Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. SWF020218. Sherrill A. Ellsworth, Judge. Affirmed as modified.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
A jury found defendant guilty of making criminal threats (Pen. Code, § 422) (count 1); false imprisonment by means of violence or menace (§ 236) (count 2); and displaying of a deadly weapon, a misdemeanor, (§ 417, subd. (a)(1)) (count 3). The jury also found true that defendant had personally used a deadly weapon, to wit, a knife, (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) in the commission of count 1 and that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant thereafter admitted that the offenses were committed while he was on bail (§ 12022.1) and that he had sustained a prior prison term (§ 667.5, subd. (b)), a prior serious felony (§ 667.5, subd. (a)(1)), and a prior strike conviction (§§ 667, subds. (c), (d)(1) & 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of 22 years 8 months in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) his sentences for counts 2 and 3 should have been stayed pursuant to section 654; (2) there was insufficient evidence to support the gang enhancement; (3) the trial court made several other sentencing errors; and (4) the trial court abused its discretion in denying his motion to dismiss his prior strike conviction.
I FACTUAL AND PROCEDURAL BACKGROUND
On August 25, 2005, then 13-year-old Matthew W. was walking home from middle school with his friend Johnny A. when they were stopped by defendant and defendant’s nephew, Joey S., who were on bicycles. Joey was about one year older and about 30 to 40 pounds heavier than Matthew. During the encounter, defendant and Joey blocked Matthew and his friend’s way with their bicycles, preventing them from moving or getting away.
Defendant told Matthew and Johnny that he was with the San Jacinto or First Street gang and was Joey’s uncle. Defendant also stated that Matthew needed to leave Joey alone or Matthew was going to get hurt. Thereafter, defendant pulled a knife with a six- to seven-inch blade and put it close to Matthew’s stomach. He told Matthew he was going to put the knife in him, stab him, and “fuck” him up. Defendant also lifted his shirt to reveal several San Jacinto gang tattoos and pointed out others on his arms. Matthew was scared during the encounter. After the encounter, Matthew told his mother, who in turn contacted the police.
At the time of the attack, Matthew knew Joey but did not know defendant. Matthew had fought with Joey about a month prior to the encounter, because Matthew had purportedly disrespected Joey’s neighborhood. Having grown up in the area, Matthew knew Joey and others as San Jacinto Street (or San Ja or First Street) gang members. Indeed, other members of the San Jacinto gang had instigated fights with Matthew.
About a week after the August 25 encounter, Matthew was attacked by defendant’s brother, who was a San Jacinto gang member and who called Matthew a snitch. Following this attack, Matthew was approached by a female San Jacinto gang member with a knife after she had left a message on Matthew’s My Space page telling him he would be found dead on a nearby Indian Reservation if he testified against defendant. Matthew was frightened.
A gang expert clarified the significance of gang tattoos, graffiti, gang loyalty, and gang rivalry. The expert was familiar with the San Jacinto gang and its territory, colors, various names, identifying tattoos, and graffiti and had spoken with many of its members. The gang was founded between 1960 and 1970 and had around 120 members at the time of trial.
The primary color of the gang was blue, and the common graffiti symbols were “SJ,” “1ST,” “CP,” “S13,” and “IE.” Though the gang was primarily Hispanic, the officer knew of three Caucasian members. The two methods of joining the gang were to be “jumped in,” wherein the prospective member survived a beating, or “blessed in,” wherein a relative sponsored a new member. The primary activity of the gang was maintaining respect in the neighborhood by committing criminal activity such as vandalism, vehicle theft, selling drugs, assault, and murder.
The jury viewed pictures of defendant’s arms and stomach, which had numerous San Jacinto gang tattoos. Defendant lived with his mother, his wife and child, and his nephew Joey. In the bedroom occupied by defendant, officers found a picture depicting San Jacinto gang members, as well as San Jacinto gang clothing items. Joey’s cellular telephone, which was confiscated, contained pictures of defendant’s stomach depicting the San Jacinto gang tattoos, as well as pictures of Joey with other San Jacinto gang members exhibiting gang hand signs.
