Opinion
B161609.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. FLONZELL LEWIS, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
Flonzell Lewis appeals from the judgment entered upon his conviction by jury of forcible rape, oral copulation of a person under the age of 16 by a person over the age of 21, forcible sexual penetration by foreign object, sexual penetration by foreign object of a person under the age of 16 by a person over the age of 21, and committing a lewd act upon a child 14 or 15 years of age who is at least 10 years younger than the defendant (Pen. Code, §§ 261, subd. (a)(2), 288a, subd. (b)(2), 289, subds. (a)(1), (i), 288, subd. (c)(1)), and upon his admission of two prior convictions within the meaning of the three strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and one prior serious felony conviction (Pen. Code, § 667, subd. (a)). He was sentenced to prison for 25 years to life, with a five-year prior serious felony conviction enhancement.
Appellant contends (1) that the admission of inconclusive DNA evidence was more prejudicial than probative and requires reversal; (2) that his prior convictions must be stricken because the use of juvenile adjudications under the three strikes law is unconstitutional under Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (Apprendi ); (3) that juvenile adjudications of serious offenses must be submitted to a jury to be considered priors under Apprendi; and (4) that the trial court abused its discretion in denying his request to strike one of his prior strike convictions. We affirm.
FACTS
The evidence established that on January 25, 2002, 15— year-old L. F. (L.) was a resident of the Booth Memorial Center (Booth), a home for abused or neglected children. She had been at Booth for about a month, having previously lived in Fontana, and was not familiar with Los Angeles. That evening, Colvena C., another Booth resident, asked L. if she wanted to go to a party. L. left Booth without permission and traveled by bus to South Los Angeles with Colvena and Lenora Y., a friend of L.s who was also a Booth resident. They went to a house next door to that of either Lenoras or Colvenas boyfriend, where several men, who were members of the Broadway Crips gang, were smoking marijuana and displaying guns. L. wanted to leave but had no money or other means of transportation, and she spent the night in the living room, where she watched a movie and fell asleep.
The next morning, appellant and several other individuals arrived at the house. L. spoke with appellant, who introduced himself and told her he was the father of the baby to be born to L.s cousin. Appellant grabbed L.s waist and moved her to the side of the house, pushing her against the wall. Although she tried to push him away, he unzipped his pants, pulled out his penis, began "swinging" it, and told her it was "calling [her] name." Appellant tried to unzip and remove L.s pants, but she yelled for Lenora, who came over to her and enabled her to get away.
After about an hour of playing football outside, L. was summoned to the residence by Colvenas boyfriend, who was looking for Colvena. L. then went into a back room to put on makeup. Appellant followed her in and jammed a vacuum cleaner against the door to keep the door shut. She asked what he was doing. He said, "What does it look like," and asked if she was a virgin. When she said she was, he pushed her onto the bed and ordered her to take off her pants. She did so because she was afraid. Appellant placed his finger and then his tongue inside her vagina, licked her breasts, and placed his penis inside her vagina. She did not consent to any of these acts. Although she cried and screamed for help, no one came to her aid. Finally, after 15 to 20 minutes, appellant permitted her to go to the bathroom, and from there she ran out of the house and down the street, barefoot. Lenora and Colvena joined her, and she told them appellant had raped her.
While L. was waiting for Lenora and Colvena to return so she could leave, appellant drove by and asked, "Do you want your shoes back, bitch[?]" He threw one of them at her, and started to get out of the car. She pushed him, grabbed her other shoe, and called him a rapist. Appellant replied that she was a "lying ass bitch" and told her, "You know you wanted it." A while later, appellant drove by again, called her a "bitch," and pointed his finger at her, simulating a gun. She believed he wanted to kill her.
The three girls took the bus back to Booth. Lenora and Colvena told L. not to report the rape because appellants friends would probably "jump" them because she had told on him. However, later that day, a supervisor noticed that L. was uncharacteristically sad and withdrawn, and L. told her that she wanted to go to the hospital because she had been raped. The supervisor called the police. L. reported what had occurred, but told the police that appellant removed her pants because she was afraid they would not believe her if she said she had removed them herself. She identified appellants photograph from a photographic lineup, stating that his name was "Flyzel," which was his nickname.
