Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC896128
Duffy, J.
In August 2008, defendant Maurice William Hooker entered a plea of no contest to two felony counts, namely, inflicting corporal injury on his spouse, and inflicting corporal injury on a child, his stepdaughter. Defendant also admitted the allegations that he had (1) inflicted great bodily injury upon his spouse, (2) previously been both convicted of inflicting corporal injury on a child and had not remained free of both prison custody and felony convictions for 10 years, (3) previously been convicted of a serious felony, robbery, and (4) previously been convicted of five felony “strikes” (i.e., five counts of robbery). He thereafter brought a motion to strike the prior strike allegations, in accordance with People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), which was opposed by the People. The court denied the Romero motion and sentenced defendant to an indeterminate term of 50 years to life in prison, consecutive to a determinate term of 13 years.
Defendant argues on appeal that the trial court erred in denying his Romero motion. We conclude that the court did not abuse its discretion and therefore affirm.
Our summaries in the sections captioned “Facts,” “The Prior Strikes,” and “The Prior Convictions Under Section 273d” are taken from testimony given at the preliminary hearing and information contained in the probation officer’s report.
In February 2008, defendant lived in San Jose with his wife, Cynthia, their three children, Cynthia’s 17-year-old daughter by a prior marriage, Destiny, and Cynthia’s father, Fred. On the evening of February 13, defendant was in the garage drinking with a friend. He came inside the house and started yelling at Fred. Cynthia then came downstairs to try to break up the argument. (Defendant is about six feet tall and weighs approximately 330 pounds.) Defendant began striking Cynthia in the face with an open hand. Cynthia fell to the kitchen floor and was crying. Destiny—who had been in her bedroom and had heard the argument and defendant striking her mother—went out of her room to see if her mother was all right. As Destiny walked toward the kitchen to help her mother get off the floor, defendant told her to go back to her room. Destiny refused and continued walking toward the kitchen. Defendant approached Destiny and she walked backwards. She got into an argument with defendant while she was in the doorway of her room. She told him that she was going to help her mother; she “started yelling and cussing[,] saying that [she] was... tired of all the ‘BS’ and... all this drama.” Defendant began hitting Destiny. After hitting her a few times in the face and in the chest, she fell to the floor. ~(1CT 17 [Destiny])~ Defendant kicked Destiny about three times while she lay on the floor.
Cynthia went to Destiny’s room. After Destiny had gotten back on her feet, her mother was standing between her and defendant. Defendant struck his wife in the face, causing her to fall back into Destiny. Destiny fell back into a glass picture hanging on the wall; she struck it with the back of her head, breaking the glass. Cynthia hit her head on the corner of a wooden shelf and blacked out for a moment. Destiny saw that her mother “was bleeding really badly.” Destiny tried to get up to help her mother off the floor, but defendant kept pushing her down. Cynthia faded in and out of consciousness. After Destiny cleaned up the broken glass and some of the blood in the house, she packed a few belongings and went over to a friend’s house to spend the night. Before she left, defendant made several threats that he was going to kill her.
The next day, Destiny went to the hospital to “make sure nothing was broken.” As a result of defendant’s assault, she had a cut lip, a baseball-sized knot on the back of her head, and bruises on her shoulder, inner thigh, and forearm. Also on the day after the incident, Cynthia was taken to the hospital. She was diagnosed as having had a concussion and a broken nose. After several days, Cynthia’s right eye was swollen shut.
About four days after the incident, defendant told his wife that she had injured herself that night by falling down the stairs. Cynthia testified at the preliminary hearing that she told defendant that she believed that he had struck her; however, she did not recall the events of February 13 after she interceded in the argument between defendant and her father.
Cynthia testified at the preliminary hearing that defendant had struck her on several prior occasions, including once in 2002 that resulted in her sustaining a broken nose.
THE PRIOR STRIKES
In June 1992, defendant committed five robberies at gunpoint, three involving bank tellers, one involving a gas station attendant, and one robbery for which the circumstances are not disclosed in the record. Defendant claimed that the weapon was a toy gun. In August 1992, defendant was convicted of five counts of robbery (Pen. Code, §§ 211/212.5, subd. (b)) and was sentenced to seven years in prison.
All further statutory references are to the Penal Code unless otherwise stated.
THE PRIOR CONVICTIONS UNDER SECTION 273d
In May 1999, Destiny (age nine at the time) arrived home a few minutes late from school. She and defendant got into an argument, and he hit her in the face because he thought that she was lying. As a result of the incident, in July 1999, defendant was placed on four years’ probation for a violation of section 273d, subdivision (a).
In December 2003, defendant was again convicted of violating section 273d, subdivision (a), and was sentenced to four years in prison. The conviction arose out of an incident in which defendant disciplined his 11-year-old daughter by striking her numerous times with a belt. As a result, the child sustained bruises on both legs, her left arm and left chest; she also received a welt on her left wrist.
