Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct. No. SWF015484 F. Paul Dickerson, Judge.
Stephen S. Buckley, 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, Jeffrey J. Koch and Barry Carlton, Supervising Deputy Attorneys General, and Elizabeth Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Following a jury trial, defendant Richard Cal Elliott was convicted of commercial burglary. (Pen. Code, § 459.) In a bifurcated proceeding, six prior prison term allegations (§ 667.5, subd. (b)), including one that was also alleged to be a strike (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), were found to be true. Defendant was sentenced to state prison for a total term of 10 years. He appeals, contending the trial court abused its discretion in denying his motion to continue and his Romero motion.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
I. PROCEDURAL BACKGROUND AND FACTS
In February 2006, Velia Cabanila worked as the office manager for Ballard Gas (Ballard), a propane company located in San Jacinto. In the late afternoon of February 25, the security company called her and reported that the office’s burglar alarm had been tripped. Cabanila and her husband drove to the business and found a torn screen on the door to the manager’s office. Cabanila called the alarm company and told them to call the police. Meanwhile, she parked where she had a good view of the facilities and waited.
While she was waiting, Cabanila heard the alarm sound inside the building. She called the police and told the dispatcher that there was someone in the building. She then saw someone come out of the building. She later identified that person at trial as defendant.
Cabanila saw defendant moving a computer tower and monitor out of the building. She saw him jump the fence that surrounded the building. When Cabanila later checked inside the office after the police arrived, she noted that the manager’s monitor and her own computer tower were missing from inside the office. Along with the computer equipment, also missing was a pair of binoculars. There was a cash register in Cabanila’s office, and she had placed two Sacagawea and five Susan B. Anthony dollar coins in it. After the police arrived, Cabanila checked the register. The dollar coins were missing.
While Cabanila was waiting for the police, Michael Skaug, the owner of a neighboring business, was leaving his business. As he drove away, he saw someone he described as being about six feet tall, thin, with light brown or “dirty blond” hair, wearing a blue long-sleeved shirt, hurriedly crossing the street. He was coming from the direction of Ballard. He appeared to be about 40 or 50 years old. Skaug saw him go over the wall at National Scent Company, another area business, which was closed for the weekend.
Sheriff’s Sergeant John Salisbury arrived and began checking the area. He contacted Skaug and asked if he had seen someone matching a certain description. Skaug said he had; it was the man he had just seen jumping the wall at National Scent Company. Sergeant Salisbury climbed the wall and searched for the suspect. After 20 minutes of cautious searching, Sergeant Salisbury found defendant. Defendant was seated in the cab of a tractor truck; beside him on the seat were coins stacked by denomination, including the two Sacagawea and five Susan B. Anthony coins. Sergeant Salisbury seized some cigarettes defendant had with him.
Skaug verified to Sergeant Salisbury that defendant was the man Skaug had seen running across the street.
Around the time Sergeant Salisbury was checking the area, Deputy Sheriff Daniel Moody arrived at Ballard. Deputy Moody inspected the scene and had Cabanila check for missing property. Deputy Moody received a call from Sergeant Salisbury, who said he was “out with somebody” at National Scent Company who matched the description of the suspect. Deputy Moody took the Cabanilas over to National Scent Company, where both said that the person looked like the person they had seen at Ballard.
Deputy Moody had noticed footprints at Ballard. He took one of defendant’s shoes and went back to the scene. The pattern on the sole of defendant’s shoe looked the same as the prints at the scene. The shoe appeared to be the same size as the prints. Deputy Moody set the shoe by a print and photographed them together. The footprints followed defendant’s path over the fence.
There was a backpack beside the shoe prints just outside the fence. The backpack contained clothes, a package of cigarettes, and other items. The pack of cigarettes in the backpack carried the brand name, “GT1,” which was the same brand as the pack of cigarettes that Sergeant Salisbury found on defendant. After defendant’s arrest, a third deputy took the backpack to defendant’s sister, who identified the backpack and clothing as belonging to defendant.
II. DENIAL OF MOTION TO CONTINUE
In pretrial motions, the prosecutor noted that as far as she knew, all discovery had been provided. She had e-mailed defense counsel and invited him to her office to inspect all the evidence she had.