At the hospital that evening, an examination of L. disclosed tears and bruising on her hymen, on the labia minora, and near her rectum. The injuries were consistent with penile penetration. Internal and external vaginal swabs, rectal swabs, and swabs of both breasts were taken. The sexual assault nurse examiner who took the swabs testified that the breast swabs were taken of the areola area and the surrounding tissue, including about half of each breast. A blood sample was obtained from appellant.
Dr. Louis Maddox, the laboratory director at Cellmark Laboratory, testified that deoxyribonucleic acid or DNA testing was performed on a sample in the amount of 50 microliters, which he described as approximately a drop, which was labeled "right breast swab extract." DNA testing was also done on the sample provided by appellant. A DNA profile was developed from each sample. Dr. Maddox explained that DNA can be obtained from epithelial or skin cells, saliva, semen and other parts of the body, and that epithelial cells and white blood cells from the mouth may be found in saliva. The type of cells, e.g., saliva, blood, or skin, contained in the breast swab sample was unknown. The DNA profile obtained from any type of cell from a given individual would be the same.
The laboratory performed P.C.R. or polymerase testing, in which the laboratory uses chemicals and reagents to amplify specific areas of DNA. P.C.R. testing involves three steps, extraction, amplification, and analysis of the amplified sections of DNA. The goal of the extraction procedure is to remove the DNA from the center of cells. Dr. Maddox testified, "We want to pop open the cell to release the D.N.A. [P] We performed what is known as a differential extraction. This is a technique whereby we can attempt to separate the non-sperm cells from the sperm cells so — the non-sperm cells being the skin cells [or] the white blood cells. Anything except the sperm cells."
The prosecutor asked, "When you are referring to sperm cells, does that mean sperm as we commonly think of it, coming from a man, necessarily, or is it a term of art?" Dr. Maddox replied, "We are attempting to — yes, we are attempting to isolate sperm cells which come from males. The extraction procedure, the way that it is performed, you actually can have some minimal carry-over between the fraction. The reason this can occur is, whenever we have our sample which is submitted to us, we add certain chemicals to the sample. This will pop open all the non-sperm cells. We then spin the tube and pellet the sperm cells to the bottom. The sperm cells have a thick outer surrounding which cannot pop open. Within the liquid of the sperm cells is where we would have the non-sperm fraction D.N.A. We will remove almost all of this liquid and put it into a separate tube and this tube will be continued in the process. Now we will refer to it as a non-sperm fraction. [P] . . . We will then add harsher chemicals to the sperm fraction then, and it will pop open the sperm cells and then we will be able to continue through the D.N.A. testing process to develop a D.N.A. profile."
DNA testing of the non-sperm fraction obtained from the right breast swab established that the DNA profile matched that of the sample obtained from appellant; appellant could not be excluded as the source of DNA obtained from that fraction. The frequency for this DNA profile within the African-American population, of which appellant was a member, was one in 41 billion unrelated individuals; it would appear in one in 220 billion Caucasians and one in 850 billion Hispanics. There was insufficient material to conduct a comparison on the sperm fraction obtained from the breast swab except that it was determined to have male DNA.
On cross-examination, Dr. Maddox testified that a persons saliva could be deposited on the body of another individual if the first person were arguing or "ranting and . . . raving." He stated that he would expect only minimal cellular transfer if a person with sweaty hands and body threw a football to another individual who caught it against her chest or if a person rubbed against another person.
Appellant provided a false name and date of birth when he was arrested.
Testifying on his own behalf, appellant, who was 32 years old at the time of the offenses, denied raping or having sex with L. He claimed that he was a barber and came to the location to cut hair. He found L. and her friends sitting in his car when he finished. They asked for a ride, but he refused. He then found that $ 5 was missing from his glove compartment. He confronted L. in the back room of the residence and took her shoes as "collateral" until she gave the money back, but returned them without recovering the money. He was upset and acknowledged that he may have called her a bitch. She told him, "Thats all right. Somebody going to be in jail," and accused him of raping her.
In rebuttal, a police detective testified that after appellant waived his constitutional rights, he gave a different version of events regarding the $ 5 and L.s shoes. Appellant stated that the false accusation of rape was a conspiracy against him by his friends.
DISCUSSION
I. The trial court did not abuse its discretion in admitting evidence of the sperm fraction which resulted in an inconclusive DNA analysis.
