Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC157316
McGuiness, P.J.
Roger Pierre Estournes (appellant) appeals from a judgment entered after he pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and commercial burglary (Pen. Code, § 459). He contends the trial court erred in refusing to strike a prior strike on its own motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We reject the contention and affirm the judgment.
Factual and Procedural Background
A first amended complaint filed February 27, 2008, charged appellant with: (1) identity theft (Pen. Code, § 530.5, count 1); (2) receiving stolen property (Pen. Code, § 496, subd. (a), count 2); (3) possession of a controlled substance (heroin) (Health & Saf. Code, § 11350, subd. (a), count 3); (4) possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a), count 4); (5) forgery of a driver’s license (Pen. Code, § 470a, count 5); (6) unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140, count 6); (7) possession of an illegal smoking device (Health & Saf. Code, § 11364, count 7); (8) possession of burglary tools (Pen. Code, § 466, count 8); and (9) commercial burglary (Pen. Code, § 459, count 9). The complaint also alleged appellant was ineligible for probation (Pen. Code, § 1203, subd. (e)(4)) and, as to counts 1 through 5, that appellant had nine prior felony convictions and an additional serious or violent felony conviction in 1988 (Pen. Code, § 667, subds. (b)-(i)).
The charges were based on an incident in which police officers found appellant and his co-defendant, Jennifer Rose Jeffries, sleeping inside a vehicle. The officers saw heroin and methamphetamine in plain view and ordered appellant and Jeffries to exit the vehicle. There were .2 grams of heroin and 1.9 grams of methamphetamine. The officers also found inside the vehicle .9 grams of heroin, hypodermic needles, a prescription pill bottle, copper brillo, alcohol pads, rubber tourniquets, cotton filtering material, an electronic scale, a metal window punch tool, and a wallet containing a driver’s license, student ID and a checkbook belonging to the victim. Another wallet contained an identification card with appellant’s picture glued on top of another picture. There was also a bag containing numerous keys with labels that listed addresses or apartment numbers that appeared to be from residences in San Francisco. Another driver’s license belonging to another individual was inside appellant’s wallet. An officer searched appellant and found a small glass container with methamphetamine residue.
These facts are taken from the probation report.
An officer searched Jeffries and found heroin. Inside Jeffries’s purse were three credit cards belonging to the victim, a receipt from Macy’s in the amount of $345.83, and a Motorola Bluetooth hands-free device. Jeffries stated she saw appellant break a car window and remove a purse. After purchasing items from Macy’s, Safeway, and The Container Store, appellant and Jeffries drove to appellant’s friend’s house to buy methamphetamine, but the friend was not home. Appellant and Jeffries parked their vehicle and consumed drugs together.
The victim stated she contacted the San Rafael Police Department to report that her car had been burglarized. She said her front passenger window was broken and her purse was missing. Her purse contained her wallet, driver’s license, five credit cards, $300 in cash, make-up, prescription drugs, and a Motorola Bluetooth hands-free device. The suspects had used three of the victim’s credit cards and had spent $244.77 at Safeway, $86.18 at The Container Store, and $113.14 and $345.83 at Macy’s.
Appellant told a probation officer that he relapsed after completing a drug treatment program for the third time. He had two stable jobs, an apartment and a new truck, but began using heroin and lost his apartment four months before his arrest. He admitted he began stealing to support his drug habit and that he stole a wallet from a car and used credit cards found inside the wallet to purchase various items at Macy’s and The Container Store to trade for drugs. He purchased hotel gift cards at Safeway for his shelter.
Appellant’s prior serious or violent felony conviction was for a robbery he committed in October 1987. On the day of the robbery, appellant went to a commercial establishment with a partially filled out application for employment. He handed his application to an employee and told her he was applying for a job. He left after submitting the application but returned a few minutes later, stating he wanted to add some information to his application. Appellant followed as the employee went to an office to retrieve the application. When the employee turned around to give the application back to appellant, appellant pointed a loaded shotgun to her face and said, “Go to the safe and give me all the money.” As they walked to the safe, appellant repeatedly pressed the shotgun against the employee’s head, ear and directly in her face, yelling obscenities at her to open the safe. When another employee came to the doorway, appellant turned the shotgun on that employee and said, “Come in here.” Appellant forced that employee to the floor and began to handcuff him to a desk while wielding the shotgun and shouting obscenities. A third employee who entered was “met with the same obscenities and the like.” At some point, the employees saw an opportunity to subdue appellant. They tackled him, wrestled the gun away from him, and called the police.