PROCEDURAL BACKGROUND
Defendant was charged by information filed on May 16, 2008, with inflicting corporal injury on his spouse (§ 273.5, subd. (a)), and inflicting corporal injury on a child (§ 273d, subd. (a)). As to the first count, the information contained the allegation that defendant had personally inflicted great bodily injury upon his spouse (§ 12022.7, subd. (e)). The information contained the further allegation as to the second count that defendant had been previously convicted of inflicting corporal injury on a child and had not remained free of both prison custody and the commission of an offense resulting in a felony conviction for a period of 10 years (§ 273d, subd. (b)). It was also alleged that defendant was previously convicted of a serious felony, robbery, within the meaning of sections 667, subdivision (a) and 1192.7. The information contained the allegation that defendant had previously been convicted of inflicting corporal injury upon a child under section 273d, subdivision (a), had served a prison term, and since serving that term, had not remained free of both prison custody and the commission of an offense resulting in a felony conviction for a period of five years (§ 667.5, subd. (b)). Finally, the information contained allegations that defendant had suffered five prior felony convictions (robbery; §§ 211/212.5) that constituted violent or serious felonies, or strikes (§§ 667, subds. (b) - (i)/1170.12).
On August 26, 2008, defendant entered an unconditional plea of no contest to both counts and admitted all of the allegations in the information. Before accepting the plea, the court apprised defendant fully of the rights he was giving up as a result of his no-contest plea and concerning the consequences of that plea. Counsel stipulated that there was a factual basis for the plea.
Defendant thereafter made a motion to have the court exercise its discretion to strike each of the prior strike allegations, in accordance with Romero, supra, 13 Cal.4th 497, which was opposed by the People. After hearing argument, the court denied defendant’s Romero motion. It imposed an indeterminate prison sentence of 50 years to life, consecutive to 13 years. Defendant filed a timely notice of appeal based on the sentence or other matters occurring after the plea.
The sentence was based upon an indeterminate term of 25 years to life in prison for count 1, a consecutive indeterminate sentence of 25 years to life in prison for the count 2 conviction, consecutive determinate terms of four years for the infliction of great bodily harm enhancement (§ 12022.7, subd. (e)), five years for the enhancement under section 667, subdivision (a), and four years for the enhancement under section 273d, subdivision (b). The court struck the punishment under section 667.5, subdivision (b), in the interests of justice.
DISCUSSION
I. Denial of Romero Motion
A. Applicable Law
The Supreme Court held in Romero that the trial court is empowered under section 1385, subdivision (a) on its own motion to dismiss or strike prior felony conviction allegations in cases that are brought under the law known as the “Three Strikes” law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The court’s discretion, however, is limited to instances in which dismissing such strikes is in the furtherance of justice, as determined by giving “ ‘ “consideration both of the constitutional rights of the defendant, and the interests of society represented by the People....” ’ ” (Id. at p. 530.) Thus, the court may not strike a sentencing allegation “solely ‘to accommodate judicial convenience or because of court congestion[’ citation, or] simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant's background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ [Citation.]” (Id. at p. 531.)
The Supreme Court later explained further “the ‘concept’ of ‘furtherance of justice’ within the meaning of Penal Code section 1385[, subdivision] (a) [which Romero had recognized as being] ‘ “amorphous.” ’ [Citation.]” (People v. Williams (1998) 17 Cal.4th 148, 159 (Williams).) The high court noted that in deciding whether to dismiss a strike “ ‘in furtherance of justice’ pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question 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, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.) The sentence to be meted out to the defendant “is also a relevant consideration... in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. [Citation.]” (People v. Garcia (1999) 20 Cal.4th 490, 500.) Furthermore, the court may give “no weight whatsoever... to factors extrinsic to the [Three Strikes] scheme.” (Williams, supra, at p. 161.) If the court strikes or dismisses one or more prior conviction allegations, its reasons for doing so must be stated in an order entered on the minutes. (Ibid.; cf In re Large (2007) 41 Cal.4th 538, 546, fn. 6 [trial court has no obligation to set forth reasons for decision not to strike or dismiss prior strikes].)
As the court explained in Williams, the granting of a Romero motion is “subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts. [Citations.]” (Williams, supra, 17 Cal.4th at p. 162; see also People v. Garcia, supra, 20 Cal.4th at p. 503.) And this abuse of discretion standard also applies to appellate review of the denial of Romero motions. (People v. Carmony (2004) 33 Cal.4th 367, 374-376; see also id. at p. 374: “ ‘Discretion is the power to make the decision, one way or the other.’ ”) It is the defendant’s burden as the party attacking the sentencing decision to show that it was arbitrary or irrational, and, absent such showing, there is a presumption that the court “ ‘ “acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.]” (Id. at p. 377.)
B. Defendant’s Romero Motion
A formal Romero motion was filed on behalf of defendant. Counsel for defendant argued that the Romero motion should be granted because (1) he accepted responsibility for his actions by pleading no contest to the charges and by admitting the strike priors; (2) he expressed remorse for his conduct; (3) the strike priors were remote in time, each having occurred approximately 16 years earlier; (4) there were extenuating circumstances with respect to the strike priors in that they occurred shortly after he had returned from active duty in the Gulf War and arose out of his having learned that he had become destitute after funds he deposited were inexplicably withdrawn from the bank on the same day, a circumstance he later learned was the result of his first wife having “cleaned out his bank account and [having run] off to New York with her new boyfriend”; (5) he successfully completed formal probation arising out of his 1999 misdemeanor conviction; (6) his prospects for employment following incarceration were good because of his work ethic, past job experience, and his status as a licensed commercial truck driver; and (7) the probation officer noted in her report that the favorable criteria affecting probation outweigh the unfavorable criteria.