The expert opined defendant and Joey were both associates of the San Jacinto gang. He concluded that defendant’s display of his gang tattoos to Matthew demonstrated defendant committed the subject crimes for the benefit of the gang because it intimidated and challenged Matthew. He explained that defendant’s threatening conduct increased the gang’s power, and by pointing to the gang tattoos on his body, defendant demonstrated his commitment to the San Jacinto gang. In addition, by showing his gang’s tattoos, it ensured that defendant would be identified with the crimes, thus increasing his status within the gang.
The expert admitted on cross-examination that he had interviewed around 500 gang members but had never encountered defendant. He acknowledged that the San Jacinto gang was primarily Hispanic, yet defendant was Caucasian, and that the police had no gang index cards on defendant. The expert also admitted that defendant had never been accused of “tagging,” and there was no evidence defendant had been “jumped” or “blessed” into the gang. The officer also admitted that being a gang member is not a life-long commitment and that it is possible for a 29-year-old married man with children, like defendant, to walk away from a gang.
Defendant’s mother and Joey testified on defendant’s behalf. Essentially, they claimed the gang-related items found in defendant’s bedroom belonged to Joey. Joey acknowledged he had pled guilty to false imprisonment in relation to the instant offense but claimed he was not a gang member even though he had appeared in the picture of the gang members found in defendant’s bedroom.
II DISCUSSION
A. Imposition of Consecutive Sentences
Defendant contends his sentences on count 2 for false imprisonment and count 3 for brandishing a knife should have been stayed pursuant to section 654 because these offenses were part of one indivisible course of conduct with the same intent and objective as count 1 for making criminal threats.
At the sentencing hearing, defense counsel argued that all three crimes were one act incident to the one intent and objective of keeping Matthew from fighting with his nephew. The prosecutor argued there were three separate acts: first, stopping Matthew so he could not get away; second, threatening Matthew so that he would not “mess with the gang”; and third, brandishing a knife to scare Matthew.
In sentencing defendant to consecutive terms for the three offenses, the trial court agreed with the prosecutor, finding, “[T]here was a false imprisonment, [Matthew] was unable to move. There was a dialogue, and that was separate than the false imprisonment, where a gang tattoo was shown and a threat occurred, and then as a third and separate act in this entire... [¶]... [¶]... incidence was a threat with a knife. They are separate, they are distinct, and even if they took place at the same time, each can be identified as isolated, and it is clear that this is a situation where even worse harm could have been created.”
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘Whether a course of criminal conduct is divisible, and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.’” (People v. Norrell (1996) 13 Cal.4th 1, 6.) “[T]he Supreme Court has long applied section 654 to preclude multiple punishment where multiple acts, or offenses, were committed incident to a single intent and objective.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
As explained by the court in People v. Nubla (1999) 74 Cal.App.4th 719 (Nubla), “‘“The divisibility of a course of conduct depends upon the intent and objective of the defendant.... [I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” [Citations.]’ [Citation.]” (Id. at p. 730.)
The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless it is not supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438, cited and approved on this point in People v. Osband (1996) 13 Cal.4th 622, 730.) The court’s findings may be either express or implied from the court’s ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.)
Applying these principles, we find the trial court properly imposed consecutive sentences on counts 2 and 3. To answer that question, we first review the elements of each crime. The crime of making a criminal threat requires a willful threat to commit a crime that will result in death or great bodily injury, made with the specific intent that the statement be taken as a threat. (§ 422.) In addition, the threat must be “so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat” and “thereby cause[] that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety....” (Ibid.) The crime of false imprisonment requires for its commission “some intended confinement or restraint of the person.... Any exercise of force or express or implied threat of force by which in fact the person is restrained from his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is such imprisonment. The imprisonment may be committed by acts or words merely operating on the will of the individual and/or by personal violence.” (People v. Haney (1977) 75 Cal.App.3d 308, 313.)
