Opinion
F073375
02-15-2018
THE PEOPLE, Plaintiff and Respondent, v. BOBBY DAN JACKSON, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LF010742A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
On August 23, 2015, defendant Bobby Dan Jackson used threats of violence to keep two victims inside a vehicle in Kern County. A jury acquitted him of two counts of kidnapping for ransom (Pen. Code, § 209, subd. (a); counts 1 & 2) and two counts of kidnapping (§ 207, subd. (a); counts 3 & 4), but found him guilty in these four counts of the lesser included offense of false imprisonment (§ 237). He was also found guilty of making a criminal threat (§ 422; count 7). The jury acquitted him of two counts of robbery (§ 212.5, subd. (c); counts 5 & 6) and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 8).
All future statutory references are to the Penal Code unless otherwise noted.
The trial court found prior conviction allegations to be true. The court denied defendant's Romero motion to strike a 14-year-old prior conviction. Defendant was sentenced to an aggregate prison term of 12 years 4 months.
People v. Romero (1996) 13 Cal.4th 497 (Romero).
On appeal, defendant argues the trial court abused its discretion in permitting evidence regarding his alleged prior bad acts. He also raises a claim of instructional error. Finally, he contends the court abused its discretion in denying his Romero motion. We affirm.
BACKGROUND
Synopsis of the Relevant Trial Evidence
Following the prosecution's case-in-chief, defendant elected not to present any evidence. The following is a relevant synopsis of the trial facts generally viewed in the light most favorable to the verdicts.
A. Defendant Threatens Jordan H.
The prosecution's case against defendant was based principally on the testimony of four witnesses: (1) the male victim, Jordan H.; (2) the female victim, Kirsten H.; (3) defendant's accomplice in this crime, Jeremy Reyes; and Reyes's girlfriend at the time, Alexzandra Sandoval. Despite some inconsistencies, their collective testimony established the following facts.
Reyes testified while in custody with the California Department of Corrections and Rehabilitation. He was serving a prison sentence for kidnapping stemming from this incident. The parties stipulated that, prior to this incident, Reyes was a convicted felon.
Sandoval testified while in custody in county jail for unrelated charges. She had been previously convicted of felony drug charges.
On August 23, 2015, Jordan and his girlfriend, Kirsten, lived together, and they both knew Sandoval. That day, Sandoval picked them up in her two-door hatchback under the pretense they would all go together to purchase heroin at a friend's house. Kirsten rode in the front passenger seat and Jordan sat in the back. Instead of driving them to purchase drugs, Sandoval drove them a short distance to a street where defendant and Reyes were waiting on the sidewalk. Sandoval was dating Reyes at that time.
Sandoval stopped her vehicle near defendant and Reyes. At trial, Jordan testified that he believed he had been "walked into a trap." About a year before this incident, defendant and his friends had "jumped" Jordan, hurting him "pretty bad." In the week leading up to this present crime, defendant had come by Jordan's residence often in an effort to speak with Cecilia P., who was Jordan's best friend but also dating defendant. On the morning of this incident, Jordan's grandmother had spotted defendant at Jordan's residence. She had told him to leave. Defendant eventually walked away but, as he left, he turned around and pointed at her. Defendant had stated, "[I]t's on now. It's on."
After Sandoval pulled over, defendant demanded that Jordan pay him $200. He claimed the money was owed as a "tax" because a mutual friend had overdosed on drugs several days before at Jordan's residence. Defendant held a bottle by its neck like he was going to hit someone with it. Reyes had a gun tucked in his waistband. Defendant said he wanted the $200 immediately. Defendant also asked Jordan about Cecilia's whereabouts.
B. Jordan and Kirsten Are Driven Away
Both defendant and Reyes got into Sandoval's vehicle; they sat in the back with Jordan between them. Defendant told Jordan to not "be a hero or anything, there's not going to be warning shots." Defendant told Sandoval to drive away. At trial, both Jordan and Kirsten testified they did not owe defendant any money, and they both felt trapped.