Prior to trial, appellant argued that evidence that an inconclusive DNA test resulted from analysis of the sperm fraction obtained from the breast swab was prejudicial and irrelevant. The trial court stated that the prosecution often presented evidence of an investigation that failed to produce results, indicating that the presence of an insufficient sample would explain to the trier of fact why such a substance had not been tested, and it concluded that the presence of sperm might be relevant as tending to corroborate the victims testimony that penetration or ejaculation occurred even if the sample could not be linked to appellant. The court observed, "After all, it is somewhat benign in the sense that it cant be connected to [appellant] if there was an insufficient sample for testing."
Counsel raised the DNA issue again prior to trial. The prosecutor argued that the presence of sperm was relevant, but stated, "In speaking with the [Los Angeles Police Department] scientific services individual, my understanding, even though this is characterized as a sperm fraction, per se, it doesnt necessarily indicate an actual sperm." The trial court asked what it did indicate, and the prosecutor replied, "A portion that is like a male fraction. . . . My ambiguous understanding is that it is not necessarily indicative of sperm itself. It is phrasing they used to describe a male fraction." The trial court suggested that the prosecutor clarify the matter with her witness and discuss it with defense counsel "so that, if he wants to raise this matter, he can. If you determine that the sample doesnt include sperm, then we have a non-issue." No further objection or discussion of the matter appears.
Appellant contends that the admission of the evidence of the sperm fraction that did not yield a DNA profile was an abuse of discretion. He argues that evidence that sperm was collected from L. was insufficiently probative on the issue of whether penetration or ejaculation occurred, and that the evidence that efforts to develop a DNA profile from that sample were fruitless, which was seemingly beneficial to him, was irrelevant. He asserts that when this evidence was presented with the evidence regarding the non-sperm sample, it created the prejudicial inference that appellant was the probable donor of the sperm fraction as well as the nonsperm fraction. Appellants claim that reversal is thus required lacks merit.
Relevant evidence is that which has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "Evidence is substantially more prejudicial than probative . . . if, broadly stated, it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome [citation]." (People v. Waidla (2000) 22 Cal.4th 690, 724, 996 P.2d 46.) The trial court has broad discretion in determining the relevance of evidence and in ruling on an Evidence Code section 352 issue, and its determinations will be upheld absent an abuse of that discretion. (People v. Cash (2002) 28 Cal.4th 703, 727; People v. Waidla, supra, at pp. 723-724.)
The trial court ruled on the issue as presented by counsel prior to trial, and no additional objections were lodged at the time Dr. Maddox testified. The trial court was within the sound exercise of discretion in ruling that evidence of a sperm fraction, although it yielded no conclusive DNA profile other than that it was male DNA, was relevant and had substantial probative value. Moreover, because the DNA in the nonsperm fraction in the breast swab sample matched that of appellant, it corroborated L.s testimony as to what occurred during the sexual assault perpetrated by appellant, and thus the evidence that a sperm fraction was found in the sample was not unduly prejudicial within the meaning of Evidence Code section 352. "Evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (People v. Branch (2001) 91 Cal.App.4th 274, 286.) That is not the case here. The trial court did not abuse its discretion in admitting this evidence.
In any event, any error in the admission of the evidence would be harmless. The prosecutor did not mention the evidence of the sperm fraction at all in her argument. In discussing the evidence that corroborated L.s testimony, she stated, in part, "The corroboration comes from the D.N.A. on [L.]s breast. . . . The D.N.A. that matches this defendant. Out of African-Americans, one out of 41 billion. [P] . . . [P] The other witnesses testimonies are corroboration. The physical evidence of the trauma inflicted upon Lodonia is corroboration. The defendants D.N.A. on [L]s breast is corroboration." She later stated, "On January 26, [L] said this defendant licked [her] breasts. She had no way of knowing that, in April, four months later, this defendants D.N.A. would come back on her breasts, it would be a match to him one out of 41 billion. . . . There was only the defendants D.N.A." Defense counsel attempted to show that the appearance of appellants DNA in the nonsperm factor in the breast swab sample could have resulted from contact during an argument or during the football game and that someone else might have raped L., and he clearly pointed out that the sperm fraction had not been matched to anyone.