As the crime of false imprisonment can be committed by issuing a threat of force, it is apparent that a single threat could support a conviction for both felony false imprisonment and making a criminal threat. The question is whether that occurred here. We conclude it did not. Substantial evidence shows that the crime of false imprisonment was completed when defendant and Joey used their bicycles to block Matthew and his friend’s path in order to isolate them and make them vulnerable. This offense was complete prior to making the criminal threat. In fact, defendant and Joey using their bicycles in a way that would prevent Matthew from leaving was the subject of the prosecutor’s argument in favor of conviction on count 2. The evidence clearly shows that Matthew was restrained by defendant’s actions in placing his bicycle in a way as to prevent Matthew from leaving as opposed to any threat made by defendant. It is apparent, therefore, that the threat did not support both count 1 and count 2; accordingly, section 654 does not apply.
Nor do we find, as defendant argues, that the false imprisonment (count 2) and brandishing the knife (count 3) were committed with a single intent and objective. As explained above, the crime of false imprisonment was complete before defendant threatened Matthew or pulled out the knife to heighten the threat. Substantial evidence shows that the false imprisonment was not dependent upon the display of the knife or the threat.
However, the court’s finding that defendant entertained a separate and independent objective when he threatened to harm Matthew with the knife (count 1) and brandished the knife (count 3) is not supported by substantial evidence. Separate punishment is not justified, because defendant’s brandishing of the knife while threatening Matthew was simply an additional means by which he accomplished the criminal threat. In fact, the brandishing of the knife was the subject of the prosecutor’s argument in favor of conviction for making criminal threats. Additionally, the jury found true that defendant used the knife during the threat. Because defendant’s objective in making criminal threats cannot be separated from his objective in brandishing the knife, separate punishment is not warranted. Defendant’s sentence on count 3 must be stayed.
B. Insufficiency of the Evidence of the Gang Enhancement
Defendant challenges the sufficiency of the evidence to support the true findings that the crimes in counts 1 and 2 were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) Specifically, he argues the evidence was “legally insufficient” to prove he threatened Matthew with the specific intent of benefitting the San Jacinto gang. Instead, he claims he acted to protect his family, not to increase the reputation of the gang.
The same standard of review applies to claims of insufficiency of the evidence to support a gang enhancement finding as for a conviction. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) In evaluating the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the enhancement true beyond a reasonable doubt. (See People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.) “This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
“In order to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) The element of intent is generally proved with circumstantial evidence. “Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.]” (People v. Pre (2004) 117 Cal.App.4th 413, 420.) Evidence to support the element of specific intent may be shown by a defendant’s conduct, including any words the defendant may have spoken, and by all the circumstances surrounding the commission of the acts. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
To find true a gang enhancement allegation under section 186.22, subdivision (b), the trier of fact need not find defendant actively participated in a gang, just that his felony was committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” (§ 186.22, subd. (b)(1)); see also In re Ramon T. (1997) 57 Cal.App.4th 201, 206.) Acting as a sentence enhancement to other, separate felonies, section 186.22, subdivision (b) is designed as a powerful remedy to the “crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” (§ 186.21.)