While in the vehicle, defendant told Jordan that, if Jordan did not come up with the $200, he was going to take Kirsten over "to Union and try to pimp her out." Jordan testified he believed defendant's threat was credible because "friends" had previously told him "about different girls that [defendant had] kidnapped and taken to Bakersfield."
While in Sandoval's vehicle, defendant took away Jordan's cell phone. Using defendant's cell phone, which defendant handed him, Jordan texted his mother, asking for the $200. When Jordan sent this text, Reyes had his gun pointed at Jordan. Jordan was afraid. Jordan's mother responded that she did not have the money.
C. Defendant Takes Everyone to Two Residences
Defendant told Sandoval to drive to two residences in Taft. The first residence belonged to Joshua Hutchins. Outside Hutchins's residence, everyone stayed in Sandoval's vehicle and Hutchins came over to speak with defendant. Defendant asked Hutchins if he had any heroin, which Hutchins did not. During this conversation, Sandoval noticed Hutchins was wearing a sweater, which she believed belonged to her. She got out of her vehicle for a "couple of seconds" and "took it off him." After getting back in her vehicle, defendant told Sandoval to drive across the street to another residence.
Kirsten asked if she could go home, and defendant either told her "no" or ignored her. Jordan continued to feel scared because the gun was still pointed at him. He did not feel free to leave. Outside the second residence, defendant told Kirsten to get out of the car. Defendant believed Cecilia was inside this house. Defendant directed Kirsten to exit Sandoval's vehicle, knock on the door, and have Cecilia come outside.
D. Cecilia and Kirsten Call 911
Kirsten went to the front door and spoke with Cecilia, telling her defendant was in the vehicle. Cecilia told Kirsten to come inside, and they shut and locked the front door. Cecilia called 911. At some point, Kirsten also spoke with a 911 dispatcher. At trial, the prosecution played a recording of Kirsten's 911 call. With the dispatcher, Kirsten identified herself as Cecilia, and she asked for law enforcement to respond, claiming defendant had violated a restraining order against Cecilia. Kirsten, posing as Cecilia, claimed defendant was threatening to hit Jordan with a bottle if defendant did not receive $200. She said Sandoval had "set them up" and Jordan was in Sandoval's vehicle with defendant and Reyes. Kirsten gave a description of Sandoval's vehicle. At trial, Kirsten explained she had posed as Cecilia because the dispatcher had not understood the "kidnapping thing" when Cecilia had explained it, and Kirsten believed Cecilia had a restraining order against defendant.
Inside Sandoval's vehicle, defendant became mad when Kirsten went inside the residence with Cecilia. Defendant asked Reyes if he had his gun, saying "let's go get her." Defendant and Reyes walked to the residence. Defendant yelled into the house, and Reyes banged on the front door and/or windows.
While this was going on, Sandoval asked Jordan if she should drive away. Jordan said yes. Sandoval, however, did not do so. She testified she could not abandon Reyes, who was much smaller than defendant. Sandoval cautioned Jordan to stay in her vehicle because, if he left, defendant might take Kirsten "to U-block" if he got inside the residence. Jordan remained in Sandoval's vehicle and did not flee because he was afraid for Kirsten.
Defendant and Reyes returned to the vehicle. Defendant got into the front seat and Reyes sat in the back with Jordan. Reyes told defendant he had heard somebody inside the residence calling the police. Reyes kept the gun pointed at Jordan. Defendant asked Jordan how he was going to get the money. Defendant said Jordan would "end up paying for it one way or the other." Jordan testified defendant rambled for probably 20 minutes about how he was going to hurt him if he did not get the money.
On the drive back to Cecilia's location, a sheriff's deputy responding to Kirsten's 911 call stopped Sandoval's vehicle. Deputies took everyone into custody. Deputies recovered both Reyes's handgun and a Saturn key on the ground outside the vehicle. At trial, there was a dispute regarding how Reyes's gun ended up on the ground. Jordan testified that, as the deputy stopped Sandoval's vehicle, Reyes tried to give him the gun, which ended up on Jordan's lap and fell to the ground as Jordan got out. Reyes testified he threw his gun from the vehicle as Jordan climbed out. Finally, the first responding deputy testified he saw Jordan holding the gun as Jordan exited the vehicle, and Jordan voluntarily placed it on the ground in compliance with the deputy's commands.
