Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Nos. SWF12538 & RIF129130, Judith C. Clark, Judge.
Nancy L. Tetreault, 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, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
A jury convicted defendant Jose Hernandez Diaz of two counts of robbery (Pen. Code, § 211) relating to separate incidents against different victims, with separate weapon use enhancements. He appeals from the convictions on the ground the trial court improperly joined the two counts, and challenges the court’s sentencing decision not to exercise its discretion to strike one of his prior serious felony convictions (Strikes).
1. Background
A. Robbery of Michael Struss
Michael Struss is a construction worker who went to a liquor store at approximately 3:00 p.m. on June 23, 2005, to cash his $300 paycheck. After cashing the check and purchasing some items, Struss put the money in his pocket, exited the store, and got into his truck. Once he was in his truck, and while the door was open, defendant approached with a knife, held it a few inches from Struss’s side, and demanded Struss’s money. Struss gave defendant a $100 bill because he did not want to get stabbed. Defendant demanded more, but Struss told him that was all he had, so defendant left in an older model black car.
Struss followed defendant for approximately seven miles, until defendant pulled into a gas station. Struss followed defendant into the gas station, honking his horn, and was confronted again by defendant, with the knife, and then by throwing a crate. Struss found Sheriff’s Deputy Kimberly Brown putting air in her tires behind the station, and reported the robbery. Deputy Brown caught up with defendant a short distance away, saw a $100 bill and a small buck knife protruding from defendant’s right pants pocket, and arrested him.
Defendant was charged with one count of robbery (Pen. Code, § 211) in case No. SWF 012538, along with allegations pertaining to his prior serious felony convictions and prison prior, and was released on bail.
B. Robbery of Patrick Black
Patrick Black lived at an apartment complex with two roommates, Brian and Adrian. Defendant also lived in the same apartment complex. A week or two prior to March 15, 2006, the date of the robbery, Black had lent $50 to defendant, whom he knew as “Boxer.” Black had seen Boxer on approximately three or four occasions in the apartment complex prior to March 15, 2006. Earlier in the evening on that date, Black had stopped by defendant’s apartment and asked for the money, and defendant said he would be over later that evening to repay it.
At approximately 11:00 p.m., Black was in his apartment with his roommates and a few friends, when defendant came by Black’s apartment. He approached the screen door, knocked, and entered without waiting to be admitted. Defendant proceeded directly towards Black’s bedroom and Black followed. Once in the bedroom, defendant closed the door, and demanded Black’s money. Black refused defendant’s repeated demands, although there was money on a table in the bedroom. Defendant approached Black, who was sitting on the edge of his bed, pulled out a gun and pointed it at Black. He continued to demand money from Black, each time more aggressively. Eventually, defendant saw the money on the table and grabbed it.
Black tried to get the money back but defendant pushed him back onto the bed, put the gun to his head. Defendant threatened to shoot Black, exited the room and left the apartment. Black waited in his room, smoking a cigarette before going out and telling his friends what had happened. However, Black waited two days to report the incident to police because defendant had threatened to kill Black if he told anyone.
Officer Shourds responded to the report and interviewed Black about the incident. Black informed the officer which apartment belonged to defendant and the officer contacted defendant’s wife there. The officer waited for defendant to return home and arrested him after confirming he went by the nickname “Boxer.” At the time of his arrest, defendant had $190 in his right front pocket. Defendant’s wife informed the officer that she was the only person earning an income in the household and that they lived from paycheck to paycheck. She told Officer Shourds she was surprised to learn her husband had nearly $200 on his person and had no idea where he might have gotten the money.
However, at trial defendant’s wife testified she was working at Wal-Mart on March 15, 2006, from 4:00 p.m. till 12:00 midnight. At approximately 11:00 p.m. that night, defendant had come to Wal-Mart on his bicycle and the couple left together at midnight. Defendant’s wife identified defendant arriving at the store at 10:55 on a security videotape from Wal-Mart, and a tape of the two of them leaving at midnight.
C. Procedural Background
On August 29, 2006, the People made a motion to consolidate the two cases. No written opposition was filed by defendant, although the hearing was continued several times. Finally, the motion was heard during in limine matters and was granted over defendant’s oral objection.
Following a jury trial, the defendant was convicted of both robberies. With respect to count 1, the robbery of Michael Struss, the jury also found defendant had personally used a knife. (Pen. Code, § 12022, subd. (b)(1).) With respect to count 2, the robbery of Patrick Black, the jury found defendant had personally used a firearm. (Pen. Code, § 12022.53, subd. (b).) The jury also found the robbery of Black was committed while defendant was on bail for the robbery of Struss. Defendant waived his right to a jury trial on the allegations relating to his prior serious felony convictions and prison priors. The court found all prior conviction allegations true beyond a reasonable doubt.
Defendant then made a motion inviting the court to exercise its discretion to strike the prior serious felony convictions, alleged under the Three Strikes Law. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The court denied the motion. The court selected count 2 to be the principal term, imposing the low term of two years for that count, doubled because of the Strike. The court imposed a consecutive term of 10 years for the gun use allegation, two years for the on-bail enhancement, and five years for the serious felony prior conviction. For count 1, the court selected the middle term of three years, doubled to six years because of the Strike, with one year added for the knife use allegation, and ordered that the sentence for count 1 would be served concurrently with count 2. The total term was 21 years in state prison. Defendant appeals.