In opposing the motion, the People argued that striking the prior strike convictions would itself constitute an abuse of discretion by the trial court. The opposition emphasized that, with respect to the current offenses, “defendant acted in an extremely abusive and violent manner toward[s] his wife and a 17-year-old [whom] he helped raise.” He did not accept full responsibility for his actions, explaining to “the probation officer that he ‘tried to leave the situation, however they would not let him leave.’ ” The People also noted the seriousness of the strike priors—five armed robberies—and argued that, in light of his history of violence towards his wife, stepdaughter, and daughter, defendant’s prospects for the future were not good.
The People attached as exhibits to its Romero opposition a number of confidential documents, including reports from probation officers concerning the current and prior offenses, medical records pertaining to the victim spouse, and medical records pertaining to the victim child. On our own motion on November 12, 2009, we ordered that the clerk of this court file under seal these confidential records found in the clerk’s transcript.
C. Discussion Regarding Denial of Romero Motion
In arguing that the court abused its discretion in denying his Romero motion, defendant concedes that “[t]he present offenses were undeniably reprehensible.” He again notes that he accepted responsibility for his actions by unconditionally pleading no contest to both counts and admitting the special allegations. Defendant asserts that there were extenuating circumstances resulting from the series of armed robberies in 1991—that they occurred after he had just returned home from active service and had discovered that money he had deposited in the bank had inexplicably been withdrawn the same day, that no one was injured in any of the robberies, and that he used a toy gun to accomplish them. Additionally, defendant points out that defendant’s “family was by his side [at sentencing], evidencing their recognition of his good qualities and his redeemability.” Defendant in the past successfully completed domestic violence counseling and parenting counseling, thus showing “both an understanding that he has a problem with anger and an effort to improve.” Under these circumstances, defendant argues that he “falls outside the intent of the Three Strikes Law to imprison the worst offenders for life.”
In emphasizing the positive, however, defendant either ignores or minimizes aspects relevant to the decision on the Romero motion that were unfavorable to him. The current offenses, as defendant concedes, were “reprehensible.” They involved violent assaults on both his wife and his 17-year-old stepdaughter. The high level of violence was evidenced by the significant injuries incurred by both victims—including Cynthia’s concussion, broken nose, and an eye that was swollen shut, and Destiny’s multiple bruises and large knot on the back of her head. Additionally, the prior felony conviction of inflicting corporal injury on a child (§ 273d, subd. (a)) involved a child victim (defendant’s daughter) separate from the two victims in the present offenses. The court noted these circumstances as a partial basis for denial of the Romero motion. In addition, it observed that after inflicting these serious injuries on his family members, defendant made no effort to obtain medical treatment for his victims.
As the court also observed, defendant committed the current offenses against separate victims within several years of having served a prison term for inflicting corporal injury on a child. Further, the court considered as a factor weighing against the granting of the Romero motion the fact that in 2003, the court showed leniency toward defendant in sentencing him for felony infliction of corporal injury on his daughter by striking four of the strike priors, thereby giving defendant the opportunity to rehabilitate himself. The court found that a review of the circumstances showed that “defendant’s violent conduct appears to be escalating in terms of seriousness.”
Additionally, the prior strikes involved armed robberies committed upon bank tellers and a service station operator, hardly trivial offenses. The prior crimes constituted both violent (§ 667.5, subd. (c)(9)) and serious (§ 1192.7, subd. (c)(19)) strike felonies. Defendant’s record showed that he had a total of nine felony convictions and 17 misdemeanor convictions. The latest conviction before the current offenses occurred in 2003 and involved the felony conviction of corporal injury inflicted on his daughter.
Placing in context the circumstances under which a court properly exercises its discretion in granting a Romero motion, as the Supreme Court has explained, “[T]he [T]hree [S]trikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances.” (Carmony, supra, 33 Cal.4th at p. 378.) Therefore, “[b]ecause the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
In this case, the circumstances evaluated by the trial court leading to its conclusion that defendant did not fall outside of the Three Strikes sentencing scheme—including defendant’s prospects, the specifics and violent nature of the current offenses, the nature of the prior strike offenses, and the evidence that the current offenses reflected an escalation of violence perpetrated by defendant—were not “extraordinary”; they did not justify the conclusion that defendant should be “ ‘deemed to fall outside the spirit of the very [Three Strikes] scheme within which he squarely falls.’ ” (Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, the court’s decision did not “ ‘fall[] outside the bounds of reason’ under the applicable law and the relevant facts. [Citations.]” (Williams, supra, 17 Cal.4th at p. 162.) Therefore, we find that the court did not abuse its discretion in denying defendant’s Romero motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.