At trial, Sandoval generally asserted defendant had forced her to participate in these events. Reyes testified the gun used during this crime was his and he did not see defendant with a gun that night. Reyes claimed he had helped defendant that day to protect Sandoval. He was concerned defendant might hurt her. According to Reyes, defendant planned these events.
E. Evidence Defendant Attempted to Influence Trial Testimony
The prosecution presented evidence suggesting defendant attempted to influence trial testimony. While in jail awaiting trial in this matter, defendant made four telephone calls, which were recorded and played for the jury.
During these calls, defendant spoke with different people, including one call with Hutchins. In these recordings, defendant talked about a particular "fool," and he tried to convince these people to "get at" this person. Hutchins told defendant this particular person was not pursuing charges. Defendant thanked Hutchins for taking care of it for him.
Both Jordan and Kirsten testified Hutchins contacted them individually prior to trial about their upcoming testimony. He suggested to both of them that they should testify about an inability to remember what happened based on drug use.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion Regarding Defendant's Alleged Prior Bad Acts and Any Presumed Error Was Harmless
Defendant argues the trial court abused its discretion in permitting Jordan to testify about defendant's alleged prior kidnappings. He contends this evidence should have been excluded under Evidence Code section 352. He seeks reversal of his convictions.
A. Background.
During Jordan's direct trial examination, he said defendant had threatened him in the vehicle that, if he did not pay the $200, defendant would take Kirsten "and try to pimp her out." An immediate sidebar conference occurred outside the jury's presence. The trial court ruled Jordan could testify regarding his beliefs about defendant's similar prior acts. The court found this evidence relevant, and noted there appeared to be some support in offense reports for Jordan's assertion so that it did not appear this was "a total fabrication." The trial court asserted this evidence would be limited to determining Jordan's state of mind. The court assumed Jordan would say he had heard that defendant "has done that in the past, or something to that effect. That's where we're at now."
Defense counsel argued this testimony lacked foundation, was cumulative regarding Jordan's fearful state of mind, had limited relevance, and was unduly prejudicial. The trial court overruled those objections, determining this evidence was "relevant for the reasons I indicated."
When his trial testimony resumed, Jordan agreed that he thought defendant's threat regarding Kirsten was credible. He testified he had known defendant "to do that before." The source of Jordan's belief came from "friends" who had told him "about different girls that [defendant had] kidnapped and taken to Bakersfield." Following renewed defense objections, the trial court confirmed with Jordan that he had "heard this from other people." The court ruled Jordan's testimony was admissible. The jury was instructed this evidence was "admitted for the limited purpose as to [Jordan's] state of mind, something he was told that he believed. It's not being admitted for the truth as to [defendant] actually having done these things said by other people."
Following Jordan's direct examination, defense counsel moved for a mistrial, arguing Jordan's reference to kidnapping was in violation of the trial court's ruling, it was prejudicial, and it could not be mitigated either through cross-examination or with a limiting instruction. The trial court agreed it was not contemplated Jordan would mention kidnapping. The court, however, denied the motion for mistrial, ruling the limiting instruction and "the totality of what's been presented" did not show a denial of the right to a fair trial.
B. Standard of Review
We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver (2001) 26 Cal.4th 876, 933.) A trial court abuses its discretion when its ruling is outside the bounds of reason. (People v. Waidla (2000) 22 Cal.4th 690, 714.) Under this standard, we will not disturb the trial court's decision on appeal unless "'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis
Defendant contends other evidence established Jordan's state of mind, and Jordan had no personal knowledge of the alleged prior bad acts. He argues this testimony was inflammatory and had little probative value. He relies primarily on People v. Robertson (1982) 33 Cal.3d 21 (Robertson) and People v. Lyons (1956) 47 Cal.2d 311 (Lyons) to establish error. We find defendant's contentions and his cited authorities unpersuasive.
