleon asked the trial court to consider the fact the prior strike was committed 20 years earlier, when he was 17 years old. According to Deleon, that incident involved gang retaliation against an individual that had repeatedly assaulted him. He now had a wife and six children to support, and they would be seriously impacted by his sentence. An employer said Deleon had a strong work ethic and excelled in each position he had. Deleon asked the court to consider the difference in culpability between him and codefendant Galarza, who had an ongoing dispute with the victim, played a leadership role in the crime and used a weapon. Galarza received an eight-year sentence. Deleon stated granting his requests would avoid an unjust disparity of sentencing.
The prosecution stated the crime involved great violence and serious bodily harm, with a high degree of cruelty, viciousness and callousness. Taaga was particularly vulnerable because he was the target of a group beating and he was deaf and mute. The fact Deleon was also deaf and mute did not reduce Taaga's vulnerability. Deleon and the other perpetrators drove from Los Angeles to San Diego to carry out the attack, which required advance planning. Deleon previously engaged in violent conduct and showed a proclivity for extreme violence by assaulting another person with a deadly weapon.
The probation officer recommended that the trial court sentence Deleon to 16 years in prison. In 1990 Deleon was sentenced to seven years in prison for assault with a deadly weapon. In 1994 he was sentenced to four years in state prison after he violated parole on a robbery related offense. In 1999 and 2002 Deleon was convicted of spousal abuse and was granted probation. A letter from Taaga's sister, Rosa Taaga-Wilson, was attached to the probation report. She detailed the life-changing impact the crime had on her brother and their family.
At the sentencing hearing, the trial court stated it had read and considered the probation report and recommendation, and attached letter from Taaga-Wilson, the defense statement and the numerous letters from Deleon's friends and family in support of his request for leniency, and the prosecution statement.
Deleon's wife, Maria, spoke on his behalf. She acknowledged past problems but said her husband had changed his life and was a good provider, husband and father.
Taaga described the assault. He said he was in terrible pain after the beating and survived only through God's help.
In considering the Romero motion, the trial court found that the current offense was extremely serious and violent, and Deleon had a history of violence. The strike prior involved the reduction of a charge from attempted murder to assault with a firearm. The trial court determined in view of all the circumstances that Deleon's prior strike and criminal record were not remote in time, and denied the motion to strike the strike prior. After weighing the mitigating and aggravating factors, and giving particular weight to the violent and extreme nature of Deleon's assault on Taaga, the trial court imposed the maximum sentence of 16 years.
DISCUSSION
Deleon contends the trial court abused its discretion when it denied his motion to strike the prior strike. He asserts he does not fall within the spirit of the Three Strikes law because of his background, character and prospects, and because the prior strike was committed when he was 17 years old, approximately 20 years earlier.
A
Before we discuss the merits of Deleon's claim, we address the People's contention Deleon expressly waived his right to appeal "issues related to strike priors (under sections 667[, subds.] (b)-(i) and 1170.12 . . . )." The People argue the word "issues" includes Deleon's instant challenge to the trial court's denial of his Romero motion.
Deleon contends the use of the term "issues" does not specifically and expressly limit his right to challenge the trial court's ruling on his Romero motion for abuse of discretion. He states he is not challenging the validity of the strike. Deleon argues the plea agreement did not encompass sentencing, which was left to the discretion of the trial court, and he did not waive his right to challenge the sentence.
The terms of the plea agreement are ambiguous and contradictory whether Deleon waived his right to appeal the ruling on the Romero motion. Section 667, subdivision (e)(1), addresses the effect of a prior strike on sentencing, and would thus appear to fall within the agreement to waive appellate rights for "issues related to strike priors (under sections 667[, subds.] (b)-(i) . . . )." However, the agreement expressly stated Deleon waived his right to appeal a stipulated sentence. The agreement did not require Deleon to waive his right to appeal a non-stipulated sentence.
If the terms of the plea agreement are ambiguous or uncertain, they are interpreted with regard to the belief of the promisor and the understanding of the promisee at the time the plea agreement was made. (People v. Shelton (2006) 37 Cal.4th 759, 767.) The record shows that the parties agreed to leave the sentencing decision to the trial court. During the plea colloquy, the trial court advised Deleon "this is an open sentencing. There's no deal as far as how much time you'll have to serve in the state prison." The defense understood that the prosecution was seeking the maximum sentence. The prosecution understood that the defense would ask the court to strike the strike prior and the enhancement, and impose a lesser sentence. The language of the plea agreement did not clearly and explicitly require Deleon to forgo a ruling under Romero and/or waive his rights to appeal a denial of such a motion, which impacts the sentence imposed. We conclude that under the terms of the plea agreement, Deleon did not waive his right to challenge his sentence, including the denial of his motion to strike the strike prior.
B
The trial court has limited discretion under section 1385 to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The language of section 1385 permits dismissals "in furtherance of justice." In such proceedings, the court must assess both " 'the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal.' " (Romero, supra, at p. 530, quoting People v. Orin (1975) 13 Cal.3d. 937, 945.)
In ruling whether to strike a prior violent felony conviction allegation, the court considers the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and his or her background, character and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) "When the balance falls clearly in favor of the defendant, a trial court not only may but should exercise the powers granted to him by the Legislature and grant a dismissal in the interests of justice." (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 505; People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)However, the People have a legitimate interest in the fair prosecution of crimes properly alleged.(Romero, supra, 13 Cal.4th at p. 531; People v. Strong (2001) 87 Cal.App.4th 328, 337 [the purpose of the Three Strikes law is to ensure longer prison sentences and greater punishment for those who commit a felony and have a prior conviction for a serious felony].)
A trial court's ruling to dismiss or strike a sentencing allegation is reviewed for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531; Carmony, supra, 33 Cal.4th at p. 375.)
Deleon argues the nature and circumstances of his present and prior offenses suggest he falls outside the scheme of the Three Strikes law. Deleon argues 20 years have passed since his prior strike offense, 15 years since his last felony conviction, and more than seven years since his last arrest. His prior strike occurred when he was 17 years old. Deleon contends that despite his past, his prospects improved with the support and influence of his church and community. He asserts he is a hard working family man, and is capable of being a productive member of society. Further, he did not initiate the incident against Taaga and did not hit him with the bat that caused his serious injuries.
Deleon does not show that the trial court abused its discretion when it considered the nature and circumstances of his present and prior felonies, and his background, character and prospects. (Williams, supra, 17 Cal.4th at p. 161.) The trial court said it understood the argument codefendant Galarza might be more culpable than Deleon, but Galarza did not have the criminal record that Deleon did. This fact is undisputable. Deleon's current and prior felonies were crimes of extreme violence and may have but for fortune resulted in the death of the victims. There is no evidence to support Deleon's argument his codefendant caused Taaga's lifelong injuries. Deleon acknowledged he knew that Taaga was half-conscious during the assault.
Although Deleon's strike prior occurred 20 years ago, he did not abide by the law during the intervening years. His performance on probation and parole was unsatisfactory. Deleon's decision to willingly participate in a group beating of Taaga shows he was still more influenced by his peers than by the needs of his family, the dictates of his community or the lessons of his prior criminal proceedings. The trial court reasonably exercised its discretion when it did not deem Deleon outside the spirit of the Three Strikes law, and sentenced him accordingly in view of his prior serious and violent felony. (Williams, supra, 17 Cal.4th at p. 163.)
DISPOSITION
The order is affirmed.
NARES, Acting P. J. WE CONCUR:
HALLER, J.
IRION, J.