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People v. Juarez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 26, 2012
E052109 (Cal. Ct. App. Jan. 26, 2012)

Opinion

E052109

01-26-2012

THE PEOPLE, Plaintiff and Respondent, v. HUGO ERNESTO JUAREZ, Defendant and Appellant.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Sabrina Y. Lane-Erwin, and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. SWF10000564 & SWF10000699)


OPINION

APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge. Affirmed.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Sabrina Y. Lane-Erwin, and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

In case No. SWF1000699, defendant and appellant Hugo Juarez pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and petty theft (Pen. Code, § 490.5, subd. (a)). He also admitted a 2003 conviction for threatening to commit a crime that would result in death or great bodily injury (Pen. Code, § 422), which constituted a strike prior (Pen. Code, § 667, subds. (c) & (e)(1)). In case No. SWF1000564, a jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and vandalism exceeding $400 (Pen. Code, § 594, subd. (b)(1)). Defendant again admitted the same 2003 conviction, which constituted both a serious felony prior (Pen. Code, § 667, subd. (a)(1)) and a strike prior (Pen. Code, § 667, subds. (c) & (e)(1)). After the trial court denied defendant's Romero motion requesting the dismissal of his strike prior conviction, defendant was sentenced to a total prison term of 10 years, 4 months. Defendant contends the trial court abused its discretion by denying his motion to dismiss his strike prior conviction. We affirm.

All further statutory references are to the Penal Code unless indicated.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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BACKGROUND

1. Defendant's Criminal History

On December 4, 1996, defendant was convicted of misdemeanor battery (§ 242).

On July 11, 2003, defendant was convicted of: (1) threatening to commit a crime that would result in death or great bodily injury (Pen. Code, § 422), the conviction underlying the serious felony prior and the strike priors in both cases; (2) misdemeanor infliction of corporal injury on a coparent (Pen. Code, § 273.5, subd. (b)); (3) misdemeanor assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); (4) driving while his privilege to do so had been revoked or suspended (Veh. Code, § 14601.1, subd. (a)); and (5) failure to appear (Veh. Code, § 40508, subd. (a)).

On November 18, 2008, defendant was twice convicted of driving while his privilege to do so had been revoked or suspended (Veh. Code, § 14601.1, subd. (a)). He was on probation for these offenses when he committed the offenses underlying his convictions in case Nos. SWF1000564 and SWF1000699.

2. Incident underlying case No. SWF1000564

On January 14, 2010, the victim came to pick up defendant's girlfriend after she had called her sister to report she was fighting with defendant. Defendant ran after the victim's vehicle wielding a knife. He punctured the driver's side door with the knife, and then stabbed at and broke through the driver's side window. The victim moved away from the knife but the tip of the knife hit him in the side, without "a big puncture or anything."

3. Incident underlying case No. SWF1000699

On March 4, 2010, defendant possessed methamphetamine and stole less than $400 worth of property from a drug store.

4. The Motion and Sentencing

Defendant's Romero motion recited his background, character, and prospects; noted the age of the strike prior; and, asserted his willingness to undergo treatment. The motion contended defendant was outside the spirit of the "Three Strikes" law because of: his future prospects with intensive rehabilitation; the needs of his children; and the prior, arising "from a difficult time in his life when he was splitting up with the mother of his children and using drugs. His strike prior is his only prior felony conviction and the facts of the case are less serious than compared to other cases of the same charge. The victim of [defendant's] strike prior states that she has a continued positive co-parenting relationship with [defendant] and it was an isolated incident in their long relationship. [Defendant] has completed several college courses and technical computer trainings. He has a strong desire and ability to contribute to society through gainful employment and maintain[ing] his own sobriety."

Attached as exhibits to defendant's motion were copies of his high school equivalency certificate and many letters from his family. Defendant's ex-girlfriend (the victim of some of the 2003 convictions) and children also wrote letters to the probation officer on his behalf. Defendant's trial counsel commenced her argument by putting forth the death certificate of defendant's brother as an additional exhibit. She then stated that defendant's father and his ex-girlfriend would speak, and described what she anticipated they would say.

Defendant's trial counsel then characterized defendant as someone who has "been struggling with a serious drug problem for a long time" but was "loved by his family, is considered to be a positive person, has a positive influence in their life, [and] that this is what they consider an aberration of character."

The trial court questioned the level of family support or drug addiction asserted by counsel, as "one would think in the last seven years they would have seen the problem and encouraged him to get drug treatment as well without waiting for him to commit another crime, come into court, tell the Court, 'Hey, he's never been given an opportunity.' " Defendant's trial counsel speculated that "it was not something that they were necessarily totally aware of or at least aware of how bad it was. Even [defendant], himself, may not have been aware of how bad it was."

Defendant's father explained defendant's childhood, including the death of his brother, and the father's perception that defendant's parents did not address defendant's grief because of their own grief, and because the father was not home often after becoming a cross-country truck driver. He then stated that he was in denial as to defendant's drug problem, minimized defendant's 2003 convictions, asserted that the family would support defendant's efforts at rehabilitation, and requested minimal jail time for defendant.

Defendant's ex-girlfriend told the trial court that prior to the 2003 incident, they had been together for seven years without any prior incidents. She thought he started using drugs after taking their break up "really hard," but that he did not use them "for a very long time because he did go to jail." She described her "incident" with defendant as being "mainly a threat on a voicemail" without any actual violence. She then described defendant as a good father, and stated that it had "been hard on the kids to not see him just the short time he's been in jail." The ex-girlfriend confirmed that defendant's threat in 2003 had been a threat to the children, and that she had obtained a restraining order because she "didn't want to take any chances."