These elements essentially require that both the crime and the defendant’s specific intent be gang related. (People v. Gardeley (1996) 14 Cal.4th 605, 619, 621-622, 625, fn. 12.) Although a crime committed in association with the gang suffices even if there is no showing that the crime was for the benefit of the gang (People v. Morales (2003) 112 Cal.App.4th 1176, 1198), a perpetrator’s mere membership in the gang does not suffice to establish the gang enhancement (see People v. Albarran (2007) 149 Cal.App.4th 214, 227; Morales, at p. 1198 [gang enhancement not supported if circumstances show gang members committed crime “on a frolic and detour unrelated to the gang”]). All the circumstances must be evaluated to determine if the evidence shows the crime was gang related. (Compare Morales, at pp. 1182-1183, 1197-1198 [evidence showing commission of crime by gang member defendant in association with two other gang members sufficient to establish gang enhancement; gang member witness told police he would not testify against gang-member defendants because he was afraid of gang retaliation] and People v. Villalobos (2006) 145 Cal.App.4th 310, 315, 322 [sufficient evidence of gang enhancement based on the defendant’s identification of herself as girlfriend of codefendant at time of the offense and her commission of the crime with gang member codefendant in gang territory] with In re Frank S. (2006) 141 Cal.App.4th 1192, 1195, 1199 [insufficient evidence of gang enhancement where only evidence of gang-related intent was single perpetrator’s gang membership]; Albarran, at pp. 217, 227, and People v. Martinez (2004) 116 Cal.App.4th 753, 762 [insufficient evidence for gang registration requirement where the defendant was gang member but no evidence accomplice was gang member].)
In a case where a defendant/gang member commits a felony with another gang member, the jury can readily infer that the crime was in association with the gang, and the defendant intended to promote the gang. (See People v. Morales, supra, 112 Cal.App.4th 1176, 1198; In re Ramon T., supra, 57 Cal.App.4th at pp. 204, 206-207 [gang enhancement supported by fact that minor, in association with two other gang members, assaulted police officer to free minor from officer’s grasp].) In contrast, “the typical close case is one in which one gang member, acting alone, commits a crime.” (Morales, at p. 1198.)
Defendant does not dispute that the evidence established the San Jacinto gang is a criminal street gang or that he was associated with the gang. Rather, he claims there was insufficient evidence to support the finding that he had acted with the specific intent to benefit the gang.
Contrary to defendant’s contention, the evidence was sufficient. First, defendant acted with his nephew Joey. Substantial evidence shows that Joey also associated with the San Jacinto gang. Second, evidence was presented that Joey had previously fought Matthew because Matthew had disrespected the San Jacinto gang. It appears defendant’s encounter with Matthew was predicated upon Matthew’s previous fight with Joey. The People proffered the testimony of a gang expert, who testified that the primary activity of the gang was maintaining respect in the neighborhood. One of the ways this is achieved, the expert explained, was by intimidating people who had disrespected gang members. The San Jacinto gang, according to the expert, was known to “beat down” people who disrespected the gang and threaten them if they called the police. The expert opined defendant’s actions benefitted the gang by challenging and intimidating Matthew. This was evident by defendant’s display of his gang tattoos during the encounter. Additionally, after the altercation, Matthew was threatened and assaulted by other San Jacinto gang members. From the evidence adduced at trial and the expert testimony, a reasonable juror could infer that defendant acted with the specific intent to benefit the gang.
Defendant’s reliance on Garcia v. Carey (9th Cir.2005) 395 F.3d 1099 is misplaced. The statute does not require a specific intent to further the gang’s criminal activity other than the charged offense. Rather, by its express terms, the statute requires the specific intent only to promote, further, or assist in “any” criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Morales, supra, 112 Cal.App.4th 1176, 1198.)
In addition, “‘federal decisional authority is neither binding nor controlling in matters involving state law.’” (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55.) Moreover, Garcia is incorrectly decided. In Garcia, the Ninth Circuit held Penal Code section 186.22, subdivision (b) required proof the underlying crime be committed “to enable or further other criminal activity by the gang.” (People v. Hill (2006) 142 Cal.App.4th 770, 773.) The court in that case apparently assumed that because many crimes that are deemed to be gang related are in furtherance of larger criminal objectives i.e., shootings to avenge “disrespect” or to instill fear in the community in order for the gang to exert dominance over its “turf” an intent to further such objectives is incorporated into the statute as an element of the enhancement. (See Garcia v. Carey, supra, 395 F.3d at pp. 1102-1104.) However, the court did not cite any authority to support that apparent assumption. Simply put, commission of a crime in concert with individuals the defendant knows to be gang members is sufficient to support the inference that the defendant specifically intended to assist crimes committed by gang members. (People v. Morales, supra, 112 Cal.App.4th at pp. 1198-1199.)
