Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. LA041930, Richard Kirschner, Judge.
The Law Offices of United Defense Group, Eric Chase and Oren Rosenthal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Antrero Fuller, also known as Antrero Shandree Fuller, appeals from the judgment entered upon his convictions by guilty plea to two counts of second degree robbery (Pen. Code, § 211, counts 1 & 9), three counts of false imprisonment by violence (§ 236, counts 3, 5 & 11) and one count of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1), count 8). Appellant admitted having suffered a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court sentenced him to an aggregate state prison term of 14 years four months. Appellant contends that the trial court (1) erred in imposing the five-year enhancement under section 667, subdivision (a) because the serious prior felony was a juvenile adjudication, and (2) abused its discretion in denying 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 (Romero).
We reverse in part and affirm in part.
Because the issues raised by appellant pertain to sentencing, we provide only a cursory statement of the underlying facts which are taken from the preliminary hearing.
On November 28, 2002, at approximately 2:45 p.m., appellant was sitting at the counter of the Starbucks coffee shop on Washington Boulevard, in Culver City. All of a sudden, he went behind the counter and told Joni Lindsay (Lindsay), the store supervisor in charge of closing, to “get into the back room,” sit on the ground and open the safe. After she opened the safe, a second individual, with whom appellant had been drinking coffee, entered the back room. He took Lindsay and a coworker, Marilyn Ramirez (Ramirez), into the bathroom, tied their hands and told them to stay there. When it was quiet in the shop, the employees opened the door, and the suspects were gone. The safe and registers had been emptied of over $3,000, and the suspects took candy, mints and an espresso machine.
On December 1, 2002, at approximately 8:55 p.m., appellant and another man entered the Starbucks coffee shop on Riverside Drive, in Sherman Oaks, where appellant ordered a drink. Christina Walker (Walker), a store employee, went to the back, preparing to close. The next thing she knew, appellant and another man were standing next to her and demanding money. They directed Walker to the back where coworker, Travis Malcolm Nelson (Nelson), was doing dishes. Appellant’s accomplice tied up the employees and had Nelson try to open the safe. When he was unable to do so, the suspects demanded keys to the cash registers. Appellant went to the cash registers, taking approximately $1,100, but ran back because the police had arrived. The suspects then ran out the back doors.
On December 1, 2002, at approximately 9:30 p.m., appellant knocked on Carolyn Smith’s (Smith) apartment door, on Houston Street. When she opened it, he “forced his way into [her] kitchen” and refused to leave, appearing to need a place to stay. Appellant indicated he was hiding from the police, who were outside. Appellant had Smith turn off the apartment lights. He sat in her hallway most of the evening and took her phone so she could not make any calls. He prevented her from leaving by “physically blocking and through intimidation.” The next morning, when the police were gone, appellant walked Smith to her car and drove it somewhere, with Smith in the passenger seat. Appellant finally stopped the car, threatened Smith not to telephone the police or his friends would “take care of [her],” and left.
DISCUSSION
I. The five-year enhancement under section 667, subdivision (a) cannot be premised on a juvenile adjudication.
A. Sentencing
Appellant pled guilty to two counts of robbery, three counts of false imprisonment and one count of dissuading a witness from reporting a crime. He also admitted a prior felony strike. The trial court sentenced him to an aggregate prison term of 14 years four months calculated as follows: the midterm of three years for robbery in count 1, a consecutive one-third of the midterm of two years, or eight months, on count 5, a consecutive term of one-third the midterm of three years, or one year, on count 9, and to concurrent sentences of the midterms of two years on counts 3, 8, and 11. The principal term and consecutive terms were doubled as second strikes. An additional five years was imposed for the habitual offender enhancement in section 667, subdivision (a).
B. Contention
Appellant contends that the five-year enhancement in section 667, subdivision (a) must be stricken because the prior serious felony upon which it was based was a juvenile adjudication. He argues that case law establishes that juvenile adjudications do not constitute prior convictions for sentence enhancement purposes and that the three strikes law, which expressly permits juvenile adjudications to constitute a prior conviction for purposes of enhancing sentence “under certain circumstances” “did not substantively affect subdivision (a) of Penal Code 667.” Appellant requests that we amend the sentence accordingly. The People agree that the trial court erred in imposing the section 667, subdivision (a) enhancement based upon a prior juvenile adjudication, but requests that we remand this matter for resentencing. We agree that remand for resentencing is appropriate.
C. Propriety of section 667, subdivision (a) enhancement
Section 667, subdivision (a) provides in part: “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state..., shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.”
The parties agree that a prior juvenile adjudication may not be used to enhance an adult criminal offense under section 667, subdivision (a). (See People v. West (1984) 154 Cal.App.3d 100, 103, 110 [“defendant’s prior juvenile adjudications were not ‘prior conviction[s]’ within the meaning of Penal Code section 667, subdivision (a)”], cited with approval in People v. Garcia (1999) 21 Cal.4th 1, 24 & People v. Weidert (1985) 39 Cal.3d 836, 847–848, fn. 10.) The trial court therefore erred in imposing the section 667, subdivision (a) five-year enhancement based upon appellant’s prior juvenile adjudication.
D. Remedy
A defendant’s aggregate prison term under the determinant sentencing law “cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components. The invalidity of some of those components necessarily infects the entire sentence. [¶]... [¶] In making its sentencing choices in the first instance, the trial court undoubtedly considered the overall prison term to be imposed.” (People v. Savala (1983) 147 Cal.App.3d 63, 69–71; see also People v. Rojas (1988) 206 Cal.App.3d 795 [remanded for resentencing where section 667, subdivision (a) was improperly imposed because the alleged prior serious felony actually occurred after the current charges].) In accordance with these authorities, this matter will be remanded for resentencing.
