Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC061648A
Margulies, J.
Under a negotiated plea bargain, defendant Michael Breck Lemon pleaded no contest to driving under the influence of alcohol and admitted a prior felony strike allegation. He appeals from the trial court’s ensuing denial of his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) asking the court to exercise its discretion to dismiss the prior strike allegation. Defendant contends that the trial court abused its discretion by denying his Romero motion based on a factual finding that is not supported by the evidence. We find no abuse of discretion, and affirm the judgment.
I. BACKGROUND
Defendant was charged by information with driving under the influence (Veh. Code, § 23152, subd. (a); count 1) and driving with a blood alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b); count 2). The information alleged a prior violation for driving under the influence within the last 10 years (Veh. Code, § 23550.5, subd. (a)(1)). The information further alleged that defendant was ineligible for probation (Pen. Code, § 1203, subd. (e)(4)), had served a prior prison term (Pen. Code, § 667.5, subd. (b)), and had suffered a prior conviction for second degree robbery (Pen. Code, § 212.5, subd. (c)), which is a strike pursuant to Penal Code section 1170.12, subdivision (c)(1). Pursuant to a negotiated plea bargain, defendant pleaded no contest to count 1 and admitted the prior driving under the influence conviction, prior prison term enhancement, and the prior strike. The trial court dismissed the remaining allegations in the information.
A. Facts
The following offense summary is drawn from the probation report: “On December 24, 2005, [defendant] was observed to be driving his vehicle erratically, at speeds above the posted speed limit, and not using his turn signals prior to making lane changes. An officer activated his emergency lights in an attempt to effect a traffic stop. [Defendant] continued to drive even after the officer activated his siren, along with his emergency lights, while driving directly [behind] him. [Defendant] did not stop until he arrived at his home and parked in the driveway. [Defendant] smelled of alcohol and failed field sobriety tests. His blood alcohol level was later determined to be 0.18/0.18 percent.”
B. Romero Motion
On February 2, 2007, defendant filed a Romero motion asking the court to exercise its discretion to dismiss the prior strike allegation.
1. Defendant’s Moving Papers
Defendant admitted his culpability in two prior felony convictions and nine prior misdemeanor convictions, in addition to the current offense. In mitigation, he cited the long history of alcohol problems both in his own life and in his family history. Defendant’s reliance on alcohol increased with the deaths in 1995 of his mother and grandmother within a week of each other. Defendant had his greatest problems with the law in the period between 1995 and 2000. Although he was not offered any extended period of treatment for his alcohol problem during this time, defendant was enrolled in the Jericho Project for four months in 1999. However, defendant ultimately decided that the Jericho program did not go to the root of his problem, and he continued to drink.
In 2000, defendant was convicted of his strike offense, second degree robbery. The victim owed defendant money and defendant decided to take it from her by force by grabbing her wallet out of her hand. The 18 months defendant served in state prison for this offense was a life changing experience for him. After being released in 2002, defendant married, had a child, and began a period in which he was steadily employed in positions of increasing responsibility in the electrical contracting field. At the time of his arrest in December 2005, defendant was in a supervisory position as a manager of Johnston Electrical in San Jose and was considered by his supervisor to be an integral part of the smooth running of the company’s operations.
On December 24, 2005, defendant attended a required company holiday party and drank alcohol for the first time in many years. He drank too much and drove home, resulting in the current offense. Very soon after his arrest, defendant sought help for his alcohol problem. He began attending weekly Alcoholics Anonymous meetings, sought psychiatric help for depression, and was accepted onto the waiting list for Project 90’s Working Man’s Program.
Dismissal of the strike prior was supported by the following factors: (1) the nonviolent and relatively minor nature of the current offense; (2) the maximum sentence to which defendant was exposed, seven years, was excessive in relation to the gravity of the current offense even without considering the strike prior; (3) defendant admitted and was seeking treatment for his alcohol problem, which was involved in nearly all of his previous crimes; (4) more than five years had passed between defendant’s prior and current offenses; and (5) defendant’s personal prospects were good in that he had a good job that he excelled at and had a family to take care of.
