Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1210381. Charles Stone, Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., Cornell, J.
INTRODUCTION
Appellant, Ernest Eugene Fader, was found guilty after a jury trial on August 15, 2006 of first degree burglary (Pen. Code, § 459). In a bifurcated proceeding, the trial court found true allegations that appellant had a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b) through (i), and 1170.12, subds. (a) through (d)) and within the meaning of section 667, subdivision (a).
Unless otherwise noted, all statutory references are to the Penal Code.
Both special allegations were based on appellant’s conviction in 1992 for lewd and lascivious conduct on a child under age 18.
Appellant filed a request pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) for the trial court to exercise its discretion to strike the prior serious felony enhancement. Defense counsel argued his conviction in 1992 predated the three strikes law. Appellant argued he is severely handicapped, suffers a mental illness, and is an alcoholic who returned the property that he stole.
At the sentencing hearing on December 1, 2006, the trial court denied appellant’s request to dismiss the prior serious felony allegation.
The court sentenced appellant to the midterm of four years for burglary which it doubled to eight years pursuant to the three strikes law. The court imposed a consecutive term of five years for the prior serious felony enhancement for a total prison term of 13 years. The court awarded custody credits and imposed a restitution fine. Appellant contends the trial court abused its discretion in refusing to strike his prior serious felony conviction. We disagree and will affirm the judgment.
FACTS
Andrea Featherston was taking a shower at her home between 10:45 a.m. and 11:30 a.m. on June 8, 2006, when she thought she heard her oldest son in the house. She thought he had come home from school early. She called out to him but heard no response. Featherston stepped out of the shower and called her son’s name, again she heard no response.
Featherston left her home at 11:50 a.m. to pick up her youngest son from his school, which is nearby. Featherston returned just before noon and sat down at her computer while talking on the phone to a friend. Featherston noticed a window in the dining room that faced the backyard had been opened and the screen removed. She became frightened, ended her conversation, and called her husband and her oldest son.
Featherston looked around and noticed her middle son’s bicycle was missing. When she checked a back door leading to the backyard, she discovered it was unlocked. There was a bag in front of the refrigerator and as many as ten bottles of Corona beer missing from the refrigerator. Featherston’s oldest son came home and while looking around the carport saw three full bottles of beer and a pole saw used to cut tree limbs.
Featherston spoke to a postal carrier she had known for years to tell him what happened. He went to the apartment complex of a person Featherston suspected. Featherston then saw a man walking her son’s bicycle back to her home between 2:55 p.m. and 3:00 p.m. Featherston identified appellant as the person with the bicycle. Featherston’s older son had told her that he saw the man with the bicycle in the backyard when she left briefly to pick up her middle son from school. Featherston called the police on her cell phone. Appellant apologized for taking the bicycle.
A police officer went to appellant’s home the evening of the crime. Appellant admitted entering Featherston’s home through an unlocked door. He also admitted taking the bicycle and some beers. Appellant did not appear to be under the influence of alcohol when he made these admissions.
According to the probation report, appellant had convictions in: 1989 for misdemeanor theft, 1992 lewd and lascivious conduct on a minor under age 14, and 1996 for felony annoying or molesting a minor under age 18.
Appellant was sexually molested as a child by an uncle. Appellant has difficulty breathing, suffers from headaches, and denied being “crazy.” The probation officer talked to a medical staff person at the Public Safety Center who confirmed appellant has been prescribed anti-psychotic medication and had a psychotic break in 1994 when he was found incompetent to stand trial. He has Muscular Dystrophy and required reconstructive surgery shortly after he was born.
Appellant admitted to the probation officer that he began drinking alcohol at age ten. He considers himself to be an alcoholic. He has used cocaine, methamphetamine, marijuana, and LSD. Appellant has also inhaled paint, gasoline, and glue. The probation officer reviewed the report of a psychologist who examined appellant pursuant to section 1368 in July 2006. The doctor noted appellant had a brief psychotic episode that remitted with treatment and shows no current evidence of a serious mental disorder.
DISCUSSION
Appellant contends the trial court abused its discretion in refusing to strike his prior serious felony conviction. Appellant argues the facts of this offense were not serious and that his past record is both remote and not the most serious. Appellant also argues that he suffers from physical disabilities due to Muscular Dystrophy and from mental illness.
In reviewing for abuse of a trial court’s sentencing discretion, we are guided by two fundamental concepts. First, the burden is on the party attacking the sentence to clearly demonstrate the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. The trial court’s discretionary determination to impose a particular sentence will not be set aside on review. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).)
Second, a decision will not be reversed merely because reasonable people could disagree. An appellate tribunal is neither authorized nor warranted to substitute its judgment for the judgment of the trial judge. (Carmony, supra, 33 Cal.4th at p. 377; Alvarez, supra, 14 Cal.4th at p. 978.) Taken together, these concepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at p. 377.)
Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. In ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation under the three strikes law, on the trial court’s motion pursuant to section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of a defendant’s current felonies and prior serious and/or violent felony convictions, and the particulars of the defendant’s 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. (Carmony, supra, 33 Cal.4th at p. 377; People v. Williams (1998) 17 Cal.4th 148, 161.)
The three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the sentencing court to explicitly justify its decision to do so. The three strikes law creates a strong presumption that any sentence which conforms to these sentencing norms is both rational and proper. (Carmony, supra, 33 Cal.4th at p. 378.)
The trial court was well aware of its sentencing discretion and considered appellant’s past and current record. (People v. Barrera (1999) 70 Cal.App.4th 541, 555.) Appellant does not appear to have a current mental health issue, according to the psychologist who recently evaluated him. Appellant has not offended in some time, but one of his prior felony offenses was a serious felony within the meaning of the three strikes law. Appellant burglarized a home with a child present, and was possibly prowling around the home while the child’s mother was taking a shower. According to the probation report, this is appellant’s third felony conviction. Appellant’s medical problems are not an excuse for his felonious conduct. He admits being an alcoholic and to trying many illegal drugs. Appellant has not demonstrated much interest in reforming his anti-social behavior. He has failed to show that the trial court abused its discretion in failing to strike his prior serious felony conviction.
DISPOSITION
The judgment is affirmed.