The next week, during voir dire, the prosecutor provided defense counsel with photographs of the footprints found at the scene and the bottom of defendant’s shoes. Defense counsel requested a continuance on the ground that, had he received the photographs earlier, he would have hired an expert to examine them. In response, the prosecutor claimed that the footprint evidence was not new because the police reports noted the footprints found at the scene matched defendant’s shoes. The prosecutor, however, admitted that she had not printed the photographs until the morning of the day that she turned them over to defense counsel.
The trial court denied the motion for continuance without comment.
At trial, the investigating officer testified about the footprints found at the crime scene and the fact that they had the same diamond pattern as the soles of defendant’s shoes. The prosecution produced the shoes taken from defendant. The investigating officer testified that the patterns on the soles were consistent with the prints at the scene.
When discussing jury instructions, defendant requested Judicial Council of California Criminal Jury Instruction, CALCRIM No. 306 (Untimely Disclosure of Evidence) based on the prosecutor’s failure to provide the photographs in a timely manner. The trial court denied the request, saying: “[Defense counsel], you’re correct, there was a discovery violation here. You should have gotten those photographs sooner; however, it’s the Court’s opinion that it’s within the sound discretion of the Court as to the remedy. I mean, I could sanction [the prosecutor], I could give the instruction, or — you know, there are just all sorts of remedies. And I just feel, after listening to [the prosecutor], she got the photographs late too. She did send you an e-mail to come over and take a look at whatever she had.” The court reasoned that the violation had been technical in nature and not intentional.
In closing argument, the prosecutor listed the extensive circumstantial evidence linking defendant to the burglary. She invited the jury to examine the photographs of the prints and compare the patterns with defendant’s shoes. With no objection from defense counsel, she provided the jury with a magnifying glass to use in examining the photographs.
On appeal, defendant challenges the trial court’s decision denying his motion for a continuance based on the prosecution’s late production of the photographs. Defendant contends the trial court erred in refusing to grant his motion for continuance or his request that the jury be instructed on late discovery. We reject his challenge for the following reasons.
Section 1054 et seq., also known as the reciprocal discovery statute, requires the prosecution to “disclose to the defendant or his or her attorney” certain “materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” Such materials include: “(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [¶] . . . [¶] (e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial . . . .” (§ 1054.1, subds. (a), (e), (f).) In the absence of good cause, this evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)
Subdivision (b) of section 1054.5 provides, “Upon a showing that a party has not complied with Section 1054.1 . . . a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness, or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” Subdivision (c) of that statute provides, however, “The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.”
Here, as the People point out, the only substantive discovery mandated by the United States Constitution is the disclosure of material exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83. (People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133.) The prosecutor’s failure to fulfill this obligation is not at issue here because defendant does not claim that the prosecution withheld exculpatory evidence. Clearly, the photographs were incriminating. Thus, defendant is only asserting a statutory violation, and, as noted above, the sanctions available to the trial court for such discovery violations are found in section 1054.5. However, once trial is over, these sanctions do not apply.
“In order for defendant to prevail on appeal on the grounds of violation of the pretrial discovery right of a defendant, he must establish that the information not disclosed was exculpatory and that “it is reasonably probable, by state-law standards, that the omission affected the trial result.” (People v. Zambrano, supra, 41 Cal.4th at p. 1135, fn. 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
On the record before this court, defendant is unable to establish that (1) the evidence is exculpatory, and (2) there is a reasonable probability of different outcome. The photographs were inculpatory, not exculpatory. The investigating officer took the photographs to document what he saw, to which he later testified. The shoes were seized from defendant. All the jury had to do was see if they agreed with the officer’s finding that the shoe print looked like it came from defendant’s shoe. Nonetheless, as the People point out, the photographs of the shoe prints were just part of the larger body of evidence that linked defendant to the crime. Cabanila testified that she saw defendant leaving the scene. Michael Skaug, the owner of a neighboring business, testified that he saw someone matching defendant’s description come hurriedly from the general direction of Ballard. Defendant was found with coins that were missing from the Ballard cash register. Defendant had a partial pack of GT1 cigarettes on his person, while a full pack was found in the backpack located just outside Ballard. Defendant’s sister identified the backpack as belonging to defendant.
