Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. MA034846 of Los Angeles County, Lisa M. Chung, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, James Lovell Flennory, appeals from the judgment entered following his conviction, by jury trial, for two counts of robbery, with a prior serious felony conviction finding and prior prison term findings (Pen. Code, §§ 211, 667, subds. (a)-(i), 667.5). Sentenced to state prison for 14 years, he claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
A portion of the record in this matter was filed under seal based on good cause shown. For that reason, we file this opinion with certain parts redacted.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Circumstances of the offense.
On March 21, 2006, Flennory robbed a retail store. He carried an item to the checkout counter and handed the clerk a $20 bill. When the clerk opened the cash register, Flennory pulled out a handgun and pointed it at her head. He then reached into the cash register while telling the clerk to be quiet. When a second employee saw what was going on, she yelled at Flennory. In response, Flennory pointed the gun at the second employee and said, “Don’t move. Don’t touch any buttons. I will fucking blow this place up.”
Flennory left the store, got into a car and drove away. The employees managed to get the license plate number and Flennory was stopped shortly thereafter. He had $206 in one of his pockets, which exceeded the amount taken from the cash register by $20. The gun was never found.
The defense did not present any witnesses.
2. Pretrial plea bargain negotiations.
The information charged Flennory with two counts of robbery, one count of being a felon in possession of a gun, various enhancements and a second strike allegation under the Three Strikes law. Flennory faced a maximum prison term of at least 33 years. Around the time of the preliminary hearing, the prosecution made a plea bargain offer of 16 years, which Flennory rejected.
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3. Sentencing hearing.
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CONTENTIONS
1. The trial court erred by denying Flennory’s motion for a continuance.
2. The trial court abused its discretion when it sentenced Flennory to a 14-year prison term.
DISCUSSION
1. Trial court did not err by denying Flennory’s request for a continuance.
Flennory contends the trial court erred when it denied his motion, made on the eve-of-trial, for a one-day continuance. This claim is meritless.
The grant or denial of a motion for a continuance is within the sound discretion of the trial court and may only be granted on a moving party’s showing of good cause, which requires a demonstration that both the party and counsel have been diligent in preparing for trial. On appeal, the trial court’s ruling is reviewed for abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 660; see Pen. Code, § 1050.) On appeal, the defendant must demonstrate a clear abuse of discretion in order to challenge the trial court’s denial of a motion for continuance. (People v. Froehlig (1991) 1 Cal.App.4th 260, 265 [“Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.”]; see People v. Gatlin (1989) 209 Cal.App.3d 31, 40 [“trial judge . . . must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result”].)
Eve-of-trial continuance requests require a more substantial good cause showing than requests made in a timely manner. (See People v. Courts (1985) 37 Cal.3d 783, 792, fn. 4 [continuance request made more than a week before trial was timely, in contrast to untimely eve-of-trial, day-of-trial and second-day-of-trial requests, where “lateness of the continuance request [was] a significant factor which justified a denial where there were no compelling circumstances to the contrary”].)
Flennory has failed to demonstrate the trial court abused its discretion when it denied his eve-of-trial request for a one-day continuance. The trial court expressed its concerns having to do with the burden even a one-day continuance might cause the court, and with the extremely small chance Flennory might derive any benefit thereby. Both concerns appear to have been reasonable. (Redacted)
The trial court did not abuse its discretion by denying the continuance request.
2. Trial court did not abuse its discretion by imposing a 14-year prison term.
Flennory contends the trial court abused its discretion when it sentenced him to 14 years in prison. He argues he fell outside the spirit of the Three Strikes law and, therefore, the trial court abused its discretion by not dismissing his strike prior. (Redacted) These claims are meritless.
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375.) “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 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.’ ” ’ [Citations.] 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 p. 376-377.)
The factors to be considered in ruling on a Romero motion were set forth in People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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.”
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Flennory has failed to demonstrate the trial court’s denial of his Romero motion constituted a result “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.