Opinion
F061811 Super. Ct. No. F10902048
12-23-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES THOMAS DEXTER, Defendant and Appellant.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Poochigian, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On September 2, 2010, appellant, James Thomas Dexter, was charged in an information with battery involving serious bodily injury (Pen. Code, § 243, subd. (d), counts one & two), assault by means likely to cause great bodily injury (§ 245, subd. (a) (1), count three), threatening a witness (§ 422, count four), felony false imprisonment (§ 236, count five), and misdemeanor vandalism (§ 594, subd. (b)(2)(A), count six). The information also alleged a prior serious felony conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) within the meaning of the three strikes law (§§ 667, subds. (b) -(i) & 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)) for the same prior conviction.
All statutory references are to the Penal Code.
On October 8, 2010, appellant waived his constitutional rights and entered into a plea agreement. Appellant admitted all six counts and the special allegations. Under the terms of the agreement, appellant's sentence would have a lid of 13 years with the possibility of a lower term. On January 3, 2011, appellant filed a request that the trial court strike the prior serious felony conviction allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On January 5, 2011, the trial court declined to exercise its discretion to strike the prior serious felony conviction pursuant to Romero. The court sentenced appellant to prison for three years on count one, doubled pursuant to the three strikes law to six years, a consecutive term of two years on count two, and a consecutive term of five years for the prior serious felony enhancement for a total prison term of 13 years. The court stayed appellant's conviction on count three pursuant to section 654 and imposed concurrent sentences on counts four and five. The court granted total custody credits of 385 days.
Appellant contends the trial court abused its discretion in denying his Romero motion. We disagree and will affirm the judgment.
FACTS
Assault of Victim
On April 24, 2010, appellant and his girlfriend, Victoria L., had a barbeque at appellant's apartment and then went to a bar in Clovis were they both had drinks. They began a "little" argument in the bar. Appellant and Victoria L. went back to appellant's apartment where the argument "pursued into something else."
When they reached appellant's apartment, appellant kicked out the windshield in Victoria L.'s car. When Victoria L. tried to go inside appellant's apartment to get her things, appellant pushed her and she hit her head on the concrete. Appellant grabbed Victoria L. by her ponytail and throat and pushed her inside his apartment.
Appellant threw Victoria L. over a couch. She was between a couch and a coffee table when appellant began to choke Victoria L. with his elbow around her neck. Victoria L. tapped appellant's shoulder to let him know that she could not breathe and then lost control of her "bowel movements." Victoria L. lost consciousness.
Victoria L. regained consciousness and became frantic. Appellant pushed her up against the wall by the television. Appellant eventually let Victoria L. go. She ran to collect her belongings. After collecting her things, Victoria L. ran to her car and threw her things into the back seat. When Victoria L. tried to get into the front seat, appellant sat next to her on the "little ledge" to the front seat. Appellant tried to rip Victoria L.'s car key out of the ignition. Victoria L. tried to push the horn and her emergency beacon. Appellant grabbed her hand and twisted it to the extent that Victoria L. thought appellant had snapped her wrist.
Victoria L. did not live in appellant's apartment.
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As Victoria L. began to scream, appellant jerked her neck and had his forearm against her throat so she could not breathe and she again passed out. Victoria L. was screaming and crying. She told appellant that he was going to snap her neck and that he was going to break her wrist. Appellant said nothing in response. Appellant twisted Victoria L.'s neck. She thought he did so to make her stop screaming. Appellant told Victoria L. he wanted to kill her, he would cut her up, and feed her to his pit bull. Both appellant and Victoria L. were intoxicated.
After passing out, Victoria L. woke up to appellant tapping her face and telling her to wake up. Appellant wanted her to come back inside his apartment. Appellant got up and Victoria L. left in her car. Appellant competes professionally in mixed martial arts. Victoria L. went to the emergency room and was told she had a strained neck and wrist. Victoria L. suffered bruises on her arm, neck, shoulders, eye, and forehead. Four months after the assault, Victoria L. still suffered pain in her wrist and really bad headaches.