As the parties agreed, the case revolved around the determination of L.s credibility. This was not a case where evidence of a sperm fraction, or the existence of a DNA match at all, was crucial to the verdict. As the prosecutor pointed out, a great deal of other evidence corroborated L.s testimony that appellant was her assailant. (Cf. People v. Venegas (1998) 18 Cal.4th 47, 94, 954 P.2d 525.) On this record, it is not reasonably probable that appellant would have obtained a more favorable result in the absence of evidence of a sperm fraction with an inconclusive DNA profile. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
II. Appellants juvenile adjudication of robbery was properly considered as a strike.
The information alleged that appellant sustained two robbery priors within the meaning of the three strikes law, one of which was a juvenile adjudication suffered in 1985. Appellant waived his constitutional rights, including his right to a jury trial or court trial, on the issue of the priors and admitted that he suffered a conviction of robbery in 1990 and a "conviction" of robbery in 1985. At sentencing, the trial court imposed concurrent third-strike sentences of 25 years to life on three counts, staying the sentence on the remaining two counts.
In two related contentions, appellant argues that the finding on the prior juvenile adjudication must be stricken because the use of a juvenile adjudication for three-strikes purposes is unconstitutional under Apprendi, supra, 530 U.S. 466, and that juvenile adjudications of serious crimes "must be submitted to a jury to be priorable under Apprendi." We do not agree with respondents assertion that the matter is waived for lack of objection on this ground in the trial court, because an unauthorized sentence may be challenged absent objection. (People v. Scott (1994) 9 Cal.4th 331, 354, 885 P.2d 1040.) However, appellants contentions lack merit.
In Apprendi, supra, 530 U.S. at page 490, the United States Supreme Court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe ), the Ninth Circuit Court of Appeals, in a divided opinion, held that since the defendant had not been given the right to a jury trial when he was adjudged a juvenile delinquent, the use of the prior juvenile adjudication violated Apprendi.
Even assuming the Apprendi principle applies to the use of a qualifying three strikes prior conviction, despite Apprendis clear language "other than the fact of a prior conviction" (Apprendi, supra, 530 U.S. at p. 490), appellant was in fact afforded the right to have a jury determine the question of whether he sustained a prior qualifying conviction under the three strikes law. He waived jury trial on that issue, as was his right. (See People v. Vera (1997) 15 Cal.4th 269, 274, 934 P.2d 1279.) The procedure here was thus unlike that in Tighe, where, under the federal statute at issue, the district court made the finding that the defendant had suffered the prior juvenile adjudication. In contrast, under the three strikes law a qualifying prior conviction must be pleaded and proved beyond a reasonable doubt (Pen. Code, §§ 1170.12, subd. (a), 667 , subd. (c); People v. Tenner (1993) 6 Cal.4th 559, 566, 862 P.2d 840), and the defendant has a statutory right to jury trial on the issue of the prior conviction (Pen. Code, § 1025, subd. (b)).
Appellant argues, however, relying on Tighe, that a juvenile adjudication that was obtained without benefit of jury trial is not a prior conviction under Apprendi and therefore does not fall within Apprendis prior conviction exception. We disagree.
The majority opinion in Tighe explained that the rationale behind the rule excepting prior convictions from the Apprendi requirement is that, "unlike virtually any other consideration used to enlarge the possible penalty for an offense, . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Jones v. United States (1999) 526 U.S. 227, 249, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (Jones ).) The Tighe majority stated, "Thus, Jones recognition of prior convictions as a constitutionally permissible sentencing factor was rooted in the concept that prior convictions have been, by their very nature, subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial." (Tighe, supra, 266 F.3d at p. 1193.) The majority concluded, "Apprendis narrow prior conviction exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt." Since the defendants juvenile adjudication was not obtained by means of a jury trial, its use violated Apprendi. (Tighe , supra, at pp. 1194-1195, fn. omitted.)
In Apprendi, the court referred to "both the certainty that procedural safeguards attached to any fact of prior conviction, and the reality that [the defendant] did not challenge the accuracy of that fact in his case ._._._." (Apprendi , supra, 530 U.S. at p._488.)
We do not find the majority opinion in Tighe persuasive. Appellant asserts that, under Tighe, "the defendant must either have the conduct underlying the juvenile case submitted to his present jury, or must be afforded a jury trial in juvenile court for serious offenses in the first instance." Contrary to appellants assertion, however, Apprendi does not require that the trial court submit to the jury in the instant case the "actual conduct underlying the prior juvenile adjudication," but requires only that it submit to the jury the "fact that increases the penalty for a crime beyond the prescribed statutory maximum" (Apprendi, supra, 530 U.S. at p. 490), here the existence of a prior qualifying conviction.
