Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. KA078290 Daniel J. Buckley, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Following a jury trial, defendant Anthony Daniel Garcia was convicted of grand theft of automobile (Pen. Code, § 487, subd. (d)(1); count 1), kidnapping (§ 207, subd. (a); count 2), resisting an executive officer (§ 69; count 5), and transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a); count 7). The trial court found true the allegations that defendant suffered two prior serious felony convictions (§§ 667, subds. (a), (b)-(i), 1170.12) and served a prior prison term (§ 667.5, subd. (b)). It sentenced defendant to state prison for an indeterminate term of 50 years to life plus a determinate term of 5 years. On appeal, the judgment was modified to reflect a conviction of unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) on count 1 and the matter was remanded for resentencing.
Defendant also is identified as Daniel Anthony Garcia
All further statutory references are to the Penal Code, unless otherwise specified.
On remand, the trial court deemed count 1 to be a felony and denied defendant’s Romero motion. The court denied probation and sentenced defendant to a total of 55 years to life, based on an indeterminate term of 25 years to life on count 2, plus a consecutive term of 25 years to life on count 5, and an additional five years pursuant to section 667, subdivision (a)(1). The court also imposed and stayed a third-strike sentence of 25 years to life on count 1, and imposed a concurrent term of six years (three years doubled as a second strike on conviction) on count 7. The court also imposed and ordered stricken one-year terms for each of the three prior prison term enhancements.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant contends the trial court abused its discretion in denying his Romero motion. We disagree and affirm the judgment.
The facts are set forth more fully in our prior opinion, People v. Garcia (Aug. 31, 2009, B206563) [nonpub. opn.].
On January 26, 2007, defendant was a passenger in a car that was stopped by Los Angeles County Sheriff’s Deputies. While the driver was outside the car being questioned, defendant moved into the driver’s seat and drove away as the deputies and the driver—whose daughter was in the back seat—yelled at him to stop.
Defendant led the deputies on a dangerous, high-speed chase. He eventually abandoned the car and ran away. The deputies were unable to find him but put out a bulletin containing his name and photograph.
Four days later, deputies observed defendant as a passenger in an SUV. When they tried to stop the SUV, it led them on a high-speed chase. During the chase, defendant threw bags containing methamphetamine, a gun and a glass pipe out of the SUV.
The SUV eventually slowed, defendant got out and ran into a dental clinic. He terrorized people inside and attempted to resist apprehension. The deputies eventually took him into custody.
DISCUSSION
When, as here, a defendant is sentenced under the “Three Strikes” law, the sentencing court retains the discretion under section 1385, subdivision (a), to strike the prior conviction(s) on its own motion in the interests of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 504, 529-530.) Because a decision to strike or not to strike prior convictions lies within the discretion of the trial court, we cannot reverse that decision except for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)
The abuse of discretion standard is a deferential one. (People v. Williams (1998) 17 Cal.4th 148, 162.) The question is whether the trial court’s action “‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (Ibid.) That is, whether the trial court’s action is one which would not have been taken by a reasonable judge (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531) or the trial court has acted “in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Franco (1994) 24 Cal.App.4th 1528, 1542-1543.)
Additionally, “‘[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.’ [Citation.] Concomitantly, ‘[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.]’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord, People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
In deciding whether to dismiss prior convictions under section 1385, subdivision (a), the trial court must consider the defendant’s background, the nature of his current offense and other individualized considerations (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531; People v. Dent (1995) 38 Cal.App.4th 1726, 1731), including all of the relevant factors, both aggravating and mitigating (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274; see People v. Jordan, supra, 42 Cal.3d at p. 318). It must determine whether, in light of the defendant’s present and past offenses, “and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] 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, supra, 17 Cal.4th at p. 161; accord, People v. Carmony, supra, 33 Cal.4th at p. 377.)
Defendant had an extensive criminal history as evidenced by the probation report that was before the court at the time of sentencing. In May 1996, he was convicted of three counts of burglary (§ 459), two counts of access card theft (§ 484g), and two counts of receiving stolen property (§ 496, subd. (a)), and he was sentenced to state prison for two years. On the same day, defendant was convicted of robbery (§ 211) in a separate case and sentenced to three years in state prison. In September 1998, defendant was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and received three years of formal probation. In December 1999, defendant was convicted of reckless driving (Veh. Code, § 23103, subd. (a)) and received two years of summary probation. In March 2001, defendant was convicted of possession of a firearm by a felon and sentenced to six years in state prison. Defendant’s probation in the possession case was revoked, and he was sentenced to two years in state prison.
At the first sentencing hearing, defendant asked the court to strike one of his prior convictions. Defense counsel thoroughly set forth the factors he believed warranted an exercise of discretion, including the fact that the priors were remote and defendant was 17 years old at the time. As to the kidnapping conviction in the instant case, he stated there was no showing of any awareness of a child in the car or of any violence. He noted that defendant would still receive a lengthy sentence for the crimes. The trial court responded: “The law is fairly clear that it’s a pretty high burden. And I’m just really troubled by the fact that, notwithstanding, you look at it as he was so young when he did these first two crimes. I look at it that he’s whatever age he is now, and he’s never gone a couple of years without being crime free. What I see is he’s told at a young age you better shape up or you’re in big trouble, ... but we’ll give you one more break. We’re not going to impose the third strike here and give you one more chance. Then he gets out, and he’s not out for a full year, and he’s—grand theft of an auto and throwing drugs out of a car and then resisting an officer. I don’t see how I can intellectually follow the law and strike the strike.”
