Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB801395, Robert J. Lemkau, Judge.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
HOLLENHORST Acting P. J.
Defendant and appellant Quentin Dushawn Johnson was charged with unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a), count 1) and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a), count 2). It was also alleged that he had one prior strike conviction. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) At his first trial, a jury acquitted him of count 1 and could not reach a verdict on count 2. A mistrial was declared on count 2 and a retrial was scheduled. At the second trial, the jury found defendant guilty on count 2. Defendant admitted his prior strike conviction. He made a motion to dismiss his prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), but the court denied the motion. The court then sentenced him to the midterm of two years, doubled pursuant to the strike, for a total of four years in state prison. The court also ordered defendant to pay $150 in victim restitution under Penal Code section 1202.4.
On appeal, defendant contends that: 1) the court abused its discretion by refusing to strike his strike conviction; and 2) the order of victim restitution was unauthorized. We affirm.
FACTUAL BACKGROUND
On or about March 29, 2008, a 1993 Nissan Sentra owned by Heriberto Saucedo (the victim) was stolen while it was parked in front of his house. At the time it was stolen, there was nothing missing or damaged on the interior of the car, and the exterior paint job was in good condition.
On March 31, 2008, Officer Jessie Ludikhuize observed defendant driving a car with no license plate lamp. He ran a check on the license plate number and discovered that it did not exist in the Department of Motor Vehicles records. He initiated a traffic stop and immediately noticed there was no radio or rear seat in the car, and that there was damage to the steering column. Also, the master ignition switch was exposed, and there was no key in the ignition. The car was running without a key. Defendant said he did not have a key to the car, and he did not know who owned the car. The officer then noticed that the license plates had been altered to change the “C” into an “O.” The officer determined the car was stolen and arrested defendant. The victim was called to the scene and recognized the car as his own.
After taking defendant to the jail facility and reading him his Miranda rights, Officer Ludikhuize asked him some questions about the car. Defendant said he met a man named Joe at an AM/PM market, and Joe had asked him to replace the steering column. Defendant said Joe drove them to an unknown residence to get the car. First, defendant said that Joe said the car was stolen. Then defendant changed his mind and said the car had just been damaged and needed to be fixed. Defendant said he arranged to be paid $50 to fix the car. Defendant also said he did not return the car to Joe because he had not been paid to fix it yet.
Miranda v. Arizona (1966) 384 U.S. 486.
Defendant testified on his own behalf at trial. He said he earned money repairing cars. A man named “Joe” approached him at a Shell gas station and asked if he could do a job. Joe went through some items defendant had for sale and chose to buy a steering column. Joe offered him money to go and get the car and repair it. Joe drove defendant in another car to the site where the car that needed repair (the victim’s car) was located. When they got to the car, Joe said he wanted defendant to “swap out” the steering column. Defendant got into the car and was going to follow Joe back to get defendant’s tools, which were back in defendant’s car. Defendant testified that when he received the car, the ignition was not damaged, and that Joe had a key for the car. The steering wheel was bent, but the master ignition switch was not exposed. There was no backseat or radio in the car. Defendant testified that his conversation with Joe led him to believe the car was a recovered stolen vehicle. Defendant said he thought it was Joe’s car. On the way to defendant’s car, Joe got into a car accident and went to the hospital.
Defendant further testified that he had a key to the car the entire time he had possession of the car. In contrast to the officer’s testimony, defendant testified that the key was in the car when he was arrested and that he mentioned it to the officer. Defendant also testified that he removed the steering column about five or 10 minutes after he left the scene of the car accident. He said he still had hopes that Joe was going to come and pick up the car, so he decided to wait for Joe.
ANALYSIS
The Trial Court Properly Exercised Its Discretion in Refusing to Strike Defendant’s Prior Strike Conviction
Defendant contends the trial court erred in failing to strike his prior strike conviction. He asserts the court erred in considering only his prior record, to the exclusion of the other Romero factors it was required to consider. He further argues that his record, even considered alone, did not justify denial of the motion. We conclude the court properly declined to strike his prior strike.
A. Standard of Review
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that a trial court has discretion to dismiss three strikes prior felony conviction allegations under Penal Code section 1385. (Id. at pp. 529-530.) We review rulings on motions to strike prior convictions under the deferential abuse of discretion standard. (People v. Myers (1999) 69 Cal.App.4th 305, 309.) “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. [Citation.]” (Id. at p. 310.)
B. The Trial Court Did Not Abuse Its Discretion
The touchstone of the Romero analysis 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.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.) “[T]he circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the... scheme....’” (Id. at p. 378.)
