Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 058642
Lambden, J.
Defendant pleaded no contest to felony petty theft (Pen. Code, § 666) and admitted one strike prior (§ 1170.12, subd. (c)(1)). Subsequently, the trial court denied his motion pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 to strike a prior. Defendant appeals, arguing that the lower court abused its discretion in refusing to strike his prior conviction. We affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
On May 18, 2005, an information was filed charging defendant in count 1 with felony petty theft with a prior (§ 666). It charged him in count 2 with providing false identification to a police officer (§ 148.9), a misdemeanor. The information included allegations that defendant had suffered five prior serious felony convictions for purposes of the Three Strikes law (§ 667.5, subd. (b)).
Officer Russ Hughes testified at defendant’s preliminary hearing on May 6, 2005. Hughes testified that on April 22, 2005, about 2:40 p.m., he arrived at the Mervyn’s parking lot after the store security reported a potential theft suspect. Hughes observed defendant and the security guard involved in a struggle on the sidewalk.
The security guard told Hughes that he had seen defendant remove four hats and a pair of jeans valued at about $85 from the store and leave the store without paying for any of these items. The security guard followed defendant outside the store, stopped defendant, and told defendant that he observed the theft. Defendant removed a pair of pants from his own pants and handed the clothing to the security guard. Defendant put his hands behind his back but, when the security guard attempted to place a pair of handcuffs on him, defendant pulled away and started to struggle with him. At that point, Hughes arrived and observed the struggle.
Hughes approached defendant and the security guard and defendant identified himself to the officer as Paul Edwards. Another officer arrived, and Hughes heard defendant tell him that he did not have any identification. The other officer removed a wallet from defendant’s pocket; the identification card indicated that defendant’s name was Paul Edward Dulaney. Hughes searched defendant and found three knit caps in defendant’s pockets. Defendant was wearing a baseball cap that also had been removed from the store’s shelves. The security guard identified the pants and four hats as property of Mervyn’s.
At the close of the preliminary hearing, the court set bail and defendant’s arraignment date.
On June 26, 2006, defendant pleaded no contest to felony petty theft and admitted one strike prior allegation in return for the dismissal of the second count of providing false identification to a police officer. The plea included a potential maximum sentence of six years in state prison. The court told defendant that the matter was being continued so that the probation department could prepare a probation report.
Defendant moved under Romero to strike a prior strike allegation. The prosecutor filed opposition to that motion.
At the sentencing hearing on September 15, 2006, the trial court stated that it had read and considered the probation report, defendant’s Romero motion, and defendant’s supplement to the probation report. The probation report stated that defendant was 50 years old and was involved in this offense while under the supervision of state parole. It further noted that defendant had a criminal history dating back to 1983, “and is regarded as a career criminal involved in mainly the sale and use of controlled substances. The defendant admittedly has used crack cocaine for 15 years, stating that the last time was on April 21, 2005. [Defendant] has been given numerous chances at treatment, the last being a referral to the Delancey Street Program, which the defendant failed to complete.” Defendant told the probation officer that he could go back to Project Ninety Working Man’s Program (Project 90), and the probation officer received documentation that defendant was on Project 90’s waiting list. However, the probation officer noted that defendant had received treatment from this program in the past and “considering his history coupled with 15 years of using and selling crack cocaine, it would seem that this level of treatment would not suffice for the defendant’s issues.”
The probation report also stated that defendant “has a history of assaultive behavior including felony corporal injury on a cohabitant for which he was given a chance at treatment and subsequently failed. This incident occurred after the defendant and his girlfriend were drinking heavily and smoking crack cocaine. The defendant has several subsequent arrests and convictions for assaultive behavior involving other victims as well.” The report indicated that “defendant’s record exhibits 19 aliases, six different dates of birth, four different social security numbers, two different driver’s license numbers and two different CDC numbers.”
The probation report found the following circumstances in aggravation: “[D]efendant was convicted of other crimes for which consecutive sentences could have been imposed, but for which concurrent sentences were imposed. The defendant has engaged in violent conduct in the past as evidenced by his prior arrest for assaultive behavior dating back to 1983, which does indicate a danger to society, and his convictions as an adult are numerous. The defendant has served prior prison terms and was on parole at the time this offense was committed.” The report found no circumstances in mitigation.
Defendant’s supplement to the probation report stressed that defendant had completed high school and joined the Navy. After discharge from the Navy, he remained in California and moved to East Palo Alto in 1993. Defendant stated that when released on this case in July 2005, he checked himself into the Veterans Administration Hospital and began rehabilitation from his longstanding drug problem. He remained in the hospital until discharged in November 2005. He reported that for the past three months, he was working as a dump-truck driver.
Defendant asserted that, at the time he stole the items from Mervyn’s, his girlfriend and he were homeless and drinking heavily. He intended to sell the hats and pants for drug money. He has now applied to Project 90; he was accepted and placed on the waiting list.