1. The trial court did not abuse its discretion
Relevant evidence has a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) A trial court may exclude otherwise admissible evidence if its probative value is substantially outweighed by its prejudicial effect; that is, if its admission would result in the undue consumption of time, a danger of undue prejudice, confusion about the issues, or the danger of misleading the jury. (Evid. Code, § 352.)
For purposes of Evidence Code section 352, prejudice is not associated with evidence that is probative of a defendant's guilt; instead, it involves evidence that tends to evoke an emotional bias against the defendant with very little effect on the issues. (People v. Crew (2003) 31 Cal.4th 822, 842.) "Evidence is substantially more prejudicial than probative [within the meaning of Evidence Code section 352] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla, supra, 22 Cal.4th at p. 724.) Our Supreme Court has cautioned that uncharged offenses are inherently prejudicial, and they are admissible only if they add substantial probative value. (People v. Rogers (2013) 57 Cal.4th 296, 331.)
Here, although Jordan had no personal knowledge regarding defendant's alleged prior acts, he explained why he believed defendant's threat to pimp out Kirsten. This testimony assisted the jury in determining the veracity of Jordan's claims, whether he reasonably felt fear, and whether the jury could find his testimony credible. The jury was made aware Jordan did not personally observe these prior alleged acts but had only heard about them. It was up to the jury to determine what happened factually (CALCRIM No. 200) and to judge Jordan's believability as a witness (CALCRIM No. 226).
A kidnapping occurs when a victim's movement is accomplished by force or any other means of instilling fear. (People v. Majors (2004) 33 Cal.4th 321, 326.) A criminal threat requires the person threatened "'reasonably to be in sustained fear for his or her own safety.'" (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Jordan's testimony tended to prove or disprove whether defendant placed the two victims in a state of fear so as to support the charges of kidnapping (§§ 207, 209) and making a criminal threat (§ 422).
We disagree that Jordan's testimony was cumulative regarding his state of mind. Although other evidence suggested Jordan had reason to be afraid, this testimony explained why he may have also reasonably feared for Kirsten's safety. When given the chance to flee from Sandoval's vehicle, Sandoval cautioned him that defendant might take Kirsten "to U-block" if he reached her while she was with Cecilia. Jordan testified he remained in Sandoval's vehicle and did not flee because he was afraid for Kirsten. We cannot say Jordan's disputed testimony had very little effect on the trial issues. This evidence provided substantial probative value regarding Jordan's state of mind and a possible motivation for not fleeing when given the chance.
Defendant's cited authorities do not assist him. In Robertson, supra, 33 Cal.3d 21, the defendant was on trial for the stabbing murders of two females. A witness testified that, a year before these murders, the defendant had assaulted her, cut off her clothes with a knife, and claimed he had killed two others. (Id. at p. 40.) On appeal, the defendant claimed his trial counsel was ineffective in failing to object to this testimony. (Ibid.) Robertson agreed, noting the defendant's admission was objectionable because no independent evidence of the corpus delicti of these murders was introduced. (Id. at p. 41.) Further, this testimony's prejudicial effect far outweighed its probative value and, had a proper objection been lodged, it should have been excluded under Evidence Code section 352. (Robertson, at pp. 41-42.) As the high court explained, ample other evidence had established this witness's "'state of mind' or plight." Because there was an obvious potential for prejudice, Robertson concluded this statement should have been excluded. (Id. at p. 42.) Although Robertson found ineffective assistance of counsel, the high court concluded no prejudice resulted because the evidence overwhelmingly established guilt. (Ibid.)
In Lyons, supra, 47 Cal.2d 311, the prosecutor cross-examined the defendant's wife. The prosecutor posed questions which alluded to the defendant's prior conviction. (Id. at p. 316.) Lyons concluded the prosecutor's questions were misconduct and intended to prejudice the defendant before the jury. (Id. at p. 317.) The high court concluded the error was prejudicial and reversed. (Id. at p. 324.)