II. The trial court did not abuse its discretion in denying appellant’s Romero motion.
A. Background
As previously stated, appellant was convicted of two counts of second degree robbery, three counts of false imprisonment and one count of dissuading a witness, arising out of three separate incidents. Two of the incidents involved tying up employees at two Starbucks locations and forcing them to open safes. The third incident involved appellant forcing his way into a woman’s residence, keeping her there with him overnight and taking her the next day in her car to an unknown location.
The probation report indicates that appellant’s criminal history was as follows: (1) In October 1992, as a juvenile, he was adjudicated for robbery with use of a firearm and sent to the California Youth Authority. He was discharged from parole on October 1, 1999. (2) On January 10, 1995, appellant was convicted of misdemeanor grand theft of an access card-selling with intent to defraud and placed on 36 months summary probation. Probation was later modified, and appellant was sentenced to serve 10 days in county jail. (3) On February 4, 1996, appellant was convicted of six counts of grand theft property, forging access card to defraud, and related offenses and was placed on five-years probation subject to 365 days in county jail. (4) On April 2, 2007, appellant was convicted of a May 2001 petty theft with priors, a misdemeanor, and placed on three years of summary probation on condition he spend 70 days in county jail. The probation report also indicates appellant’s possible involvement in other offenses for which no dispositions were noted.
Though the probation report is unclear, it suggests, at the least, that appellant was also arrested earlier in 1992 for robbery and assault with a deadly weapon, not a firearm, with great bodily injury likely, and was sent to juvenile hall.
Before sentencing, appellant moved to dismiss his prior strike on the grounds that he was a juvenile at the time it was sustained, the strike was remote in time, having occurred more than 15 years before the current charges, that a lengthy sentence would still be imposed if the strike were dismissed, and that since the charged offenses he had been “a productive member of society.”
The trial court denied the motion, finding that appellant had a lengthy criminal history, including an older juvenile adjudication for armed robbery, for which he was imprisoned. Following his release, he committed a series of fraud and theft related offense. The trial court found the charged conduct to be “egregious.”
B. Contention
Appellant contends that the trial court abused its discretion by refusing to dismiss his prior juvenile adjudication as a strike. He argues that the prior strike was remote in time, appellant was a minor when he suffered it, and he has been rehabilitated. This contention lacks merit.
C. Applicable principles
Section 1385 provides in part: “The judge... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) Romero held that trial courts have authority to strike a prior conviction pursuant to section 1385. In deciding whether to do so, the trial court must take into account the defendant’s background, the nature of his current offense and other individualized considerations. (Romero, supra, 13 Cal.4th at p. 531.) Determining what constitutes “‘in furtherance of justice’” entails 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 pp. 530–531.) Thus, in deciding whether to strike a prior conviction, “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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
“‘The burden is on the party attacking the sentence to clearly show that 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, and its discretionary determination to impose a particular sentence will not be set aside on review.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978 [in context of determining whether to reduce wobbler from felony to misdemeanor under section 17, subdivision (b)].) We presume, in the absence of evidence to the contrary, that the trial court considered all relevant criteria (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836) and knew and applied the correct statutory and case law (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430).
Striking a serious felony is an extraordinary exercise of discretion and is reserved for extraordinary circumstances (See People v. Philpot (2004) 122 Cal.App.4th 893, 905), such as where the trial court is not aware of its discretion or considers impermissible factors. (Ibid.) It only occurs when reasonable minds could not differ that the criminal falls outside the spirit of the three strikes scheme. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
D. Abuse of discretion
The trial court here articulated its awareness of its discretion to dismiss the prior strike and correctly stated the factors it had to consider in exercising it. We cannot say that the ruling was irrational or arbitrary.
The current charges arose from three separate incidents. In two of them, appellant was assisted by an accomplice, making the criminal endeavor more dangerous than acting alone. In those two incidents, the perpetrators tied up their victims, causing them understandable terror in the uncertainty of what their captors were going to do. In the third incident, appellant burst into Smith’s residence, stayed there all night and then took her in her car to an undisclosed location. These crimes were extremely serious because they involved an accomplice, were intrusions into the home and businesses of people and were accompanied by threats.
While appellant’s criminal record is not the worst that unfortunately comes before us, it is nonetheless considerable. While his prior strike was incurred many years ago when he was a minor, as the trial court pointed out it was an armed robbery. There is no case law that compels a judge to strike a prior conviction because it is old. (See People v. Gaston (1999) 74 Cal.App.4th 310, 320 [reversed trial court order striking a 1981 prior conviction as an abuse of discretion because of the defendant’s “unrelenting record of recidivism,” characterizing him as “the kind of revolving-door career criminal for whom the Three Strikes law was devised”].) Since that time, he has been convicted of grand theft, forging an access card and petty theft with priors.
These facts do not present circumstances removing appellant from the spirit of the three strikes law. While it can be argued that his “rehabilitation” in the five years that he was a fugitive from justice, including his apparently successful marriage, employment and parenting, suggest that his future prospects might be favorable, we cannot say that this factor trumps the other factors and mandates dismissal of his prior strike, particularly as appellant achieved his purported rehabilitation while a fugitive from justice. It seems anomalous at best, to dismiss appellant’s prior strike in the interests of the very justice that he successfully thwarted for five years.
DISPOSITION
The imposition of the habitual offender enhancement within the meaning of section 667, subdivision (a) is reversed, that enhancement is stricken and the judgment is otherwise affirmed. The matter is remanded to the trial court for resentencing.
We concur: BOREN, P. J. CHAVEZ, J.