Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. BA297436 Anne H. Egerton, Judge.
Ava R. Stralla, 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, Steven D. Matthews and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
FACTS AND PROCEDURAL HISTORY
On the night of January 25, 2006, Louis Edward Gibson trapped his former girlfriend in her home and tortured her. While under the influence of alcohol and crack cocaine, he abused her the entire night. He beat her, cut her ankle tendon, ordered her to smoke crack cocaine, and forced her to orally copulate him.
After being found guilty of forcible oral copulation and assault with a deadly weapon, he was sentenced to a total of 19 years. He received a midterm three-year sentence for assault with a deadly weapon and an additional two years for forcible oral copulation (one-third of the midterm), imposed consecutively. This five-year sentence was doubled under the “Three Strikes” law and two enhancements were added to it: five years pursuant to Penal Code section 667, subdivision (a)(1) and four years for inflicting great bodily injury under circumstances involving domestic violence. Appellant asked the trial court to dismiss his previous strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court denied this motion due to the seriousness of his current crime and his criminal history. He appeals from that ruling.
DISCUSSION
Appellant contends his 12-year-old strike should be dismissed because of the strike’s age, and his current offense was drug induced and out of character. We review the trial court’s refusal to dismiss appellant’s strike for abuse of discretion (Romero, supra,13 Cal.4th 497). “[I]n reviewing such a ruling [we] 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We begin by looking at appellant’s current crime, one that was both violent and cruel. He subjected his ex-girlfriend to a long night of torture that left her with serious physical and emotional injuries. Her physical injuries have left her incapable of walking without a brace, and she fears that she may lose her foot altogether. Furthermore, her emotional injuries have left her incapable of engaging in romantic relations with a man or trusting anyone at all.
The particulars of appellant’s background, character, and prospects also provide little support for his motion. Although his first strike, a 1994 conviction for felony attempted robbery, occurred more than a decade ago, his behavior since then has been less than exemplary. Only three years after being released from prison for attempted robbery, he was arrested for selling cocaine. He served a six-year sentence for that crime and then, shortly after being released, was again convicted of possessing narcotics. In fact, since receiving his first strike, he has spent more time incarcerated than free. Similarly, his background before his first strike also fails to support his motion. Prior to his first strike, he received multiple convictions for battery, drug possession, burglary, and other crimes.
Appellant attributes his entire criminal history to longstanding drug addiction and has expressed significant remorse. He claims that his actions were out of character and caused by his addiction to drugs. In support, he cites his ex-girlfriend’s testimony that he was generally a kind and supportive boyfriend, she viewed the assault as general rather than sexual in nature, and she believed he would be better served by treatment than by a long prison sentence. However, we observe that she later claimed that her testimony had been coerced by his apparent suicide threats and made it clear that she wanted him to be incarcerated.
In short, appellant has failed to show that the trial court abused its discretion. His current felony was particularly cruel and, although his previous strike is more than a decade old, he has continued to demonstrate a pattern of criminal behavior. The trial court therefore acted within its discretion in finding appellant did not fall outside the spirit of the Three Strikes law.
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., BIGELOW, J.