Here, unlike in Robertson and Lyons, Jordan's disputed testimony went directly to relevant trial issues, including why Jordan may have believed the threat posed regarding his girlfriend, and it cast some light on why Jordan may not have fled Sandoval's vehicle when he had an opportunity. This disputed testimony did not involve defendant's own admissions. Unlike in Robertson and Lyons, this evidence did not stem from ineffective assistance of counsel or prosecutorial misconduct. Defendant's cited authorities are distinguishable and do not dictate reversal.
Based on this record, the trial court's ruling was not outside the bounds of reason. The court did not exercise its discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice. Accordingly, an abuse of discretion is not present and this claim fails.
2. Any presumed error was harmless
Due process is not offended by the admission of relevant evidence unless it is so prejudicial as to render the criminal trial fundamentally unfair. (People v. Jablonski (2006) 37 Cal.4th 774, 805.) In the absence of fundamental unfairness, the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) is used to analyze an evidentiary error that involves state law. (People v. Partida (2005) 37 Cal.4th 428, 439.) The question is "whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (Ibid.)
Here, even if we presume the trial court abused its discretion, any error was harmless. First, the jury found defendant guilty of making a criminal threat and false imprisonment. The trial evidence overwhelmingly established defendant's guilt for these charges.
The guilty verdicts for false imprisonment were the lesser included offenses of kidnapping (§ 207, subd. (a)) and kidnapping for ransom (§ 209, subd. (a)), for which the jury acquitted defendant. At sentencing, the trial court stayed imposition of sentence on two of the false imprisonment counts.
Jordan, Kirsten, Sandoval and Reyes all consistently testified defendant threatened Jordan multiple times during this incident. Jordan and Kirsten consistently testified they were afraid and felt they could not leave Sandoval's vehicle. Although Kirsten posed as Cecilia during the 911 call, Kirsten's statements to the dispatcher generally corroborated that defendant (along with Reyes) falsely imprisoned Jordan and Kirsten in Sandoval's vehicle, and defendant threatened to harm Jordan. After learning someone had called 911, defendant and Reyes fled, and tried to switch vehicles, before deputies took them into custody.
Second, the trial court admonished the jury this testimony was admitted only to determine Jordan's state of mind, and it was not admitted to prove defendant actually kidnapped other girls. We presume the jury followed these limiting instructions, and there is nothing in this record to rebut that presumption. (People v. Waidla, supra, 22 Cal.4th at p. 725.) Moreover, the jury found defendant not guilty of the kidnapping charges. The jury's verdicts are a strong indication it did not use this disputed testimony improperly.
Finally, we reject defendant's claim admission of this testimony violated due process. Due process is not offended by the admission of relevant evidence unless it is so prejudicial as to render the criminal trial fundamentally unfair. (People v. Jablonski, supra, 37 Cal.4th at p. 805.) Based on this record, we disagree this evidence rendered this trial fundamentally unfair.
Under the Watson standard, it is not reasonably probable the verdict would have been more favorable to defendant had this disputed testimony been disallowed. As such, even if the trial court erred, any presumed error was harmless. Accordingly, prejudice is not present and this claim fails.
II. The Trial Court Did Not Commit Instructional Error and Any Presumed Error Was Harmless
During a jury instruction conference, the trial court determined that, based on defendant's recorded jailhouse call with Hutchins, it was reasonable to infer defendant had attempted to influence trial testimony. As a result, the trial court instructed the jury with CALCRIM No. 371 as follows:
"If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt, but only [if] the defendant was present and knew about the conduct, or if not present, authorized the other person's actions. It is up to you to decide the meaning and importance of this evidence; however, evidence of such conduct cannot prove guilt by itself."
Defendant claims his due process right to a fair trial was violated when the trial court instructed the jury with CALCRIM No. 371. He contends the jail recordings were too vague to suggest he attempted to influence false testimony. We disagree.
