Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR68548
NICHOLSON, Acting P.J.
Defendant Adus Jarrar challenges the trial court’s denial of his motion to strike a prior felony conviction for purposes of the “Three Strikes” law. He claims the court abused its discretion by denying the motion, and that the court erred by relying on facts related to a dismissed charge without having obtained a Harvey waiver. We disagree with defendant’s contentions and affirm the judgment.
People v. Harvey (1979) 25 Cal.3d 754.
Because there was no trial, we rely on the probation report’s summary of the facts.
Defendant was an inmate at the Department of Corrections and Rehabilitation’s Ishi Conservation Camp in Tehama County. Defendant was serving a four-year prison term arising from two convictions of robbery in 2003.
On February 18, 2006, correctional officers discovered that defendant was missing from camp and reported the escape to the sheriff’s department. After searching the area, officers learned that a truck belonging to a nearby Department of Fish and Game facility had been stolen. The truck was later found abandoned in a ditch near Red Bluff.
Officers found and arrested defendant in South San Francisco a few days later. He admitted he had taken the Fish and Game truck when he found it with the keys in the ignition.
The prosecutor charged defendant with one count of escape from custody (Pen. Code, § 4530, sub d. (b)), and one count of unlawfully driving or taking a vehicle. (Veh. Code, § 10851, sub d. (a).) The information also alleged that defendant had two prior strikes and one prior prison term. (Pen. Code, §§ 1170.12, subds. (a)-(d); 667.5, sub d. (b).) Defendant pled not guilty and denied all of the allegations.
Eventually, defendant and the prosecutor entered into a plea agreement. Defendant agreed to plead guilty to count II and to admit the two prior strikes. The prosecutor agreed to dismiss count I. The trial court accepted the agreement, declared defendant guilty on count II and found true the prior strikes. No Harvey waiver was obtained from defendant.
Prior to sentencing, defendant filed a Romero motion to strike one of his prior strikes. The trial court denied the motion, and it sentenced defendant to a prison term of 25 years to life.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
I
Abuse of Discretion
Defendant contends the trial court abused its discretion in refusing to strike one of his priors. He claims the court should have granted his motion because the current offense was relatively minor, an adequate sentence could still be imposed, and his prior convictions arose from a single period of aberrant behavior for which he served a single prison term. At sentencing, defendant also claimed he was not in control of the situation and his original intent was not to escape from custody. We conclude the court did not abuse its discretion.
The Three Strikes law requires the trial court to impose specified increased punishment on a defendant convicted of a felony who has suffered one or more prior serious or violent felonies. (§ 1170.12, subds. (a), (b) & (c).) For a defendant who has suffered two prior serious or violent felony convictions, the enhanced penalty is a prison term of 25 years to life or a comparable indeterminate sentence. (§ 1170.12, sub d. (c)(2)(A)(ii).) The purpose of the law is to provide increased punishment for recidivist offenders who, by reason of their criminal history for violent or serious felonies, have demonstrated that they are not rehabilitated nor deterred from further criminal activity as a result of their prior imprisonment. (People v. Davis (1997) 15 Cal.4th 1096, 1099; People v. Leng (1999) 71 Cal. App.4th 1, 14.)
Nevertheless, a trial court has discretion under section 1385, subdivision (a), to strike a prior strike conviction in furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 529-530.) Its decision to grant or deny such a request is reviewed under the deferential abuse of discretion standard. (Id. at p. 531; People v. Carmony (2004) 33 Cal.4th 367, 374.)
Under that standard, a defendant must demonstrate the trial court’s decision was “irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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.” (People v. Myers (1999) 69 Cal. App.4th 305, 309-310.)
The trial court’s decision to grant or deny a motion to strike a prior conviction turns on whether the defendant falls outside the spirit of the statute so that he should be treated as though he had not suffered the prior conviction. (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court must make that determination in light of the nature and circumstances of the defendant’s present felonies and prior serious or violent felony convictions and the particulars of his background, character, and prospects. (Ibid.)