As this state’s appellate courts have consistently held, Garcia “misinterprets California law. ‘In Garcia, the Ninth Circuit found insufficient evidence of specific intent to promote, further, or assist in other criminal conduct by the defendant’s gang. We disagree with Garcia’s interpretation of the California statute, and decline to follow it. [Citations.] By its plain language, the statute requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members,” rather than other criminal conduct. [Citation.]’ [Citation.]” (People v. Hill, supra, 142 Cal.App.4th at p. 774.) That is, proof that defendant committed the stabbing to benefit his gang was sufficient to establish the gang allegation. (See Ibid.)
As explained above, there is such evidence in this case. Defendant threatened Matthew with a fellow San Jacinto criminal gang by displaying the gang’s tattoos and brandishing a weapon following an altercation between Joey and Matthew in which Matthew disrespected their gang. We disagree with defendant’s assessment that his “conduct amounted to a misguided attempt to protect his family from a bully.” If that truly were the case, then why did defendant display his gang’s tattoos or brandish a weapon, and why was Matthew threatened by other San Jacinto gang members after the encounter? The evidence here constitutes sufficient evidence to support the jury’s implied finding that defendant acted with the requisite specific intent. Therefore, we must reject defendant’s challenge to the sufficiency of the evidence to support that implied finding.
C. Sentencing Errors
Defendant next claims the trial court made three sentencing errors. First, the court erroneously imposed the on-bail enhancement on all three counts; second, the court erroneously doubled the gang enhancement on count 2; and third, the court failed to recognize count 3 was a misdemeanor.
1. On-bail enhancement
At the sentencing hearing, after imposing sentence on counts 1 through 4, the court stated, “There’s further a status enhancement of five years pursuant to 667(a)(1), a two-year out-on-bail allegation pursuant to Penal Code section 12022.1 , and a one-year prison prior pursuant to section 667.5(b). The total of all status enhancements is eight years.” This is the sentence reflected in the abstract of judgment.
However, the minute order incorrectly notes the court imposed concurrent sentences for the on-bail enhancement pursuant to section 12022.1 on all three counts. As defendant points out, the on-bail enhancement can only be imposed once on a determinate term. (See People v. Anderson (1995) 35 Cal.App.4th 587, 592-593.)
Oral pronouncement of judgment is controlling. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) “Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.” (People v. Mesa (1975) 14 Cal.3d 466, 471, superseded by statute on other grounds in People v. Turner (1998) 67 Cal.App.4th 1258, 1268.) “Courts may correct clerical errors at any time, and appellate courts... that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
We conclude the court’s minute order of the sentencing hearing should be modified to eliminate on-bail enhancements on counts 2 and 3.
2. Doubling of gang enhancement on count 2
Defendant asserts, and the People correctly concede, that the trial court erroneously doubled the gang enhancement on count 2 (false imprisonment). Defendant is correct. (People v. Dominguez (1995) 38 Cal.App.4th 410, 424 [terms for enhancements are not doubled under the three strikes law]; accord, People v. Hardy (1999) 73 Cal.App.4th 1429, 1433.) Accordingly, the gang enhancement attached to count 2 must be modified to reflect one year rather than two years.
3. Count 3
Defendant complains the trial court ignored the fact count 3 was a misdemeanor and, instead, calculated the sentence for this offense as one-third of the midterm.