A. Standard of Review
Instructional errors are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570; People v. Jandres (2014) 226 Cal.App.4th 340, 358.) We must ascertain the relevant law and determine whether the given instruction correctly stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.)
B. Analysis
1. The trial court did not err
"It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (b).)
"An attempt to fabricate evidence may manifest a defendant's consciousness of guilt, but only if the attempt was made by the defendant or by another with the defendant's knowledge or authorization. [Citations.]" (People v. Nelson (2011) 51 Cal.4th 198, 214, fn. omitted.) "Consciousness of guilt may be shown by (1) a defendant's own efforts to create false evidence or obtain false testimony, or (2) the efforts of someone else to do so, 'but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions.' (CALCRIM No. 371.)" (Ibid.)
Here, defendant's recorded jailhouse calls show he talked about a particular "fool," and he tried to convince people to "get at" this person. Hutchins said that person was not pursuing charges. Defendant thanked Hutchins for taking care of it for him. At trial, both Kirsten and Jordan testified Hutchins asked them to say they had taken too many drugs and could not remember what had happened on the day in question.
Based on the trial evidence, a reasonable inference exists that defendant took steps to influence trial testimony. This inference is not based on speculation, as defendant suggests, but is logically and reasonably drawn from the facts in evidence. As such, we reject defendant's claim the evidence was insufficient for this jury instruction.
Based on this record, the trial court properly instructed the jury regarding an attempt to fabricate evidence that defendant may have authorized. The trial court's instruction under CALCRIM No. 371 properly stated the law. Accordingly, instructional error did not occur.
2. Any presumed error was harmless
Errors in jury instructions are typically reviewed under the Watson standard. (People v. Breverman (1998) 19 Cal.4th 142, 178.) Under the Watson standard, reversal for instructional error must be based on a reasonable probability, and not just a theoretical possibility, that it affected the trial's outcome. (People v. Blakeley (2000) 23 Cal.4th 82, 94.)
Here, even if the trial court erred, any presumed error was harmless. The trial evidence overwhelmingly supported the jury's guilty verdicts. Furthermore, the instruction pursuant to CALCRIM No. 371 actually benefited defendant. This instruction made it clear to the jury that any effort defendant may have taken to suppress trial testimony was not, by itself, sufficient to establish his guilt. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235 [addressing CALJIC No. 2.06, predecessor to CALCRIM No. 371].)
Based on this record, it is not reasonably probable defendant would have obtained a more favorable outcome had this jury instruction not been given. Accordingly, any presumed instructional error was harmless and this claim fails. III. The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Romero Motion
Defendant argues he suffered cumulative error from the concerns he raised in parts I and II. We need not address this claim because we have rejected those arguments individually. (See In re Reno (2012) 55 Cal.4th 428, 483 [previously rejected claims cannot support a cumulative error claim].)
Prior to sentencing, defendant requested the trial court to strike a strike stemming from a 2001 felony conviction for inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), which included a great bodily injury enhancement (§ 12022.7, subd. (d)). The trial court denied defendant's Romero motion, which defendant argues was an abuse of discretion. He requests we vacate his sentence and remand for resentencing in the absence of this strike.
A. Standard of Review
We review under the deferential abuse of discretion standard a trial court's failure to dismiss or strike a prior conviction allegation. (People v. Carmony (2004) 33 Cal.4th 367, 375.) "'Discretion is the power to make the decision, one way or the other.' [Citation.]" (Ibid.)
B. Analysis
Defendant contends his prior 2001 conviction was remote in time and "an anomaly" in his criminal history. He asserts that, in the intervening 14 years, he suffered only misdemeanor drug convictions until this present offense, and he was not convicted of a felony other than the prior strike. He maintains he falls outside the spirit of the so-called Three Strikes law. We disagree.