Our review of the record indicates the trial court considered all of the relevant factors, and rationally and without abusing its discretion determined that defendant did not fall outside the spirit of the Three Strikes law. The court reviewed defendant’s background, character, and prospects. Defendant was born in Palestine in 1978, and immigrated to the United States in 1995 with his family to attend school. He is married and has no children. He attended college, and before going to prison, he worked two jobs while running his own janitorial service.
The court reviewed the present offense and defendant’s explanation of the crime. Defendant asserted that he originally intended to take a bicycle to a nearby store to buy tobacco, but he took the truck, found the store to be closed, then headed for Red Bluff. Defendant abandoned the truck when it had mechanical problems and, upon realizing he could not make it back to the camp in time for the head count, he ran. The court did not find this explanation credible, particularly defendant’s claim at argument that the situation went beyond defendant’s control. “That simply is not true,” the court stated. “The Defendant had control of every single thing that he did.”
The court reviewed defendant’s prior felonies. Defendant committed grand theft in 2002, and, in violation of his probation on the theft conviction, committed two separate bank robberies in one week in 2003. The court was aware that defendant had a serious gambling problem. At the time of the robberies, defendant was earning about $7,000 per month, but was spending $5,000 per month gambling. The court noted defendant was sent to prison for those robberies and committed the escape while still serving that term.
Based on all of these circumstances, the court determined not to strike one of the prior felony convictions. It wrote: “The Court cannot say that in the interests of justice the Defendant lies outside the spirit of the Three Strikes law, not when the Defendant has three prior felony convictions within a short period of time; not when the Defendant commits this offense before he even gets released from prison on two of those convictions. [¶] Unfortunately for the Defendant, he comes within the spirit of the Three Strikes law, and it would be an abuse of discretion for the Court to strike a strike.”
The record indicates the trial court considered all of the relevant factors and reached a decision that was neither irrational nor arbitrary. We thus conclude the trial court did not abuse its discretion when it denied defendant’s Romero motion.
II
Consideration of Facts of Dismissed Offense
Defendant claims the trial court committed error by relying on the facts surrounding the dismissed escape charge to deny his Romero motion. Because no Harvey wavier was obtained, defendant argues, the rule of Harvey prevented the court from relying on those facts. Defendant acknowledges that Harvey does not apply to a dismissed count that is transactionally related to the admitted count, but he asserts that exception does not apply here. We conclude the exception does apply here and thus the court committed no error.
The parties do not cite to us any authority, and we have found none, holding that Harvey applies to Romero motions. However, we need not decide that issue today in order to resolve the case at hand. We assume only for purposes of argument that Harvey applies.
The Harvey court created an exception to its bar of considering facts of dismissed charges. “While facts relating to an independent count which is dismissed pursuant to a plea bargain may not be considered in aggravation of the crime to which a defendant pleads guilty ([Harvey, supra, 25 Cal.3d at p. 758]), such is not the case where the facts regarding the dismissed count are transactionally related to the offense to which the defendant pleads guilty (id. at p. 758; People v. Guevara (1979) 88 Cal. App.3d 86, 92-94).” (People v. Cortez (1980) 103 Cal. App.3d 491, 496.)
Multiple crimes are transactionally related when they have a “circumstantial cohesiveness;” in other words, they are closely connected in time and place so as to compromise a single criminal transaction. (People v. Valenzuela (1995) 40 Cal.App.4th 358, 364.)
Here, defendant’s charged and dismissed crimes bear this relationship. Even defendant admitted this point in his Romero motion. Defendant escaped the prison facility and quickly stole a vehicle to further his plan to leave. This is a sufficient nexus to invoke the exception to Harvey.
The trial court thus did not err by considering the facts supporting the dismissed escape charge when it denied defendant’s Romero motion.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., MORRISON, J.