Defendant's trial counsel concluded her presentation by noting that while defendant was on probation at the time of his present offenses, it was only summary probation "for driving on a suspended license," and that while the present offense was a violent offense the physical injury to the victim "was very minimal."

The People noted in their argument that "defendant picked up, not one, but two cases. In one of those cases, his conduct was extremely violent and he was using a weapon, and it constitutes a new strike offense." The People continued, "He has a conviction for attacking his girlfriend at the time six months prior to the event where he's threatening to murder his children. In the current case, he is in a—possibly verbal altercation, if you believe his current girlfriend, but it also may have been a physical altercation, where she's having to call somebody to get her out of there. The person comes in to save her, and he attacks that person. [¶] The idea that his conduct is excusable because he's not actually touching the people is undercut by the fact that he was convicted of a 245 and 273.5 previously in 2003 for conduct against a member of this loving relationship that he should have been protecting. [¶] But also in the current case, the only reason we are not seeing significant injury on the victim in the current case is the victim was able to slide away from him. The defendant tried multiple times to attack this person." The People then stated that this was not a third strike case, and asserted that defendant's character and prospects were poor because he "picked up and has active four separate cases right now. Two of those are felony cases awaiting sentencing, one of them is for a new strike offense. The idea that we can say this is not a person who is likely to re-offend is just not borne out by his conduct." The People concluded by noting that defendant was on probation for driving a license that had been "suspended for failure to pay child support," and that while defendant had "a wonderful family" it did "not excuse or give sufficient basis for the Court to strike the strike."

The trial court commenced its ruling by stating the relevant standard and considerations for dismissing a strike prior. It then moved on to its analysis of the relevant factors, by reciting its understanding of the basis for the strike prior, "an incident in 2003 when [defendant] threatened to kill the children of his and [the ex-girlfriend] based upon a situation wherein he allegedly observed or suspected infidelity on behalf of [the ex-girlfriend]."

The trial court recited the circumstances of defendant's present felonies, and noted that the behavior in the present case was an escalation from the behavior of the 2003 strike prior, in that the strike prior "was merely verbal in nature. It was a threat over the telephone, whereas the current felony conviction involved acts of violence along with the use of a weapon."

The trial court considered defendant's prior convictions, as listed in the probation report, and examined defendant's background, character, and prospects: "this would appear to be one of the factors that is more in favor of the defendant among all the factors. Because the Court did review the defendant's brief, the letters, and the attachments from various family members attesting to the defendant's childhood upbringing, drug addiction, and the general consensus that the defendant is a loving person." The trial court then told defendant that "whatever amount of time you ultimately end up serving, you do have the support of family. You have a support system waiting for you when you get out, and certainly this is a benefit to you. But I have taken this into consideration in reviewing the Romero motion."

The trial court noted that defendant had a six and one-half year period between the strike prior and the present offenses in which he appeared to have lived a crime-free life, but wondered about defendant's drug addiction in that period and whether it was under control, and then flared up again in 2010, or if something else was going on.

The trial court again stated that the severity of defendant's criminal record was increasing and noted that the current offense was violent, a consideration it factored into evaluating the relative seriousness of defendant's criminal record.

The trial court then stated that it had also considered whether imposing a sentence under the Three Strikes law would produce an unjust result, and noted that the effect of the serious felony prior (§ 667, subd. (a)) was separate from the Three Strikes law and not something the trial court had "control over."

The trial court then ruled, "Based upon all of those factors, having reviewed all of them in their entirety, and looking at the factors as a whole, balancing the rights of the defendant and the interest of society, the Court determines that the defendant does not fall outside the spirit of the three-strikes law in whole or in part." Accordingly, the trial court denied defendant's motion and then sentenced him.

DISCUSSION

Defendant contends the trial court abused its discretion by denying his motion to dismiss his strike prior conviction. We disagree.

"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Defendant has the burden of demonstrating an abuse of discretion and, in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) Even if we might have ruled differently in the first instance, we will affirm the trial court's ruling as long as the record shows the trial court "'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law.'" (Id. at p. 378.) An exercise of discretion to strike a prior conviction pursuant to section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant's constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts "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." (People v. Williams (1998) 17 Cal.4th 148, 161.) There is a " 'strong presumption' [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation." (In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be "extraordinary" for a career criminal to be deemed to fall outside the scheme of the three strikes law. (Carmony, at p. 378.)

The trial court's ruling affirmatively shows that the trial court reviewed defendant's present felony, prior strike, background, character, and prospects. Thus, there is no indication that the trial court failed to consider any relevant information before it that would render defendant's circumstances extraordinary. Defendant understandably emphasizes that he was not sent to prison for his strike prior, the strike prior was for a threat and not actual violence, he had strong support from his family and ex-girlfriend, he obtained his high school equivalency certificate, and the victim was not injured. However, we do not reweigh the factors. (See Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, defendant has failed to overcome the " 'strong presumption' [citation] that the trial judge properly exercised his discretion." (In re Large, supra, 41 Cal.4th at p. 551.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.


Summaries of

People v. Juarez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 26, 2012
E052109 (Cal. Ct. App. Jan. 26, 2012)
Case details for

People v. Juarez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HUGO ERNESTO JUAREZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 26, 2012

Citations

E052109 (Cal. Ct. App. Jan. 26, 2012)