These facts are taken from statements made by the prosecutor at sentencing. Appellant did not object to or disagree with the prosecutor’s presentation of these facts.
On March 18, 2008, pursuant to a plea agreement, appellant pled guilty to counts 4 and 9 and admitted the robbery strike and probation ineligibility allegation. The plea agreement provided appellant would receive a sentence of two years for count 9, doubled pursuant to the Three Strikes Law, and 16 months for count 4, for a total prison term of five years four months. Attached to the probation report were letters of support from family members and employers and certificates showing appellant had completed various programs. A letter from Delancey Street Foundation showed appellant had been tentatively accepted into a residential treatment program, pending medical and legal clearance.
At sentencing on June 18, 2008, the trial court considered on its own motion whether to exercise its discretion to strike the prior strike. After considering the parties’ arguments on the issue, the trial court declined to do so. It stated: “[I]t’s just not possible for me to say that the interests of justice are best dictated by my thwarting the three strikes law here . . . . I really do have to look at the spirit and the reason for the three strikes law and the legislature’s and the people’s voting that law into place. [¶] And it’s a very clear dictate to the Court that someone with prior serious and violent convictions be treated differently in terms of repeated conduct. And were that prior crime just 21 years ago, and then . . . had we not heard from you for another 20 years, that might be different. [¶] But as I review your record here . . . there’s just not a significant period of redemption. [¶] The 1987 grand theft that caused you to go to state prison before involving some sort of a gun in the Round Table Pizza preceded the strike that’s charged here . . . . [¶] But even after that crime for which you received a five-year prison sentence and several violations of parole, you weren’t out long in 1994 before a new crime was committed, and then 1995 again, and you went to prison again for that crime; and then you were out in 1997, it looks like you got credit for a bunch of time there, another five-year, four-month prison sentence, and then violations of parole there, leading us all the way to 2004, and then it looks like you were getting it together in 2004, but alas, here we are with a string of significant criminality.” The court sentenced appellant to five years four months in state prison.
Discussion
Appellant contends the trial court abused its discretion in not striking his prior strike. Assuming, without deciding, that the issue is properly before this court, we conclude there was no abuse of discretion.
The parties disagree whether appellant was required to obtain a certificate of probable in order to pursue this appeal.
A trial court has discretion to strike a prior serious or violent felony conviction that constitutes a strike under the Three Strikes Law. (People v. Williams (1998) 17 Cal.4th 148, 151-152 (Williams); Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530 [prior conviction allegation].) This exercise of discretion is broad but limited in the sense that it must be “in furtherance of justice.” (Williams, supra, 17 Cal.4th at p. 158.) “ ‘ “ ‘[T]he language . . . “in furtherance of justice,” requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People . . . .’ . . . At the very least, the reason for dismissal must be ‘that which would motivate a reasonable judge.’ ” ’ ” (Id. at p. 159.) In deciding whether to strike a prior strike, the trial court considers the nature and circumstances of the present felony and any prior serious felony conviction, as well as the defendant’s background, character and prospects in order to determine whether he may be deemed to be outside the spirit of the Three Strikes Law and thus should be treated as if he had no prior conviction for a serious felony. (Id. at p. 161; see People v. Garcia (1999) 20 Cal.4th 490, 500.) A trial court applies stringent standards in order to find an exception to the sentencing norm set out in the Three Strikes Law. (People v. Carmony (2004) 33 Cal.4th 367, 377-378 (Carmony).) Because there is a strong presumption that a sentence conforming to the normal application of the Three Strikes Law is rational and proper, a trial court that departs from this sentencing norm must state a reason justifying that decision. (Id. at p. 378.)
On appeal, the trial court’s decision is reviewed for an abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 371, 374-376.) We consider whether the decision falls outside the bounds of reason under the applicable law and the relevant facts. (Williams, supra, 17 Cal.4th at p. 162.) It is not enough to show that reasonable people might disagree about whether to strike a prior strike; if the record shows the trial court balanced the relevant facts and reached an impartial decision conforming to the spirit of the law, we will affirm its ruling even if we might have ruled differently if the issue were posed to us in the first instance. (Carmony, supra, 33 Cal.4th at pp. 377-378.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
Appellant argues his robbery conviction should have been stricken because it occurred in 1988 and was not as serious as other possible strikes such as murder, voluntary manslaughter or rape. He also notes that his criminal record “reflects his drug addition problem, whereupon he either committed drug offenses or the offenses generated money and other items to fuel [his] addiction.” He points out that his family and co-workers wrote letters of support, that he was employed and was a good worker, and that he had successfully completed various programs and had been accepted into the Delancey Street program.