"The 'Three Strikes' law prescribes increased punishment for a person who is convicted of a felony after having been previously convicted of specified offenses. [Citations.]" (People v. Murphy (2001) 25 Cal.4th 136, 139.) Section 1385, subdivision (a) gives the trial court the discretion to strike an allegation that a defendant has previously been convicted of a felony if the dismissal is in the furtherance of justice. (Romero, supra, 13 Cal.4th at p. 508.) "[T]he order striking such allegations ... embodies the court's determination that, '"in the interest of justice" [the] defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of [the alleged] fact.'" (Ibid.)
"[T]he Three Strikes law was devised for the 'revolving door' career criminal, and was expressly intended 'to ensure longer prison sentences ... for those who commit a felony' as long as they were previously convicted of at least one strike." (People v. Strong (2001) 87 Cal.App.4th 328, 331-332, fn. omitted.) Our Supreme Court has declared the purpose of the Three Strikes law is to punish recidivism, and it focuses on the status of a defendant as a repeat felon. (People v. Murphy, supra, 25 Cal.4th at p. 155.)
In deciding whether to strike a prior conviction, "the court in question must consider whether, in light of the nature and circumstances of [the defendant's] 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." (People v. Williams, supra, 17 Cal.4th at p. 161.)
Two fundamental precepts guide our appellate review. First, the appealing party bears the burden "'"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."' [Citations.]" (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) "Second, 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.'"' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
Here, in denying defendant's Romero motion, the trial court created an extensive record regarding defendant's criminal history, his prior convictions involving violence, and the nature and circumstances of the present incident. The trial court found defendant came within the spirit of the Three Strikes law. This record supports the trial court's reasoning.
Defendant was approximately 37 years old at the time of this sentencing. Starting in 1994, he was deemed a ward of the court, and he served time in juvenile hall in 1995 and 1996. From 1996 through 1998, he was convicted of approximately seven misdemeanors, including two counts of battery (§ 243, subd. (a)) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)).
In 1999, he was sentenced to 16 months in prison for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He was paroled in June 2000, but committed misdemeanor disorderly conduct (§ 647, subd. (f)) less than two months later and was found in violation of parole. In 2000, he also committed misdemeanor corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)).
In 2001, defendant was convicted of felony corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), along with an enhancement for great bodily injury inflicted on a child under the age of five years (§ 12022.7, subd. (d)), and he received a nine-year prison sentence. He was paroled in 2008 but violated his parole in 2010 with possession of drug paraphernalia (Health & Saf. Code, § 11364). In 2011, he received three years of felony probation and a one-year jail term for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). In 2012, he violated probation and he was sentenced to prison for three years four months. He was discharged in 2013 to postrelease community supervision (PRCS). He violated PRCS approximately five months later, was sentenced to 90 days in jail, and again violated PRCS in 2014. He served 180 days in jail in 2015. The felony for possession of a controlled substance was reduced to a misdemeanor.
It is not clear from the probation report how defendant violated PRCS in 2013 and 2014, or why he served 180 days in jail in 2015. --------
Although defendant's prior strike was from 2001 and was approximately 14 years old when he committed this present offense, defendant had a clear history of continuous criminal conduct, including repeated incarcerations. He had exceedingly poor performance on probation and parole. In addition to his 2001 felony, he had repeated misdemeanor convictions involving violence. His present crime involved threats of violence. We disagree that the prior strike represented "an anomaly" in his criminal history.
We presume the trial court acted to achieve legitimate sentencing objectives. As the trial court noted, the present matter involved serious charges, and a gun (albeit held by Reyes) was used in this crime. Defendant falsely imprisoned both Jordan and Kirsten, and he made criminal threats to Jordan. Defendant's actions in this matter, and over his lifetime, establish he is a danger to society, and he has been neither rehabilitated nor deterred from further criminal activity as a result of his past imprisonments. He is a career criminal and a repeat felon. Defendant fell within the spirit of the Three Strikes law, and he is being punished for his recidivism.
Based on this record, defendant has failed to show the trial court's decision was irrational or arbitrary. The trial court did not abuse its discretion and this claim fails.
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.