This case is far from extraordinary. Defendant claims the court did not consider anything except his prior record. However, the court stated it read and reviewed defendant’s motion to strike the prior conviction. Defendant also asserts that his strike conviction occurred over 20 years ago. He further argues that his subsequent record includes only four misdemeanor convictions, and that the present offense was not serious or violent and was not more serious than his prior misdemeanors. However, defendant’s recidivist criminal history brings him squarely within the spirit, as well as the letter, of the “Three Strikes” law. His criminal history dates back 22 years, when he was first convicted of attempted murder. (Pen. Code, §§ 664, 187.) His convictions include assault (Pen. Code, § 240), terrorist threats (Pen. Code, § 422), driving with a suspended license (Veh. Code, § 14601.1), and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). During his lengthy criminal history, defendant has served a prior prison term and has been in jail several times. Furthermore, he was on a grant of summary probation at the time he committed the present offense, and he has not shown remorse for the present offense. In short, the record demonstrates over two decades of criminal conduct, undeterred by repeated incarcerations.
Furthermore, “[b]y its very terms, any felony triggers a longer sentence under the Three Strikes law as long as the defendant has sustained at least one strike. Since the express intent of the Three Strikes law is ‘to ensure longer prison sentences’ for any defendant who has a qualifying strike and subsequently commits ‘a felony,’ the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law.” (People v. Strong (2001) 87 Cal.App.4th 328, 344, italics added, fns. omitted.)
Finally, we note defendant’s argument in his written Romero motion that he was now over 40 years old and, because of his age, will be “less likely to engage in the types of crimes that the Three Strikes law is designed to discourage when he is released from prison.” This claim cannot take defendant outside the spirit of the Three Strikes law. (People v. Strong, supra, 87 Cal.App.4th at p. 345.) “While some courts, in considering whether to dismiss a strike, have considered age in conjunction with the length of the sentence and the defendant’s prospects, middle age, considered alone, does not remove a defendant from the spirit of the Three Strikes law. Otherwise, those criminals with the longest criminal records over the longest period of time would have a built-in argument that the very factor that takes them within the spirit of the Three Strikes law—a lengthy criminal career—has the inevitable consequence—middle age—that takes them outside the law’s spirit.” (Ibid., fn. omitted.) Moreover, defendant was sentenced to only four years in prison, and, thus, will not be significantly older when he is released.
We conclude the court did not abuse its discretion in declining to strike defendant’s prior conviction.
II. The Court Properly Ordered Victim Restitution
Defendant argues the $150 restitution order under Penal Code section 1202.4 was unauthorized because there was no evidence that he caused the damage to the victim’s car. We disagree.
“[T]he language of California Constitution article I, section 28, subdivision (b) grants the right to receive restitution for losses resulting from the crime of which the defendant was convicted.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1247.) Penal Code section 1202.4, subdivision (a)(1) provides: “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” “We review the trial court’s restitution order for abuse of discretion. [Citation.]” (People v. Woods (2008) 161 Cal.App.4th 1045, 1048.)
Here, the victim requested that defendant be ordered to pay him $150 for the parts he purchased in order to repair his car. Defendant contends the loss suffered by the victim was not caused by his offense of receiving stolen property. However, the court properly exercised its discretion in concluding that defendant was responsible for the damage caused to the victim’s car while he had possession of it. Defendant testified that when he received the car, the ignition was not damaged and the master ignition switch was not exposed. Defendant admitted he removed the housing for the steering column and exposed the master ignition switch. Thus, when the police officer pulled the car over, defendant was driving without a key in the ignition with the master ignition switch exposed. Defendant told the officer he was using the master ignition switch to start the car. Thus, he caused damage to the master ignition switch in order to drive the car without the key.
In his reply brief, defendant contends the evidence of the removal of the steering column housing and the exposure of the master ignition switch does not constitute “damage” to the victim’s car. He asserts he was hired to replace the steering column, and that he presumably did so properly. He concludes “there is simply no substantial evidence that the removal constituted a loss [to] the Nissan’s owner.” We disagree. The victim testified that, at the time his car was stolen, there was nothing missing or damaged in the car. However, when the officer pulled defendant over while he was driving the stolen car, the officer immediately noticed there was damage to the steering column and that the master ignition switch was exposed. The officer testified the master ignition switch is a device that is attached to the ignition, and when you remove the steering column, “there’s a round circle with a slot in it that you can insert any kind of object” to start the car. He further explained that you break the steering column so that you can expose and reach the master ignition switch, in order to operate the car without a key. Thus, the evidence supported the conclusion that defendant did not have the key to the car, which he admitted to the officer, and that he broke the steering column in order to be able to drive the car without a key.
In view of the evidence, we cannot say the court abused its discretion in ordering victim restitution.
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., MILLER, J.