Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM3366, Thomas DeSantos, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, A.P.J., Gomes, J., and Hill, J.
INTRODUCTION
On November 21, 2007 appellant, Bryan Scott Gammell, was charged in an information with burglary (Pen. Code, § 459, count one) and felony vandalism (§ 594, subd. (a), count two). The information alleged six prior prison term enhancements and three prior serious felonies within the meaning of the three strikes law. On April 25, 2008, the court granted the People’s motion to consolidate the instant action with case number 08CM0771. A new information was filed on May 19, 2008, with the same allegations from this action and adding a second burglary allegation as count three.
Unless otherwise specified, all statutory references are to the Penal Code.
In a bifurcated proceeding on June 20, 2008, the court dismissed one strike allegation. The People moved to dismiss the prior prison term enhancements. Appellant waived his constitutional rights and admitted two prior serious felony convictions within the meaning of the three strikes law. On the same day, a jury found appellant guilty of all three counts. The jury found that the value of the damage on the vandalism count did not reach $400.
On July 21, 2008, the court found counts one and three occurred separately and sentenced appellant to consecutive prison terms of 25 years to life on each count for a total prison term of 50 years to life. The court imposed a concurrent term of six months on count two. Appellant contends the trial court abused its sentencing discretion under section 1385 in failing to strike at least one of his prior serious felony convictions. The parties concur the trial court erred in sentencing him to a concurrent term on count two and that count two must be stayed pursuant to section 654.
FACTS
On October 7, 2007, Julia Boettger drove to a renaissance festival in Hanford and parked her 1971 Maverick in the post office parking lot across the street from the park. Boettger locked the car and went to the festival for two or three hours. The car windows were rolled up. When she returned, Boettger found a window rolled down a few inches and door was unlocked. A striped cloth bag containing Chinese coins and a package of cigarettes were missing from the car.
Boettger saw a handprint and fingerprints on the window on driver’s side of the car. Boettger found a police officer who lifted two fingerprints from the car window. The prints were later identified as belonging to appellant.
On October 22, 2007, Tyler Trull, an electrician employed by Dutton Commercial Property Management, was inspecting an empty building owned by Dutton. The building was formerly occupied by WalMart. Although the main front door of the building was locked, the inside lights which were normally off were turned on. Tull’s partner, Jim Turpin, heard a metal clanking sound coming from an area previously occupied by a McDonald’s restaurant.
Turpin saw appellant’s legs and feet hanging from the drop ceiling. Several ceiling tiles had been removed. Appellant was wearing frayed jeans and white tennis shoes. A piece of copper tubing dropped from appellant’s hand. Trull and an assistant quietly exited the building and locked the main door and called the police. On the west end of the building, the double steel doors that were locked with a chain and padlock had been pried open with a metal pipe from a chain link fence. Trull parked his truck against the metal doors to prevent anyone from leaving the building.
Hanford Police officers entered the building and saw a man standing near the automotive department. When the man disappeared from their view, the officers searched the building and found appellant crouched behind a door. Appellant was dressed in blue jeans and white tennis shoes. He had a backpack next to him. A hacksaw, flashlight, and screw driver were found on the ground near appellant.
The backpack contained a flashlight, copper pipe, crowbar, hammer, and vise grips. Appellant also had hacksaw blades, an exacto knife, a pair of wire snips, a cell phone, a small butane torch, drill bits, and miscellaneous small hand tools in the backpack. Appellant’s footprints and fingerprints were found in the building. Appellant’s fingerprints were also found on pieces of metal in a pile on the floor.
There were two shopping carts full of stainless steel partitions and copper piping which had been stripped from the building. Wires and tubing were hanging from the ceiling. Sheetrock was damaged. Most of the bathroom stalls were ripped out or damaged. Toilet seats were unseated. Appellant was arrested and waived his constitutional rights. Appellant admitted the backpack and tools belonged to him but claimed he stayed in the automotive section.
SECTION 1385 DISCRETION
Appellant contends the trial court abused its discretion in failing to strike one of his prior serious felony convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) Appellant bears the burden of establishing that the trial court’s decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (Ibid.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
The court noted that appellant had many convictions and was an habitual criminal. The court noted that the two offenses occurred at different times. Appellant’s counsel requested the court exercise its discretion under the Romero decision and noted there was a long gap between appellant’s last commission of felonies and those in the current action. The prosecutor argued no prior conviction allegation should be stricken and that the court should not exercise its discretion pursuant to Romero. The court found that appellant had not simply reoffended after a 20 year gap in committing crimes. The court further found appellant to be a habitual criminal and that the three strikes law was enacted to make sure habitual criminals receive stronger sentences. The court declined to exercise its discretion to strike either prior serious felony allegation.
Appellant had the following convictions: second degree burglary in 1982, first degree burglary in 1984, felony vehicle theft in 1987, receiving stolen property in 1991, possession of drug paraphernalia in 1993, two counts of first degree burglary in 1993, felony escape in 1993, and public intoxication in 2003. The court found there was insufficient evidence of two felony burglary convictions in Madera County in 1987.
Appellant challenges the court’s weighing of the relevant factors, arguing that the trial court did not adequately exercise its discretion. Appellant is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This, we will not do. “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.” (Myers, supra, 69 Cal.App.4th at p. 310, quoted with approval in Carmony, supra, 33 Cal.4th at p. 378.)
The record in this case affirmatively shows that the court understood its discretionary authority and that it weighed all of the competing facts to reach a reasoned and reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one or more of the strike priors. In view of these facts and circumstances, abuse of discretion has not been shown and reversal is not required. (See Carmony, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
STAY OF COUNT TWO
Appellant contends and respondent concedes the misdemeanor vandalism conviction, count two, must be stayed pursuant to section 654. The trial court ordered appellant to serve a concurrent six month term on count two. The parties concur, and so do we, that the burglary and vandalism allegations in counts one and two were pursuant to a single criminal objective and course of conduct. (People v. Britt (2004) 32 Cal.4th 944, 952; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Butler (1996) 43 Cal.App.4th 1224, 1248.) Accordingly, we will remand for the trial court to stay appellant’s misdemeanor sentence on count two pursuant to section 654.
DISPOSITION
The case is remanded for the trial court to stay appellant’s sentence on count two, misdemeanor vandalism, pursuant to section 654. The court shall prepare an amended clerk’s transcript and abstract of judgment reflecting this change and forward them to the appropriate authorities. The judgment is affirmed in all other respects.