2. The People’s Opposition
The People noted that defendant was stopped at 12:30 a.m. on December 24, 2005, when he was observed driving 68 miles per hour in a 40-mile-per-hour zone. He continued driving for approximately one-quarter mile despite the police officer’s lights and siren. His blood alcohol level was more than twice the legal limit. None of the potential circumstances in mitigation listed in California Rules of Court, rule 4.423 applied to defendant. Although he waived a preliminary hearing, defendant waited until the day of jury trial to admit wrongdoing.
On the other hand, a few aggravating factors under rule 4.421 of the California Rules of Court did apply: Defendant’s conduct indicates a serious danger to society as evidenced by his 2000 conviction for robbery and his repeated DUI offenses; he had numerous prior convictions; he had served a prior prison term; and his prior performance on probation or parole was unsatisfactory.
Citing defendant’s numerous prior convictions for DUI, the recency of his strike prior, and the fact that he had continued to reoffend, the People argued that a stronger message needed to be sent to him. The People recommended a “ ‘second strike’ ” term of four years in state prison.
3. Probation Report
The probation officer informed defendant that she believed a residential treatment program, such as Daytop Village, would be more appropriate than Project 90 considering his history of DUI convictions. According to the officer, defendant believed that the program was too expensive and that because he was likely to be committed to state prison regardless of whether he was in treatment he preferred to continue working in order to leave his wife and daughter with as much money as possible. The probation officer reported that defendant “does not appear to be significantly motivated to participate in treatment at this time.” Defendant had left the Jericho Project treatment program in 1999, according to the officer, because he found the program was “too strict” and did not feel the program helped those who need help. The probation officer stated that defendant “believes that he does not specifically have a problem with substance abuse but has a problem functioning in society.”
By the time of his sentencing hearing, defendant’s counsel reported that defendant had been accepted into the Daytop Village program and was prepared to go forward with it.
Defendant’s criminal history included the following convictions: (1) misdemeanor hit-and-run accident in 1983 for driving his car into the front of a convenience store, with probation violations following conviction; (2) writing checks with insufficient funds in 1984, followed by probation violations and failure to make restitution; (3) DUI convictions in 1995, 1996, and 1998; (4) misdemeanor theft and defrauding an innkeeper in 1997; (5) driving with a suspended license in 1998; and (6) second degree robbery in 2000 for grabbing a woman’s wallet from her hand as she left a convenience store. In connection with defendant’s 1998 arrest for DUI, police also found methamphetamine in the car. At the time of his 2000 arrest for robbery, defendant was found to be in possession of a crack pipe.
Probation recommended a state prison term.
4. Sentencing Hearing
At the sentencing hearing, the trial court interrogated defendant about statements in the probation department’s report that, in the court’s view, showed that defendant lacked any sincere interest in serious alcohol abuse treatment and did not believe he had a substance abuse problem. The court suggested, among other things, that defendant had gotten himself approved for the Daytop Village program solely to avoid prison. The court concluded: “I don’t think that [defendant] is sincere. I don’t think it would be appropriate to put him in treatment for his sixth DUI.”
The trial court denied defendant’s Romero motion and sentenced him to the middle term of two years, doubled to four years due to the prior strike. This timely appeal followed.
II. DISCUSSION
Defendant contends that the trial court abused its discretion by denying his Romero motion based on a factual finding that is not supported by the evidence. Specifically, defendant maintains that no substantial evidence supports the trial court’s apparent belief that he was not sincere about seeking treatment.
The purpose of the “Three Strikes” law is to provide longer sentences to, and greater protection to the public from, habitual or “ ‘revolving door’ ” criminals. (See People v. Strong (2001) 87 Cal.App.4th 328, 331–332.) Defendant had the burden of convincing the trial court that the Three Strikes statute should not be enforced against him because the nature and circumstances of his present offenses and prior convictions, and the particulars of his background, character, and prospects, took him outside the spirit of that law. (People v. McGlothin (1998) 67 Cal.App.4th 468, 473–474.) The striking of a prior strike conviction is not to be done lightly. It is an extraordinary exercise of discretion comparable to the setting aside of a judgment of conviction after trial. (Id. at p. 474.) We review the trial court’s decision to deny a Romero motion deferentially for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) 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.)
