Opinion
F063681
05-01-2013
THE PEOPLE, Plaintiff and Respondent, v. CURTIS PAUL HIGHTOWER, Defendant and Appellant.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. VCF247094)
OPINION
THE COURT
Before Levy, Acting P.J., Kane, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On September 8, 2011, appellant, Curtis Paul Hightower, was found guilty at the conclusion of a jury trial of second degree commercial burglary (Pen. Code, § 459, count 1), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 2), and misdemeanor possession of burglar's tools (§ 466, count 4). The jury found appellant not guilty of count 3, receiving a stolen vehicle (§ 496d, subd. (a)). In a bifurcated proceeding, appellant waived his right to a jury and the trial court found true allegations that appellant had three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and three prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise indicated, all statutory references are to the Penal Code.
Appellant's qualifying prior serious felony convictions were two convictions for grand theft of a firearm (§ 487, subd. (d)(2), a serious felony under § 1192.7, subd. (c)(26)), and for attempted first degree burglary (§§ 664 & 459, a serious felony under § 1192.7, subds. (c)(18) and (c)(39)).
Prior to the sentencing hearing, appellant filed a request that the trial court strike the prior serious felony convictions pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).
On October 19, 2011, the trial court denied appellant's request to strike the allegations pursuant to Romero. The court sentenced appellant to a term of 25 years to life pursuant to the three strikes law for second degree burglary and to a concurrent sentence of 25 years to life for taking a vehicle. The court struck the prior prison term enhancements in the interest of justice. The court imposed a $1,000 restitution fine and granted appellant 417 days of custody credits.
Appellant contends the trial court abused its discretion in denying his Romero request and that his sentence constituted cruel and unusual punishment. We disagree and affirm the judgment.
FACTS
On January 13, 2011, Randall Burke exited his house and found his light gold Toyota Camry missing from his driveway. Burke had not given anyone permission to take his car. Burke had locked the car the previous day and had given the keys to his son to find something in his car. Burke could not find his car keys. Burke believed that his son may have left the key in the car door.
On the morning of January 13, 2011, Mehdi Huda and Danish Khakoo were working at Prince's Superette, a gas station and convenience store in Visalia. Between 11 a.m. and noon, appellant entered the store and asked for adult movies. Huda pulled out a box of DVDs and placed them on the counter for appellant. After sorting through the DVDs, appellant grabbed five or six of them and ran out of the store.
Khakoo chased appellant but did not catch him. Khakoo identified appellant in a field identification that afternoon and testified that appellant was the person who stole the DVDs.
Huda got into his car to look for appellant. Huda saw a gold Toyota Camry parked in an odd place, like a red zone, and took down the license plate number. Huda then saw the appellant enter the car and drive away. Appellant took an unusual turn as he left the scene and nearly hit another car.
Just before 1 p.m. that afternoon, Barbara Raibley, the owner of a tax service, learned that an unidentified car was parked in the back parking lot of her business. Raibley reported the vehicle description and license plate number to the police. Raibley viewed a surveillance videotape from a parking lot camera and saw that the car had been left by a male carrying a backpack. The police determined that the car was Burke's stolen Camry.
Sergeant Corey Sumpter began searching the area for someone who matched appellant's description. Sumpter stopped appellant, who was carrying a backpack, as appellant was leaving a nearby apartment complex. Sumpter found the stolen Camry key belonging to Burke in appellant's sweatshirt. Sumpter searched inside appellant's backpack and found a plastic DVD case containing six adult DVDs, some shaved Honda master keys used to open doors and start ignitions, latex gloves, and mail addressed to appellant.
Khakoo was brought to the scene for a field identification and he identified appellant as the DVD thief. Appellant was arrested.
A defense investigator tried to show Huda a photographic lineup, but Huda told the investigator that he did not see appellant long enough to identify him. According to the investigator, Khakoo also was unable to identify anyone in the photographic lineup as the DVD thief.
Appellant testified that he either took the bus or walked on the day of his arrest. Appellant stated that he had not been in Prince's Superette the morning of the theft. Appellant said he found the keys to the Camry on the ground while walking around. Appellant received the shaved keys and the DVDs from a friend. Appellant admitted he had prior felony convictions and was on parole at the time of his arrest.
Romero Hearing
Appellant's criminal record began in 1998 when appellant committed a petty theft as a juvenile. Between 2001 and 2008, appellant had felony convictions for attempted first degree burglary, second degree burglary, two convictions for grand theft of a firearm, being a felon in possession of a firearm and ammunition, and two convictions for petty theft with a prior qualifying conviction. Appellant also had seven misdemeanor convictions.
The court declined to grant appellant's Romero request, finding that appellant was a career criminal who began his encounters with the law in juvenile drug court and was given many chances to reform.
ROMERO DISCRETION
Appellant contends the trial court abused its discretion in failing to strike his prior serious felony convictions pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. We disagree.
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.) The 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).)
Defense counsel made a written request pursuant to Romero and also argued at the sentencing hearing for the application of Romero because none of appellant's prior convictions were violent offenses and his current felonies also were not serious or violent offenses. The trial court was well aware of its discretion to strike the prior serious felony convictions pursuant to Romero, but declined to do so, noting appellant's long criminal history and his inability to reform himself. Appellant also had seven misdemeanor convictions.
Appellant is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. We decline his invitation to do so. "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 shows that the trial court understood its discretionary authority and it weighed all of the competing facts to reach a 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 prior serious felony convictions. In view of these facts and circumstances, appellant has failed to show abuse of discretion. (See Carmony, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
CRUEL AND UNUSUAL PUNISHMENT
Appellant further argues that the evidence against him was less than overwhelming and it was cruel and unusual punishment for the trial court not to strike his prior serious felony convictions. We again find appellant's argument unpersuasive.
The trial court noted that appellant had a lengthy criminal record. Also, appellant admitted at trial that he was on parole when he committed the instant offenses. Appellant is arguing that his sentence is disproportionate to the seriousness of his offense. The trial court properly looked at the gravity of the present offense, but also to appellant's long history of recidivism and violation of parole.
It is defendant's recidivism, in combination with his current crime, that brings him within the three strikes law. (People v. Ayon (1996) 46 Cal.App.4th 385, 400 [disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10].) Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare defendant's punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) We find that appellant has failed to show that his sentence was cruel or unusual punishment.
On April 5, 2013, we denied appellant's motion to file supplemental briefing on the argument that changes to the three strikes law recently enacted by the voters on November 6, 2012, apply retroactively. In People v. Yearwood (2013) 213 Cal.App.4th 161, 167-179, we held that these changes do not act retroactively, only prospectively. We note, however, that appellant's current felony convictions are not serious or violent felonies under sections 1192.7, subdivision (c) and 667.5, subdivision (c). Our opinion is therefore issued without prejudice to appellant to pursue any remedies he may have before the trial court pursuant to section 1170.126.
DISPOSITION
The judgment is affirmed.