2. Discussion
A. The Joinder of Offenses Was Proper
Defendant argues the prejudice from joinder of the two offenses was so great as to violate his right to a fair trial. We disagree.
Penal Code section 954, governing the joinder of counts in a single trial, provides that an accusatory pleading may charge two or more different offenses of the same class of crimes or offenses, under separate counts. The same statute goes on to provide that the court may, in its discretion, order that the different offenses be tried separately. “Offenses of the same class” are those offenses possessing common characteristics or attributes. (People v. Lucky (1988) 45 Cal.3d 259, 276.) We review the trial court’s ruling for abuse of discretion, but we must consider whether a gross unfairness occurred that denied the defendant a fair trial or due process. (People v. Smith (2007) 40 Cal.4th 483, 510.) Appellant acknowledges that the two robberies, were of the same class, and thus met the statutory requirements for consolidation under section 954.
Where the statutory requirements for joinder are met, the defendant must make a clear showing of prejudice to demonstrate that the trial court abused its discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1128-1129.) Improper consolidation violates due process only if it results in a trial that is fundamentally unfair. (Park v. California (9th Cir. 2000) 202 F.3d 1146, 1149.) Error involving mis joinder affects substantial rights and requires reversal if it results in actual prejudice because it had substantial and injurious effect or influence in determining the jury’s verdict. (United States v. Lane (1986) 474 U.S. 438, 449 [106 S.Ct. 725, 88 L.Ed.2d 814].)
The burden is on the defendant to demonstrate a reasonable probability that the joinder affected the jury’s verdicts. (People v. Grant (2003) 113 Cal.App.4th 579, 588.) The factors to be considered include: (1) cross-admissibility of the evidence, (2) whether some charges are likely to unusually inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case, and (4) whether one of the charges is a capital offense or the joinder of charges converts the matter into a capital case. (People v. Mendoza (2000) 24 Cal.4th 130, 161.)
Here, defendant did not establish that joinder affected the verdicts, and made no argument to that effect in the trial court. On appeal, he focuses on the facts that he denied committing the second robbery and that the victim of the second robbery smoked a cigarette immediately after the crime and waited two days to report it to the authorities to show that the second robbery was significantly weaker than the first. We disagree. There was direct evidence as well as circumstantial evidence presented in support of both charges. Multiple eyewitnesses testified that defendant came to Black’s apartment and entered without waiting for invitation, proceeding directly to the bedroom. Black informed his friends of what had happened immediately afterwards. Defendant was found in possession of approximately $190 two days later, at the time of his arrest, and his wife—at that time—expressed surprise that he would have such a sum. Defendant had time to commit the robbery and then ride his bicycle to go meet his wife, given the relatively short distance involved. The second robbery was not significantly weaker.
The apartment complex was approximately 12 blocks away from the Wal-Mart store.
Defendant’s objection did not include any showing that a substantial danger of prejudice would result from consolidation, and he has not established that joinder had a substantial and injurious effect or influence in determining the jury’s verdict. We conclude that no gross unfairness occurred that denied defendant a fair trial or due process. There was no abuse of discretion.
B. The Court Properly Exercised Its Discretion In Denying Defendant’s Romero Motion
Defendant contends the court erred in failing to exercise its authority under Penal Code section 1385, subdivision (a), to strike his prior conviction for a serious or violent felony. While the trial court found some unusual features in defendant’s background, it concluded he was not outside the spirit of the Three Strikes law. We agree with that conclusion.
In Romero, the Supreme Court concluded that Penal Code section 1385, subdivision (a), permits a trial court to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising its discretion to strike a prior felony conviction pursuant to section 1385, subdivision (a), 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
A trial court’s decision to not dismiss or strike a prior serious and/or violent felony conviction allegation under Penal Code section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. (Ibid.) In the absence of such a showing, the trial court is presumed to have acted correctly. (Id. at pp. 376-377.) The appellate court may not substitute its judgment for that of the trial court when determining whether the court’s decision to strike the prior was proper. (Id. at p. 377.) 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. Philpot (2004) 122 Cal.App.4th 893, 904-905.)
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. (See People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams, supra, 17 Cal.4th at p. 161.) But it is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. (People v. Philpot, supra, 122 Cal.App.4th at p. 905.)
Thus, where the record shows the court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we must affirm the trial court’s ruling. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) As in Myers, the record in this case shows that trial counsel filed a motion requesting dismissal of the strike allegation based on defendant’s personal history and the nature of the prior offenses, pointing out the number of years that had elapsed between the defendant’s last prior offense and the current offenses, as well as defendant’s community service and family support. The record also shows the trial court carefully considered each of those factors before ruling on the request. After full consideration, the court concluded by saying, “I cannot say that you fall outside the Three Strikes Scheme.” Neither can we.
Striking a prior serious felony conviction is an extraordinary exercise of discretion, much like setting aside a judgment of conviction after a trial (People v. McGlothin (1998) 67 Cal.App.4th 468, 474), and is reserved for extraordinary circumstances. (People v. Strong (2001) 87 Cal.App.4th 328, 332.) The trial court’s decision not to strike defendant’s prior convictions was neither irrational, arbitrary, nor an abuse of discretion.
3. Disposition
The judgment and sentence are affirmed.
We concur: Richli Acting P. J., Miller J.