Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 10F586.
RAYE, P.J.
Defendant Eddie Samuel Dodge entered into a negotiated plea of guilty to inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)) and admitted a prior strike conviction and prison term for robbery (§§ 1170.12, 667.5, subd. (b)). In exchange for his plea, a charge for kidnapping and allegations that defendant had served two additional prior prison terms were dismissed. Sentenced to seven years in prison, defendant appeals. He contends the trial court abused its discretion in denying his request to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We shall affirm.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
On the night of January 23, 2010, officers were dispatched to a parking lot to respond to a report of domestic violence. Defendant and his wife had been drinking at a bar and became involved in a physical altercation. Two witnesses had seen defendant forcefully shove his wife into the rear of an SUV, and two other witnesses saw defendant grab her head and slam it into the rear window of the vehicle. Her head struck the window with such force that it shattered the glass. Defendant’s wife screamed and defendant shoved her into the passenger side of the vehicle. Witnesses then saw defendant making punching movements toward his wife. She screamed as if she was being struck and in pain. Defendant then drove off.
Defendant was located three hours later and arrested. He denied that the altercation with his wife had been physical. Officers then spoke to defendant’s wife at her residence. They observed her injuries and asked her what happened. She explained that she did not want to get defendant into trouble and said that “this almost never happens.” Ultimately, she admitted that defendant got angry and claimed he “accidentally” struck her with his “elbow or forearm” several times in rapid succession. She further explained that the family would “go under” if he went back to jail.
Broken glass and blood were found on the passenger side of defendant’s SUV, and long hairs were found around the edges of the broken window. Defendant, however, continued to deny that the altercation with his wife had become physical.
Defendant has a lengthy juvenile record. As an adult, he had accumulated four prior felony convictions, including convictions for threatening witnesses and robbery with use of a firearm. He spent the majority of the previous decade in prison and was on parole at the time of the instant offense. He did, however, have a job and support in the community.
DISCUSSION
Defendant contends the trial court abused its discretion in denying his request to dismiss his prior serious felony conviction pursuant to Romero and section 1385. Specifically, he contends that the trial court erred during the hearing when it refused to permit the victim to testify regarding the nature of her injuries. We find no abuse of discretion.
Section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, “and in furtherance of justice, ” to order an action dismissed. (§ 1385, subd. (a).) The trial court may utilize section 1385 to strike or vacate a prior strike for purposes of sentencing under the “three strikes” law, “subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) In making a decision on whether to strike a prior conviction allegation, the court considers the nature and circumstances of current offenses, the nature and circumstances of the prior strike convictions, and the defendant’s background, character, and prospects for the future to determine whether the defendant should be considered outside the spirit of the three strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Prior to sentencing, defendant requested the trial court exercise its discretion to dismiss his prior strike. He presented letters and live testimony regarding his background, character, and prospects. During the hearing, defendant sought to elicit testimony from his wife, the victim, regarding the severity of the injuries defendant inflicted upon her in this case. The prosecutor objected to the evidence as irrelevant and the trial court excluded the testimony. Defendant contends this was reversible error.
A trial court’s decision to admit or not admit evidence is reviewed only for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197; People v. Alvarez (1996) 14 Cal.4th 155, 203.) Here, the proffered testimony was insufficient to require admission at the Romero hearing.
The probation report’s description of defendant’s offense consisted of a summary of the police report, which was the stipulated factual basis for defendant’s plea. The report stated that when officers contacted the victim at her house shortly after the assault, they observed injuries to her face and head consisting of a swollen lower lip and partially swollen upper lip, coagulated blood covering the interior of her lips that indicated her mouth had bled, tangled and matted hair, and a raised bump on her head two inches in diameter and one-half inch high. The victim winced in pain when the officer applied slight pressure to the bump. She refused medical attention.
Although at the hearing defendant suggested he did not favor the description of victim’s injuries as recited in the probation report, he did not object to the report. Moreover, he did not offer any proof that the officers’ description as contained in the probation report was contrary to fact. Defendant merely indicated that the victim would testify that she had reviewed the photographs of her injuries and would “be able to testify that her injuries were consistent with the actual evidence.”
Indeed, even on appeal, defendant does not contend the description of the victim’s injuries contained in the police report was incorrect. Instead, he simply contends that “the injuries observed by the officers when they were fresh gave the appearance of being much more serious than they were” and that “[p]resumably, [the victim] would have testified that, once the gore was cleaned off, and the swelling subsided, the damage was of no lasting consequence.” This, of course, is common sense, based on the description of the injuries and the lack of any indication that the injuries were permanent or disfiguring. The trial court acted well within its discretion to exclude the proffered evidence.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J., MURRAY, J.