At the sentencing hearing, the trial court issued its tentative ruling denying defendant’s Romero motion. The court explained that defendant was on state parole supervision at the time of the current offense. Additionally, the court found that defendant struggled with the store security and resisted arrest. The court further noted that defendant had a criminal history dating back to 1983 that occupied three or four pages in the probation report. The court explained that defendant had been provided numerous chances at treatment, most recently to the Delancey Street Program, which he never completed. The court further noted that defendant had a history of assaultive behavior and had engaged in nonstop criminal behavior when out of custody. The court recognized defendant’s desire to complete Project 90, but the court did not believe he had a chance of success given that he had flunked the Delancey Street Program.
After hearing argument, the trial court denied defendant’s Romero motion. The court sentenced defendant to the low term of 16 months and doubled it pursuant to section 1170.12, subdivision (c)(1), to a total of 32 months.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court abused its discretion when it denied his motion to dismiss a strike prior for purposes of sentencing. (Romero, supra, 13 Cal.4th at p. 531.) He maintains the court failed to consider the particulars of his background, character, and prospects. Given the remoteness of his prior felony and the minor, non-violent nature and circumstances of the current offense, he claims that he is the type of person who falls outside of the spirit of the Three Strikes sentencing law.
“In Romero, [the Supreme Court] held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385[, subdivision] (a).” (People v. Williams (1998) 17 Cal.4th 148, 158.) In ruling whether to do so, the court “must consider whether, in light of the nature and circumstances of [the defendant’s] 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.” (Id. at p. 161; People v. Barrera (1999) 70 Cal.App.4th 541, 553-554.) The trial court’s ultimate conclusion is evaluated “under the deferential abuse of discretion standard.” (People v. Myers (1999) 69 Cal.App.4th 305, 309.)
The record in the present case establishes that the trial court did not abuse its discretion in refusing to strike defendant’s prior strike. As the trial court explained, defendant was on parole when he committed the current offense and his criminal behavior since 1983 was essentially “nonstop” when not incarcerated. Although the current crime involved the theft of inexpensive items, defendant struggled with the security guard when the security guard attempted to place handcuffs on him. Indeed, defendant had a history of assaultive behavior. Finally, the court concluded that defendant was unlikely to benefit from attending Project 90, because of his failure to finish the Delancey Street Program.
Thus, during the hearing, the court made it clear that it had analyzed defendant’s criminal history and considered the aggravating and mitigating circumstances. As the probation report noted, no mitigating factors were present.
Defendant contends that the trial court relied too heavily on defendant’s past criminal history and failed to make an “intensely fact-bound inquiry” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981) when examining defendant’s background and the circumstances of the current offense. He asserts that the current offense was minor and that he merely pulled away when the security guard attempted to put handcuffs on him. He argues that he never struggled. Further, he maintains that he was unemployed and homeless at the time of his arrest, but he was working the few months prior to his sentencing hearing. Defendant concedes that he has a history of convictions, but he claims they are all related to his substance abuse problems and are relatively minor. He claims that his offenses do not demonstrate increasingly violent behavior. Further, defendant asserts that the prior strike was remote, 17 years old, and the offense appeared to be relatively minor. Finally, defendant argues that he failed the Delancey Street Program 12 years earlier, but since that time he has demonstrated a willingness and desire to address his substance abuse problems and to plan for the future. This willingness, according to defendant, was established when he sought treatment in July 2005 when released on his own recognizance in the current offense. He was released from treatment in November 2005, and he asserts that he has remained incident free until the sentencing hearing.
We conclude that the lower court did make a fact-bound inquiry and it took into account all relevant factors, including defendant’s criminal past and public safety. Although defendant’s current offense was relatively minor, as the lower court pointed out, he did struggle with the security guard. He attempts to dismiss this fact by arguing that he merely pulled away when the security guard was attempting to handcuff him, but Officer Hughes stated that he observed defendant and the security involved in a “struggle” on the sidewalk. Further, defendant had been provided with the opportunity to seek treatment for his substance abuse in the past but he had failed to follow through. The probation report stated that defendant had received treatment from Project 90 in the past and “considering his history coupled with 15 years of using and selling crack cocaine, it would seem that this level of treatment would not suffice for the defendant’s issues.” The record also establishes that defendant had engaged in continuous criminal conduct when not incarcerated. The offenses may have been relatively minor, but his criminal behavior remained entrenched. Given defendant’s criminal record, failures on probation and parole, and history of substance abuse, we conclude the lower court did not abuse its discretion in refusing to dismiss his prior strike and in concluding that he did not fall outside the scheme and purpose of the Three Strikes law. (See, e.g., People v. Williams, supra, 17 Cal.4th at p. 161.)
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.