Although a prior conviction may be stricken if it is remote in time, it is “improper” for the court to simply consider the length of time “with blinders on.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Rather, a strike should only be stricken for being remote if the defendant’s subsequent lawful conduct has “wash[ed] out” the significance of the strike. (Ibid.; see also Pen. Code, § 667.5, subds. (a), (b).) If a defendant has “led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating about a 20-year-old prior.” (Humphrey, supra, 58 Cal.App.4th at p. 813.) In other words, if the defendant has not led a “legally blameless life” since the prior conviction, then “Far from being ‘washed out,’ the prior [is] ‘dyed in.’ ” (Ibid.)
Here, although the robbery conviction was remote, there was, as the trial court noted, no “significant period of redemption” between 1988 and the date the current offense took place. Appellant’s record of other criminal offenses was lengthy and unrelenting, including drug-related offenses, forgery, grand theft and petty theft, receiving stolen property, numerous commitments to state prison, and several parole violations. Appellant’s criminal history demonstrates his repeated commission of offenses, rather than the kind of “crime-free life” before and after his strike conviction that would give significance to the remoteness of the prior conviction.
We recognize, as the trial court did, that appellant’s addiction to drugs was an apparent contributing factor to his criminal record. We also note that appellant’s family and employers were supportive and that he had been accepted, at least tentatively, into a residential treatment program. However, the record also shows that appellant had already been given the chance to treat his drug addiction and had relapsed each time. Moreover, as the trial court noted, a person with appellant’s criminal history, including a robbery in which he “put[] a gun in someone’s head or face and robs from them . . . just ha[s] to be treated differently [from] someone who . . . does not repeatedly commit crimes, whether it’s for drug reasons or others.” (Italics added.)
We also disagree with appellant’s assessment of the seriousness of the robbery. Although, as appellant points out, he did not kill or rape anyone he held a loaded shotgun to an innocent victim’s head, ear and directly in her face, yelling obscenities at her to open the safe and give him money. He involved two other employees and pointed a gun at and tried to handcuff one of them, and admits on appeal that he committed the offense in a “vicious” manner. In light of appellant’s prior strike and his continuous life of crime, the trial court could reasonably conclude that appellant continued to pose a cognizable risk to society that did not take him “outside the spirit of the Three Strikes [L]aw.” (See Williams, supra, 17 Cal.4th at pp. 162-163.)
People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop), on which appellant relies, is distinguishable. There, the Court of Appeal upheld the trial court’s decision to strike two prior strikes after the defendant was convicted of stealing six videocassettes from a drug store. (Id. at pp. 1248, 1251.) In striking the prior strikes, the trial court noted the strikes were 17 to 20 years old, petty theft was a minor offense, and the penalty of 12 years the defendant received was appropriate for the offense because it would “stop the revolving door of this defendant [by] . . . keep[ing] him in prison for a significant period of time . . . .” (Id. at p. 1248.)
Although some of the facts in Bishop and in this case are similar, including the remoteness of the strikes, the defendants’ ages, criminal history, and their addiction to drugs, here, appellant received a sentence of only five years four months for crimes that were more serious in nature than taking six videocassettes, and the trial court noted the sentence appeared to be “a fair deal.” “[A] defendant’s sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” (People v. Garcia, supra, 20 Cal.4th at p. 500.) Here, striking the prior conviction would have left appellant with a much shorter sentence that would not have “stop[ped] the revolving door . . . [by] keep[ing] him in prison for a significant period of time . . . .” (See Bishop, supra, 56 Cal.App.4th at p. 1248.)
Moreover, in upholding the trial court’s decision to dismiss the prior strikes, Bishop emphasized that “Appellate review of a [trial court’s decision whether to dismiss a strike] is limited,” and stated that “While the People and perhaps even this court may be of the opinion that [the defendant] appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude,” but what the trial court found was appropriate. (Id. at pp. 1247, 1251.) Giving similar deference to the trial court’s decision in this case, we conclude appellant has failed to show that the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (See Carmony, supra, 33 Cal.4th at p. 377.)
Disposition
The judgment is affirmed.
We concur Siggins, J., Jenkins, J.