Romero Hearing
Appellant's memorandum of points and authorities in support of his Romero request stated that he served in the Navy after graduating from high school, remained continuously employed as a heavy equipment operator, and worked as a mixed martial arts fighter. Appellant has children and "plays a significant role in each of their lives." Appellant has a long history of major mental health problems. In the military, appellant attempted suicide. In 2004, he was diagnosed with severe depression. In 2007, appellant was diagnosed with Post Traumatic Stress Disorder. Appellant would medicate himself with excessive consumption of alcohol. Appellant would drink between a pint and 750 ml. of alcohol a day and suffered several blackouts a month.
In 1992, appellant was convicted of misdemeanor theft. Between 1993 and 1997, appellant was convicted seven times for driving with a suspended license. Appellant had a conviction in 1994 for an alcohol-related reckless driving. In 1996, appellant was convicted of two counts of misdemeanor battery. Appellant had several violations of probation for his misdemeanor convictions. In 1996, appellant was convicted of felony assault with a deadly weapon. Although appellant was placed on probation, his probation was revoked and he was placed in prison. In 1998, appellant was convicted of felony spousal abuse. Appellant violated parole three times for this conviction.
Several members of the community, including the mother of one of appellant's children, sent letters to the court seeking leniency in sentencing. The victim sent a letter stating that she hopes appellant gets help for his problems, but that appellant deserved a prison sentence.
At the Romero hearing, a friend testified that he was aware of appellant's violent past, especially around alcohol, but pled for the court not to imprison appellant and to get him help. Another family friend testified that appellant's family supports him and he believes appellant could be helped with the right program. Appellant's mother testified that appellant was a good man who had no memory of what happened in this incident. She explained that appellant wants help and that his babies mean everything to him. Appellant's mother also explained that appellant was a different person after leaving the Navy and she was praying he could get into a program.
Appellant told the court that he had made many mistakes. Appellant said he was now forced to look at himself and deal with a problem that ruined his life as well as his children's lives. Appellant had no recollection of what happened, he cared deeply for the victim, planned to move in with her, and wanted to spend the rest of his life with her. Appellant talked to people from the Veterans Administration. Appellant admitted the things that he had done and sought mercy and grace from the court. Appellant said he needed the tools to carry out his life from day to day.
The trial court reviewed appellant's past criminal record, focusing on the prior misdemeanor convictions for battery and noting that appellant had a problem with alcohol. The court observed that appellant had three violations of his parole after his previous prison incarceration for spousal abuse. The court observed that appellant had prior chances for changing his behavior and reforming himself. The court stated that at this stage of appellant's life, the court had to be concerned for public safety and the safety of the females with whom appellant associates. The court found that based on appellant's background, it could not exercise its Romero discretion, noting that appellant's behavior was increasingly more serious.
ROMERO DISCRETION
Appellant contends the trial court abused its discretion in failing to strike his prior serious felony conviction pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. We disagree and will affirm the judgment.
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) The appellant bears the burden of establishing that the trial court's decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) "It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant's] prior convictions." (Ibid.) "[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 (2004) 33 Cal.4th 367, 377 (Carmony).)
Defense counsel made a written request pursuant to Romero and also argued at the sentencing hearing for the application of Romero. The trial court was well aware of its discretion to strike the prior serious felony conviction pursuant to Romero, but declined to do so, noting appellant's serious criminal history and his inability to reform himself despite opportunities to do so. Appellant had misdemeanor battery convictions, and felony convictions for assault with a deadly weapon and spousal abuse.
Appellant's assault of the victim in this case was egregious. When appellant threw the victim down, her head hit concrete. Appellant severely choked the victim into unconsciousness twice. Appellant kicked out the windshield to the victim's car, held her against her will, and threatened to kill her and feed her body to his pit bull. The assault was prolonged and vicious. These are not the actions of a defendant who has reformed himself. The court considered mitigating evidence, but ultimately found that appellant posed a threat to the community and to the women with whom he associates.
Appellant argues that the court should have placed more weight on his mental health problems, his alcoholism, and the positive letters and testimony appellant received from the community. In doing so, appellant is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. We decline his invitation to do so. "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (Myers, supra, 69 Cal.App.4th at p. 310, quoted with approval in Carmony, supra, 33 Cal.4th at p. 378.)
The record in this case shows that the court understood its discretionary authority and it weighed all of the competing facts to reach a reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one or more of the prior serious felony convictions. In view of these facts and circumstances, appellant has failed to show abuse of discretion. (See Carmony, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
DISPOSITION
The judgment is affirmed.