In our previous opinion, we concluded that the trial court did not act arbitrarily and capriciously in refusing to strike one of defendant’s prior convictions. We stated the court considered the relevant factors and reached a conclusion based on those factors and the applicable law. (People v. Jordan, supra, 42 Cal.3d at p. 318; People v. Cluff (2001) 87 Cal.App.4th 991, 998.)
After the matter was remanded and defendant resentenced, he is once again asserting that the trial court abused its discretion in not striking a prior conviction. In defendant’s sentencing memorandum, he requested the court to impose midterm sentences, and to impose terms concurrent “where legally permissible.” There were also certificates obtained by defendant while in state prison, including for parenting skills, anger management and victim awareness. There was also a memorandum indicating that appellant was participating in Narcotics Anonymous and Alcoholics Anonymous.
At the resentencing, the trial court stated as follows: “I have a distinct memory of this case. I remember the facts of the trial. I remember the trauma that this caused on a number of people, not only the incidence of the taking the vehicle and kidnapping, but the subsequent acts as well that deal with some of the other counts. It’s a very significant sentencing, but I don’t believe what the Court of Appeal did in its analysis of one element of an instruction to intent changes what Mr. Garcia did that day and how he should be punished for it. As a result, the court will proceed with sentencing.”
Defendant contends that the trial court abused its discretion by declining to dismiss one of his two prior strike convictions so it could impose a lengthy determinate sentence. He argues that in weighing the totality of the circumstances behind the current convictions, the trial court had the obligation not only to consider the interests of the prosecution, but also to determine an individualized equitable sentence within the bounds of the Three Strikes Law.
In support of his contention, defendant relies on People v. Bishop (1997) 56 Cal.App.4th 1245, in which the court stated: “The length of sentence to be imposed also presents an open-ended inquiry because, when considered in conjunction with the defendant’s age, it presents the trial court with an opportunity to evaluate factors such as how long the state maintains an interest in keeping the defendant as a public charge and after what period of incarceration he is no longer likely to offend again.” (Id. at p. 1251.)
Defendant’s argument disregards the fact his qualifying strike convictions were for residential burglary and a robbery. Bishop is of little help to defendant because Bishop merely affirmed a trial court’s dismissal of strike priors. “A comparison of the cases is of little assistance to the defendant on appeal. The Bishop holding does not establish that had the trial court denied Bishop’s motion such a decision would have been arbitrary or irrational. [Citation.] Rather, the holding only establishes that the trial court did not abuse its discretion in striking the two prior felony convictions. [Citation.] [¶] The Court of Appeal in Bishop indicated that it might have denied Bishop’s motion had it been the trial court.” (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.)
Moreover, “since Bishop predates Williams, it did not apply [its] distinguishable facts to the applicable standard under [Williams]. Instead, the Bishop court merely suggested that the nature of the present crime (petty theft) and the remoteness of the defendant’s prior violent offenses may operate to mitigate his Three Strikes sentence. It never addressed the overall question whether the defendant should be deemed to fall outside the scheme’s spirit.” (People v. Strong (2001) 87 Cal.App.4th 328, 342.)
Here, the court could not overlook the failure of any prior rehabilitative efforts by defendant. He continued to commit criminal offenses over the course of numerous years even after serving time in state prison. Such conduct was clearly indicative of defendant’s prospects—his persistent unwillingness or inability to comply with the law. Indeed, defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) The trial court’s determination that defendant did not fall outside the purview of the Three Strikes law—and to the contrary, exemplified the need for the law—was well within its discretion.
We find defendant’s overall record and recidivism constituted a sufficiently compelling reason for the trial court to deny his Romero motion. (See People v. Strong, supra, 87 Cal.App.4th at p. 338 [“the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career”]; see also People v. Carmony, supra, 33 Cal.4th at p. 378 [“‘[w]here 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’”].)
The trial court clearly did not act “in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan, supra, 42 Cal.3d at p. 316.) In view of defendant’s recidivism and clear inability to conform his behavior to the requirements of the law, the trial court did not abuse its discretion in refusing to strike one of defendant’s prior convictions. (People v. Williams, supra, 17 Cal.4th at pp. 162-163; see, e.g., People v. Carmony, supra, 33 Cal.4th at pp. 378-379.)
Finally, we also reject defendant’s claim that the imposition of consecutive 25-years-to-life sentences resulted in a grossly excessive sentencing undermining federal fairness in violation of the federal constitutional right to due process under the Fourteenth Amendment. Courts have observed that recidivism in the form of the repeated commission of felonies poses a clear danger to society. It justifies the imposition of longer sentences for subsequent offenses. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) “The purpose of a recidivist statute... [is] to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” (Rummel v. Estelle (1980) 445 U.S. 263, 284-285 [100 S.Ct. 1133, 63 L.Ed.2d 382].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.