Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10042
ROBIE , J.
A jury found defendant Tod Feusi guilty of possessing a stolen vehicle and petty theft with a prior theft-related conviction. The court found three prior prison term allegations true. After denying defendant’s motion to strike a prior strike (Romero ), the court denied probation and sentenced defendant to an aggregate term of seven years in state prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant contends the trial court’s denial of his Romero motion was an abuse of discretion. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 16, 2006, the victim, E. H., discovered his car had been stolen. Two days later, his younger brother, M. H., noticed the stolen car in front of a store. Defendant was sitting in the driver’s seat, a Caucasian female, later identified as Tammie Barros, was sitting in the front passenger seat, and two African American males were seated in the back. M. H. recognized the car and left to call his brother. When M. H. returned, the car was parked behind the store with defendant and the other occupants still seated inside. M. H. left the scene and later identified defendant, Barros, and the two men in the back.
E. H. drove to the store and found the stolen car parked behind the store. Defendant was still seated in the driver’s seat. Barros was sitting in the front passenger seat holding a backpack. E. H. approached the car and asked who was driving his car and why they were driving it. Defendant and Barros said, “What are you talking about?” and then got out of the car and left the scene. As they did, E. H. saw Barros place his car stereo into her backpack. E. H. called the police from his cell phone. The two men in the back exited the car laughing and left as well. E. H. got into the car, used a screwdriver to start it (because the ignition had been punched out), and drove home. He discovered the stereo, speakers, a baby seat, and the cap to the gas tank had been stolen from the car; the ignition was punched, and the gas tank broken on the underside.
Approximately 30 minutes after E. H. arrived home, his wife told him defendant and Barros were coming. E. H. went out and took their pictures on his cell phone. Barros ran into a nearby liquor store and covered her face. When police arrived at E. H.’s home, he showed them the pictures and gave them a description of defendant and the others. Police quickly found defendant and Barros walking several blocks from E. H.’s home. E. H. and M. H. separately identified defendant in a field showup, and again at trial.
Defendant was charged with possessing a stolen vehicle (count one) and petty theft with a prior theft-related conviction (count two). The amended information specially alleged defendant had a prior serious felony conviction and three prior prison terms.
The information also charged Tammie Barros as a codefendant.
The jury returned guilty verdicts on both counts. Defendant waived jury trial on the enhancements, all of which the court found true.
The court denied defendant’s request to strike one of his prior strike convictions, denied probation, and sentenced defendant to an aggregate sentence of seven years in state prison. The court also awarded presentence custody credits, and ordered that defendant pay specified fees and fines.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that, in denying his Romero motion, the trial court failed to consider: (1) “his current offenses are non-serious, minor offenses that are ‘wobblers’”; (2) “the strike, a residential burglary, was not a crime that involved violence”; (3) “his only crime of violence was a domestic violence misdemeanor suffered in 1989”; (4) “the vast majority of his priors involved drug and/or alcohol abuse”; (5) defendant “expressed a willingness to participate in a drug rehabilitation program such as provided by the C.R.C”; and (6) defendant “has the support of his family and members of the community.” We are not persuaded.
A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 (the three strikes law). (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court “must consider whether, in light of the nature and circumstances of his 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.” (Williams, at p. 161.)
The trial court’s “failure to . . . strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) In reviewing for abuse of discretion, we are “guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts 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.” (Id. at pp. 376-377.)
Thus, only in “an extraordinary case--where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ” would the failure to strike be an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
Here, the court reviewed defendant’s moving papers, which included a letter of support from defendant’s uncle, a retired captain with the sheriff’s department. Next, the court considered the probation report chronicling defendant’s criminal record, beginning in 1983 and continuing through 2005, which includes many felony convictions and numerous misdemeanor convictions. The report also notes that defendant uses methamphetamine and consumes alcohol on a daily basis, but has never been involved in a drug treatment program. Finally, the report notes that defendant maintains his innocence and claims he had nothing to do with the crimes for which he was convicted.
Defense counsel presented the court with a letter of support written by the monsignor at the church attended by defendant’s family, and noted that defendant’s father had been present in court earlier that morning in support of defendant. Defense counsel drew the court’s attention to the fact that defendant has the support of members of his family and the community; defendant has a drug addiction; the current offense did not involve violence or threat of violence; defendant’s criminal record contains mostly “property crimes, low-level felonies and drug offenses, in addition to the 2001 residential burglary,” most of which were alcohol or substance abuse related; defendant is amenable to a drug rehabilitation program; and defendant does not present a danger to public safety.
Counsel for the prosecution responded that defendant’s record demonstrates he is a “recidivist” who “has victimized people in the community repeatedly”; he continues to deny responsibility for the crime or that he has a continuing drug problem; he has not taken advantage of past opportunities for rehabilitation; and he has a lengthy criminal history.
After considering the probation report, the letters of support, and argument from counsel, the court denied the Romero motion. In doing so, the court noted defendant’s “numerous drug convictions,” his failure to avail himself of drug rehabilitation programs, the lack of violent crimes or convictions in defendant’s past, his numerous theft-related offenses, his refusal to take responsibility for the current crime, and his numerous parole violations, concluding that defendant was “living a life of crime.”
Defendant has the burden of showing the sentencing decision was irrational or arbitrary. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) He has not met that burden. The record reflects the court’s consideration of all of the factors raised by defendant in this appeal. Based on the evidence before it, the trial court’s determination that defendant did not fall outside the spirit of the three strikes law was neither irrational nor arbitrary. We find no abuse of discretion in the court’s denial of defendant’s motion to dismiss the prior conviction.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J., BUTZ , J.