Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Nos. SCD211150 & SCD220246 Frank A. Brown, Judge.
BENKE, Acting P. J.
In case No. SCD211150, Jose L. Gordon was found guilty in a bench trial of resisting an executive officer (Pen. Code, § 69). In case No. SCD220246, Gordon was found guilty in a bench trial of assault with a deadly weapon on a peace officer (§ 245, subd. (c)) (count 1), evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)) (count 2), unlawful driving and taking a vehicle (Veh. Code, § 10851, subd. (a)) (count 3) and three misdemeanors: hit and run driving (Veh. Code, § 20002, subd. (a)) (count 4), resisting an officer (§ 148, subd. (a)(1)) (count 5) and possession of tear gas by a felon (§§ 12403.7, subd. (a), 12420) (count 6). The court found that Gordon committed the offenses in counts 1, 2 and 3 while he was out of custody on bail (§ 12022.1, subd. (b)) and personally used a deadly weapon on a peace officer in the commission of the count 1 crime. In both cases, Gordon admitted a strike (§ 667, subds. (b)-(i)), a serious felony prior conviction (§ 667, subd. (a)(1)) and a prior prison term (§ 667.5, subd. (b)). The court denied Gordon's request to dismiss the strike and sentenced him to 14 years 4 months in prison: eight years (twice the middle term) for assault with a deadly weapon on a peace officer, concurrent four-year terms (twice the middle term) for evading an officer and unlawful driving and taking a vehicle, stayed terms for the bail enhancement, a consecutive term of one year four months (one-third the middle term, doubled) for resisting an executive officer, five years for the serious felony prior and credit for time served on the misdemeanors. Gordon appeals, contending the court abused its discretion and denied him due process by denying his "Romero motion" to dismiss the strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497). We affirm.
Further statutory references are to the Penal Code unless otherwise specified.
At sentencing the court did not mention the prior prison term. We remand so that the court can exercise its discretion to impose sentence on or strike the prison prior. (People v. Campbell (1999) 76 Cal.App.4th 305, 311.)
BACKGROUND
Case No. SCD211150
In January 2008, the day after an assault and robbery, police officers saw a trail of blood leading to a house in the area of the crime. A car was double-parked in front of the house. The officers saw Gordon leave the house and get into the passenger side of the car. He fit the description of the suspect in the assault and robbery. After the car drove away and ran a stop sign, the officers conducted a traffic stop. When the car pulled over, Gordon got out and ran away. After a foot chase, one of the officers tackled Gordon, who struggled and tried to escape. The other officer jumped on Gordon and the officers eventually brought him under control. One of the officers suffered a severe laceration on his elbow, resulting in stitches and five missed days of work.
Case No. SCD220246
In March 2009, while Gordon was on parole, a police officer searched him and found a canister of tear gas on his person.
In April 2009 a police officer saw Gordon driving a sport utility vehicle (SUV) the wrong way on a one-way street. The officer pursued the SUV and it eventually stopped. As the officer was about to get out of his patrol car, Gordon put the SUV in reverse and rammed the patrol car, moving it four or five feet and jolting the officer back in his seat. The bumper of the patrol car was pushed back and broken, although it was designed to push disabled vehicles and withstand substantial pressure. The officer had never seen such a bumper sustain that degree of damage.
Gordon sped off in the SUV with the officer in pursuit. During the chase Gordon ran stop signs and turned without signaling. He drove the wrong way on another one-way street and collided with a pickup truck in an intersection. Gordon did not stop after the collision. He continued driving the wrong way, then got out of the SUV and let it crash into a wall. Gordon ran away. Another officer arrived and captured him. At trial, Gordon stipulated the SUV was stolen.
The Strike
Gordon's strike was based on a 1999 conviction of assault on a peace officer with personal infliction of great bodily injury (§ 12022.7). The offense occurred when he was 19 years old and housed at the California Youth Authority. At sentencing in the instant case, Gordon asked the court to dismiss the strike. He argued the strike was remote in time and the offense in case No. SCD220246 was "basically, a traffic collision" in which the police officer suffered no injury. The court denied the Romero motion, noting that Gordon had an extensive criminal history beginning in 1992, when he was a juvenile; his "consistently criminal behaviors" continued into his adult years; and he was on parole when he committed the offense in case No. SCD211150.
It is unclear from the record whether personal infliction of great bodily injury enhancement was pursuant to subdivision (a) or subdivision (b) of section 12022.7.
DISCUSSION
There is a "legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law." (People v. Carmony (2004) 33 Cal.4th 367, 376.) Only extraordinary circumstances justify departure from this presumption. (Id. at p. 378.) The question is " '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.' " [Citation.] (Id. at p. 377.) We review the trial court's denial of a Romero motion for abuse of discretion. (Id. at p. 376.)
Gordon did not lead a legally blameless life in the fewer than 10 years between the strike offense and the offense in case No. SCD220246. During that time he accumulated three parole violations, a misdemeanor conviction and the felony conviction in case No. SCD211150, which constituted a fourth parole violation. Thus, the trial court properly rejected Gordon's remoteness argument. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Gordon characterizes his crime in case No. SCD220246 as "essentially a traffic accident at low speed, which did not injure the officer." This is consistent with Gordon's statement to the probation officer that he did not intend to back the SUV into the patrol car. In 1999, Gordon made a similar statement to the probation officer regarding his strike offense. Gordon said he did not believe that the officer/victim in that case suffered any permanent damage because he did not appear to be injured when he testified.
Respondent claims that Gordon has forfeited his right to make this argument because he did not do so below. Gordon made the argument both orally at sentencing and in his statement in mitigation which contained the Romero motion. Contrary to Respondent's claim, the statement in mitigation is part of the appellate record.
Gordon's attempt to minimize his crimes is unavailing. His conviction of assault on an officer in case No. SCD220246 is a serious felony. (§ 1192.7, subd. (c)(31).) Gordon's commission of two separate assaults on officers, approximately 10 years apart, supports the trial court's conclusion that his was not an extraordinary case warranting a departure from strike sentencing. Gordon's juvenile delinquency history began when he was only 12 years old and was marked by violence. Throughout his minority he continued to offend and minimize his offenses. His adult criminal record is a continuation of this pattern. The court did not abuse its discretion by declining to dismiss the strike.
DISPOSITION
The case is remanded to the trial court for an exercise of its discretion to impose sentence on or strike the prison prior. The court shall then amend the abstract of judgment accordingly and forward the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
WE CONCUR: HUFFMAN, J., IRION, J.