The brandishing offense (count 3) of which defendant was found guilty is ordinarily a misdemeanor punishable by a county jail term of no more than a year. (§ 417, subd. (a)(1).) However, defendant ignores the fact that the allegation for count 3 also included a gang enhancement pursuant to section 186.22, subdivision (d), and the jury found the gang enhancement to be true. “[S]ection 186.22(d) prescribes an alternate penalty when the underlying offense is committed under specified circumstances....” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900 (Robert L.).)
Section 186.22, subdivision (d) specifically provides: “Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days....” (Italics added.)
Our Supreme Court found that section 186.22, subdivision (d) applies to misdemeanors. (Robert L., supra, 30 Cal.4th at pp. 900-903.) Accordingly, the trial court properly imposed a sentence of one-third the midterm of two years (eight months), doubled to 16 months due to the prior strike, for the offense of brandishing a knife in count 3. However, as previously explained, that sentence must be stayed pursuant to section 654.
D. Motion to Strike Prior
Lastly, defendant contends the trial court abused its discretion by refusing to dismiss his prior strike convictions pursuant to People v. Superior Court (Romero) (1996)13 Cal.4th 497. We disagree.
A trial court’s decision to not dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “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.”’ [Citation.] 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, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 and People v. Preyer (1985) 164 Cal.App.3d 568, 573; see also People v. Myers (1999) 69 Cal.App.4th 305, 309.)
“In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (People v. Carmony, supra, 33 Cal.4th at p. 378, citing People v. Langevin (1984) 155 Cal.App.3d 520, 524 and People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); People v. Myers, supra, 69 Cal.App.4th at p. 310.)
But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (People v. Myers, supra, 69 Cal.App.4th at p. 310.) “Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The touchstone of the analysis must be “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, supra, 17 Cal.4th 148, 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Defendant contends the court should have granted his request to strike his prior strike conviction because this was not a gang case, the victim was a “young man prone to violence,” the victim was a gang member, and the trial court erroneously relied upon the gang factor in denying his motion to dismiss his prior strike for rape. He further claims his motion should have been granted given that the crimes were not severe and given his age, background, character, and prospects for changing his life.
We cannot conclude the trial court abused its discretion in declining to strike defendant’s prior strike conviction. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion for improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams.
This case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Though defendant did not actually harm the victim, the current crimes can hardly be characterized as nonviolent or trivial. In addition, defendant has a violent and serious prior record of criminal behavior as evidenced by his rape conviction for which he was sentenced to prison for six years in 1995. In addition, defendant had pending charges for burglary and possession of drugs. Moreover, defendant had committed the instant offenses a mere 17 months after being released on parole and while out on bail. In fact, defendant continued to commit crimes and failed to live a crime-free life for about the past 12 years, beginning at the age of 18.
The court here could not overlook the fact defendant continued to commit serious criminal offenses and violate the terms and conditions of his parole and bail even after serving time in prison. The court could not also ignore the fact that the jury found the offenses were gang related. Though defendant attempts to characterize this case as not gang related and reargue the facts found true by the jury, his conduct as a whole was a strong indication of unwillingness or inability to comply with the law. He has also shown a proclivity for weapons and violent behavior through his prior and instant conduct. Finally, he has shown his continual disregard for the law as evidenced by his parole and bail violations. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th at p. 161.)
Thus, given defendant’s continuous criminal history, his numerous parole and bail violations, the seriousness of the past and present offenses, and his seemingly dim prospects for rehabilitation and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss defendant’s prior strike conviction. The trial court’s decision not to strike defendant’s priors was neither irrational nor arbitrary.
III DISPOSITION
The one year four month consecutive term imposed for defendant’s conviction for brandishing a knife (count 3) is hereby ordered stayed pursuant to section 654. The trial court is also ordered to amend its minute order of the sentencing hearing to eliminate the on-bail enhancements attached to counts 2 and 3. The trial court is further ordered to modify the gang enhancement attached to count 2 to reflect one year rather than two years. Lastly, the trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation reflecting the above-noted modifications. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.