Defendant relies on People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff). Cluff, who had suffered three prior strike convictions, was convicted of failing to annually “update” his sex offender registration within five days of his birthday. (Id. at p. 994.) The annual registration requirement had been added to the sex offender registration statute five years after Cluff’s release from prison on his last offense. (Id. at p. 994.) The Court of Appeal characterized Cluff’s new offense as a purely technical violation of the registration requirement, noting that Cluff had properly registered his address upon his release from prison and was still residing at his original address when he was arrested for failing to update his registration. (Ibid.) Despite this, the trial court had denied Cluff’s Romero motion, and sentenced him to 25 years to life in prison. (Cluff, at p. 994.)
The Court of Appeal vacated Cluff’s sentence and remanded the case to the trial court to conduct a new Romero hearing. (Cluff, supra, 87 Cal.App.4th at p. 1005.) The appellate court noted that the trial court had denied the Romero motion in reliance on an unsupported inference that the new offense was not in fact a mere technical violation of a newly-revised statute, but that Cluff had knowingly and deliberately failed to update his registration for the purpose of concealing his true residence from law enforcement. (Id. at pp. 1002–1004.) After closely analyzing the evidence in the record on this point, the Court of Appeal held that no substantial evidence supported the trial court’s adverse inference, and the lower court had therefore abused its discretion by denying the motion on that ground. (Ibid.)
Cluff is distinguishable in a number of important respects in our view. First, defendant’s new offense here was not some mere technical violation of a statute that involved no significant relapse into criminal conduct or danger to the public. Drunk driving causes an enormous number of injuries and deaths in California. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 898–899.) This was defendant’s sixth DUI conviction. Repeat DUI offenders must unquestionably be considered “extremely dangerous people.” (Id. at p. 899.) We note that defendant’s grossly excessive speed, erratic driving, and refusal to pull over when the police tried to get him to stop, all added to the seriousness of his DUI offense.
Second, the record in this case does in fact support the trial court’s conclusion that defendant was not sincere in seeking help for his alcohol problem. It is undisputed that defendant had still not entered any residential treatment program by the time of his sentencing hearing, which was more than a year after the commission of his sixth DUI offense. Despite his lengthy history of alcoholism and DUI offenses, defendant had been in treatment only once before the 2005 offense. On that occasion, he found the program to be too strict, and withdrew after four months. From his release from prison in 2002 until his DUI arrest in December 2005, defendant apparently never sought treatment. Under questioning by the court, defendant did not deny telling the probation officer that he considered the Daytop Village program too expensive or that “he does not specifically have a problem with substance abuse.” Although defendant now claims that the trial court misconstrued his statements to the probation officer, he did not avail himself of the opportunity to correct the court’s alleged misapprehensions when given an opportunity to do so.
Defendant asserts that his initial hesitation about the Daytop Village residential program stemmed from the fact that he was trying to act responsibly by continuing to work and save money in order to leave his family with as much money as possible should he be sent to prison. But, when the court asked defendant to explain the probation officer’s statement that he did “not appear to be significantly motivated to participate in treatment,” defendant responded: “I answered all of the questions that she asked. I gave her all the information that she asked for. I was in there a good two and a half, three hours, speaking with her and she—her comments to me were that I was not eligible for any type of program and that she did not know why I was in her office.”
Third, the denial of defendant’s Romero motion in this case does not rest exclusively on a single factor, but is supported by the totality of the circumstances in the record. (See Carmony, supra, 33 Cal.3d at p. 379.) This included not only the evidence that defendant was not motivated to seek treatment for his alcohol problem, but also the seriousness of his new DUI conviction, the number of previous DUI and other criminal convictions defendant had suffered, the fact that he committed his new offense within a few years after serving a state prison term, and the public’s interest in being protected from the danger posed by leaving free in the community a repeat DUI offender with little proven commitment to addressing his underlying alcohol problem.
Finally, defendant here received a reasonable sentence of four years, based on doubling the two-year midterm sentence for his sixth DUI offense. This is a far cry from the situation in Cluff, where the defendant faced a sentence of 25 years to life triggered by a first-time technical infraction of a reporting statute.
Considering all of the evidence in the record, we find no abuse of discretion in the trial court’s denial of defendant’s Romero motion.
III. DISPOSITION
The judgment is affirmed.
We concur: Stein, Acting P.J, Swager, J.