After considering all the evidence before this court, we are unable to conclude there is a reasonable chance that the outcome of the trial would have been different had the photographs of the shoe prints been disclosed to defense counsel prior to trial in a timely manner, had the trial court granted defendant’s continuance, or had the trial court instructed the jury pursuant to CALCRIM No. 306. Thus, defendant’s claim of material, prejudicial nondisclosure of evidence fails.
III DENIAL OF ROMERO MOTION
On July 21, 2006, defense counsel made an oral motion to strike defendant’s 13-year-old first degree burglary conviction pursuant to Romero, supra, 13 Cal.4th 497. The court denied the motion based on defendant’s past criminal record, current offense, 17-year history of incarceration, and two unrelated misdemeanor DUI (driving under the influence) cases to which he had pled. In reaching this decision, the trial court stated: “[T]he defendant does not fall outside the spirit of the three-strikes law. . . . The Court notes [defendant’s] felony criminal history goes back 17 years, or approximately 17 years. In 1989 he went to state prison for commercial burglary, one year later he went back again for theft, two years later he was convicted of battery and theft, and went back to state prison. In 1993 he was convicted of residential burglary, a strike offense, and went back yet again to state prison, this time for four years. He was released and violated parole twice, going back to state prison in ’97 and ’98. That same year, in 1998, he was convicted of possession and went back to state prison for two years. He was released, and again violated parole. In 2000 he was sent to state prison for four years. The hard reality is that [defendant] has spent the vast majority of the last 15 years in state prison, and when not in state prison refuses to conform to the laws of the State of California. So it is clear to the Court that he does not fall outside the spirit of the three-strikes law, and the Court would have to find that to dismiss the strike for sentencing purposes.”
Defense counsel then argued that the trial court should use its discretion to craft a sentence proportionately consistent with the nonviolent nature of the current offense. More specifically, defense counsel stated: “I’d ask the Court to consider imposing the low term or, in the alternative, the midterm. What the correct number of years is, I don’t know. Clearly prison isn’t working, ultimately, to get his attention, as the D.A. said, and I don’t know that — that making the penalty so disproportionate to the crime, just because we can, just because the exposure there is necessarily the right thing to do.” In response, the prosecution argued for the upper term, doubled “as a result of the strike under 667[,] [subdivisions] (c) and (e)(1).” She further asked the court to “impose one year consecutive to the doubled six-year term, per each 667.5[,] [subdivision] (b) prison prior, and then each of those one-year priors be imposed consecutive to one another, for a total prison commitment of 12 years.”
After listening to both sides, the trial court noted that the probation report indicated defendant was remorseful, had a significant alcohol and drug abuse issue, and was doing well on probation until his mother died. Agreeing that defendant’s last few felony convictions had not been “all that serious,” the court declined to impose the low term, stating, “under no circumstances would I be able to find by a preponderance of the evidence that the mitigating circumstances outweighed the aggravating circumstances. So, . . . there’s just no way I can give the low term here.” The defendant responded in the affirmative. The court continued, “All right. So I am going to impose the midterm, but because [defendant], you know, I’m sure you understand that too, you just don’t fall outside the spirit of the three-strikes law. I can’t find that. Just — I wouldn’t be doing my job. So I’m sure you understand that too. [¶] . . . [¶] All right. So going to double the midterm to four years . . . and under the law I must give you one year, I’m sure you know, for each prison prior. So there are — there are six prison priors. So I’m — you’re going to be — well, I’m going to impose one year for each prison prior, for each admitted prison prior.”
On appeal, defendant contends the trial court abused its discretion in making its sentencing decision after denying his Romero motion. Alternatively, he claims that the trial court was unaware of its sentencing discretion with regard to the section 667.5, subdivision (b), prison term priors.
A trial court has the discretion to strike a prior strike conviction if the defendant may be deemed outside the spirit of the “Three Strikes” sentencing scheme, either in whole or in part. (People v. Williams (1998) 17 Cal.4th 148, 161.) The court must consider the nature and circumstances of the current offense and the prior strike conviction, as well as the particulars of the defendant’s background, character and prospects. (Ibid.) Only extraordinary circumstances will justify striking a strike prior. (People v. Carmony (2004) 33 Cal.4th 367, 378.) The Three Strikes law presumes that a repeat offender with a serious or violent prior offense should be subject to greater punishment. Therefore, when the record shows that the trial court considered the relevant facts and reached an impartial decision in conformity with the spirit of the law, a reviewing court will affirm the trial court’s denial of the motion unless no reasonable person could disagree that the defendant falls outside the spirit of the sentencing scheme. (Ibid.)
