Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF028246 Mark Mandio, Judge.
Alan S. Yockelson, 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, Rhonda Cartwright-Ladendorf and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Based on an indicated sentence of 25 years to life, defendant and appellant Efrain Garcia Demara pled guilty to possessing a firearm after being convicted of a violent crime (Pen. Code, § 12021.1, subd. (a)) and possessing methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1).
Undesignated statutory references are to the Penal Code.
Defendant admitted a 2000 conviction for robbery (§ 211) and a 1998 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)). Each admitted conviction constituted a strike (§ 667, subds. (c) & (e)(2)(A)) and a prison prior enhancement (§ 667.5, subd. (b)). Prior to sentencing, defendant filed a Romero motion requesting the trial court dismiss one or both strike priors. Defendant contends the trial court abused its discretion by refusing to strike at least the strike from 1998. We affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
BACKGROUND
Defendant has been incarcerated most of his life since turning 15. He was most recently released from prison in November 2008. After his release, he would usually use methamphetamine to get up in the morning and use heroin, alcohol, and marijuana later in the day. On March 20, 2009, defendant’s vehicle was stopped by sheriff’s deputies. He admitted being on parole and informed the deputies of a handgun tucked into his pants. The handgun had six rounds in its magazine and a round in the chamber. Defendant was carrying.50 grams of methamphetamine and a syringe in his pants pockets.
Defendant pled guilty on November 13, 2009; the trial court informed him that “[t]he sentence required for a plea to these charges and allegations is 25 years to life” and told him “I don’t want you to be under any illusions. Under very limited circumstances are you authorized to strike a strike prior-[¶]... [¶]-allegation or the punishment. But those circumstances are extremely limited. [¶]... [¶]... I’ll listen to all sides, and we will send this out to a probation report. But the required sentence if I don’t find any cause to strike a strike is 25 to life.”
At the sentencing hearing on January 21, 2010, the trial court refused to strike either strike; it struck the punishment of both prison prior enhancements and imposed concurrent 25-year-to-life sentences for both counts. The trial court explained its reasoning, “[W]hen we talk about the three strikes law, it’s not just an exercise of discretion but, also, I have to consider whether you fall within the spirit of the three strikes law, and... consider several factors when we do that: What’s your prior history like; what’s the nature of the prior offenses, particularly the strikes; what are your prospects for rehabilitation. [¶] In other words, the whole purpose of this law is to punish people who have reoffended and, frankly, are likely to reoffend again. So what are your prospects for not reoffending... I looked through everything carefully. I know you pled guilty and accepted responsibility for these charges. I did tell you that I would take a look at this, but you know that the law is strict in this regard. [¶] I did note that your prior record is not extensive as far as the number-sheer number of convictions, but what bothers me most is, sir, essentially you’ve been in trouble since you’ve been a juvenile, which you admitted to, which you talked to with the probation officer. [¶] You did have a family background. I understand that. As a result, you ended up on the streets. You got involved with a gang, which was a bad situation. However, the problem is there’s no real conduct indicating that you’ve done anything but engage in criminal conduct for a long period of time. I don’t see anything else but that. There may be reasons for that, and I do understand and acknowledge those, but that’s the simple fact is that pretty much your entire life from the time you were a young person or young boy, you’ve been engaged in criminal conduct, some of which show up as criminal convictions or juvenile adjudications. [¶] The first offense, the first prior strike, if that alone were the only issue here, I might consider exercising my discretion. It was with a pellet gun. I certainly acknowledge that they can be deadly weapons, but I have to also say you were an adult at the time, and you shot at a person who was not an adult. And, certainly, it wasn’t something that was done apparently out of a joke but out of anger at that person. [¶] The second thing is the next strike, though, is much more serious. It’s a robbery with a knife. So things didn’t get better. Things got worse. And most of your adult life, as a result of those two convictions, has been spent in prison. So as far as I can tell, that’s what stopped criminal conduct. Because shortly after you had gotten out, maybe a period of months, but it’s not a long period of time. [¶] You were pulled over this most recent case, and had a loaded gun in your waistband. And then there was a loaded gun, also, I believe on your girlfriend. What’s to your credit is that you took responsibility immediately. That you took responsibility for her, too. But the problem is you have a loaded gun. You’re not supposed to have any weapons, period. And frankly, the excuse didn’t make a lot of sense to me, which was that you had been shooting on the reservation and forgotten about the gun. Either way, you shouldn’t have been shooting. The gun itself is-you’re just not allowed to have, period. But then to go out in the town with it in your waistband, I don’t necessarily disregard your reasoning for that, which is you had made enemies in prison. I understand that happens. You’re afraid of them. [¶] But the bottom line is I am required to decide at this stage am I going to protect the public or am I going to allow [defendant], which I couldn’t even if I wanted to, do what he thinks he needs to do to protect himself. I’m not saying-I’m not discounting your reason. I’m just saying society will not allow it, period. [¶] And for those reasons, I think this most recent offense indicates, as well as your past, that the possibility of not reoffending is very low. I think the possibility is relatively high. And therefore, I chose not to exercise my discretion to strike the strike.”
DISCUSSION
Defendant contends the trial court abused its discretion by failing to strike his 1998 strike prior. The People contend the trial court did not abuse its discretion. We agree with the People.
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Defendant has the burden of demonstrating an abuse of discretion and, in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) Even if we might have ruled differently in the first instance, we will affirm the trial court’s ruling as long as the record shows the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (Id. at p. 378.) An exercise of discretion to strike a prior conviction pursuant to Penal Code section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant’s constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts “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.) There is a “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be “extraordinary” for a career criminal to be deemed to fall outside the scheme of the Three Strikes law. (Carmony, at p. 378.)
The trial court’s ruling affirmatively shows that the trial court reviewed defendant’s present felonies, prior strikes, background, character, and prospects. Thus, there is no indication that the trial court failed to consider any relevant information before it that would render defendant’s circumstances extraordinary. While defendant understandably emphasizes the victimless nature of his present offenses, his acceptance of responsibility for his criminal behavior, his difficult childhood, and the motivational impact from the birth of his daughter, we do not reweigh the factors. (See Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, defendant has failed to overcome the “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion.” (In re Large, supra, 41 Cal.4th at p. 551.)
DISPOSITION
The judgment is affirmed.
We concur: KING J.MILLER J.