Here, we see no factors that cause defendant to fall outside the Three Strikes scheme. Defendant’s criminal record dates back to 1979 when he suffered a misdemeanor burglary conviction. In 1989, 1990, 1993, and most recently, he suffered felony burglary convictions. In 1992, he suffered convictions for battery, forgery and petty theft with a prior. In 1998 and 2000 he was convicted of felony drug possession. He received two DUI’s, driving on a suspended license, and a failure to appear in 2006. As the trial court noted, defendant had spent most of the previous 15 years in prison. Thus, the court stated: “It is clear to the Court that he does not fall outside the spirit of the three-strikes law, and the Court would have to find that to dismiss the strike for sentencing purposes.”
While resolution of defendant’s Romero issue is straightforward, such is not the case regarding defendant’s claim that the trial court was unaware of its sentencing discretion with respect to his section 667.5, subdivision (b), prison term priors. A defendant who seeks to have a discretionary sentencing decision set aside has the burden of showing that the trial court abused its discretion. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its exercise of discretion will not be set aside. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Defendant contends that (1) because his lengthy history of criminal behavior involved nonviolent crimes related to his addition to drugs and alcohol, (2) because he was remorseful, and (3) because his recent actions were causally connected to the death of his mother and his slip back into drug and alcohol use, striking one or more of his prison term priors in an effort to fashion a more appropriate sentence is warranted. More specifically, defendant maintains that the court’s statement that “under the law I must give you one year . . . for each prison prior” demonstrates its ignorance of the fact that section 1385 grants a trial judge discretion to dismiss prior strikes and enhancements alleged under section 667.5. (See, e.g., People v. Meloney (2003) 30 Cal.4th 1145, 1155.)
Turning to the record, an argument can be made for finding that the trial court understood the law and its discretion, and exercised it by not striking any of defendant’s prison term priors. On two different occasions, the trial court noted that defendant did not fall outside the Three Strikes scheme — first, in ruling on the Romero motion, and second, after imposing the midterm, but just prior to imposing the consecutive one-year terms for defendant’s section 667.5, subdivision (b) priors. Nonetheless, during oral argument, defense counsel vehemently argued, and we now agree, that there is uncertainty in the trial court’s statement regarding its sentence with respect to defendant’s section 667.5, subdivision (b) priors.
Due to statutory mandate, a trial court is obligated either to impose sentence on, or to enter in the minutes the reasons for striking, a section 667.5, subdivision (b) prison term prior. (People v. Bradley (1998) 64 Cal.App.4th 386, 395-396; § 1385, subd. (a).) Here, trial counsel failed to specifically ask the trial court to strike one or more of defendant’s prison term priors. Thus, the record lacks clarity on whether the trial court was aware of its discretion. Defense counsel requests that we remand the matter and instruct the trial court to acknowledge, on the record, its discretion to strike any, and/or all, of defendant’s prison term priors, and its decision not to do so. We decline the invitation to do so.
Moreover, we decline to remand the matter for resentencing. A reviewing court remands for resentencing only if it finds a reasonable probability the trial court would have chosen a lesser sentence had it known that some of its reasons for imposing the higher sentence were improper. (People v. Price (1991) 1 Cal.4th 324, 492; see People v. Watson (1956) 46 Cal.2d 818, 836.) Our Supreme Court has stated that even where the trial court misunderstood the scope of its discretion, remand for resentencing “is not required where the trial court’s comments indicate that even if it had authority to strike a prior felony conviction allegation, it would decline to do so. [Citation.]” (People v. Fuhrman (1997) 16 Cal.4th 930, 944, citing Romero, supra, 13 Cal.4th at p. 530, fn. 13.) Such is the case here. The trial court’s comments indicate that it would have declined to strike any of defendant’s priors. Given the trial court’s specific finding (on two separate occasions during the sentencing hearing) that defendant does not fall outside the Three Strikes scheme, given defendant’s record, and given the fact that defendant’s sentence is within the statutory range, we find it unlikely the trial court would have sentenced defendant any differently than it did. As a result, remand is unnecessary.
IV. DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., KING, J.