We are not bound by lower federal court opinions, even as to federal questions. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3, 885 P.2d 887.)
Moreover, a jury trial in the prior juvenile adjudication is not a prerequisite to its constitutionally permissible use as a prior conviction in the instant case. It is well established that there is no constitutional right to trial by jury in a juvenile proceeding. (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545, 29 L. Ed. 2d 647, 91 S. Ct. 1976.) Thus, the dissenting judge in Tighe reasoned, "In my view, the language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a jury trial. For juveniles, it does not. Extending Jones logic to juvenile adjudications, when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement." (Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).)
Another federal appellate court refused to follow Tighe, explaining, "The Supreme Court stated in Apprendi that prior convictions are excluded from the general rule because of the certainty that procedural safeguards, such as trial by jury and proof beyond a reasonable doubt, undergird them. [Citation.] The Court went on to state that there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, on the one hand, and accepting the validity of findings of facts by judges that are subject to a lesser standard of proof, on the other. [Citation.] We think that while the Court established what constitutes sufficient procedural safeguards (a right to jury trial and proof beyond a reasonable doubt), and what does not (judge— made findings under a lesser standard of proof), the Court did not take a position on possibilities that lie in between these two poles. In other words, we think that it is incorrect to assume that it is not only sufficient but necessary that the fundamental triumvirate of procedural protections, as the Ninth Circuit put it, underly an adjudication before it can qualify for the Apprendi exemption." (U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032 (Smalley ).)
The court in Smalley continued, "We do not think, moreover, that Jones meant to define the term prior conviction for constitutional purposes as a conviction that has been established through procedures satisfying fair notice, reasonable doubt and jury trial guarantees. [Citation.] We read Jones instead to mean that if prior convictions result from proceedings outfitted with these safeguards, then they can constitutionally be used to increase the penalty for a crime without those convictions being submitted and proved to a jury. Our confidence in this reading is bolstered by the fact that in explaining the exception for prior convictions, the Apprendi court itself talks about only the right to a jury trial and proof beyond a reasonable doubt. We think it notable, moreover, that Apprendi does not even refer to the language in Jones, quoted above, upon which the Tighe court based its conclusion." (Smalley , supra, 294 F.3d at p. 1032.)
The Smalley court concluded that a juvenile adjudication is sufficiently reliable to come within the Apprendi exception for prior convictions without offending due process, because it encompasses the constitutional rights to notice, counsel, confrontation and cross-examination, and the privilege against self-incrimination, and it must be based on proof beyond a reasonable doubt. (Smalley, supra, 294 F.3d at p. 1033.) Division Four of this court has relied upon similar reasoning in arriving at the same determination. (People v. Bowden (2002) 102 Cal.App.4th 387, 392-394.) In accordance with this more persuasive authority, we reject appellants contentions and conclude that the three strikes sentence was properly imposed based, in part, upon his prior juvenile adjudication.
III. The trial court did not abuse its discretion in declining to strike appellants juvenile adjudication under Penal Code section 1385.
Appellant contends that the trial court abused its discretion in refusing to strike one of his prior strike convictions, the juvenile adjudication. Although, again, we reject respondents claim that the issue is not reviewable on appeal (People v. Myers (1999) 69 Cal.App.4th 305, 309-310), appellants contention is without merit.
Prior to sentencing, defense counsel filed a written request that the trial court exercise its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628 to strike appellants prior juvenile adjudication in the interest of justice. Counsel stated that appellant, then 33 years of age, came from a dysfunctional single-parent family, had been in foster care for three years, did poorly in school, dropped out of high school, and had not worked regularly, and his association with undesirable peers led to his involvement in criminal conduct. Counsel argued that the juvenile robbery adjudication was a simple street robbery involving use of a toy gun when appellant was 16 years old, in which the prosecutor had not requested a fitness hearing. Counsel asserted that use of the juvenile adjudication as a strike was tantamount to cruel and unusual punishment.
The trial court considered the probation report, which disclosed that appellants juvenile history commenced in 1981, when he was not quite 12 years old, with a sustained petition for receiving stolen property. Less than two years later a petition was sustained for burglary, and he was placed in the camp community for one year. The following year he was placed in the camp community for three years after a petition was sustained for vehicle theft. The next year, in 1985, a petition was sustained alleging that appellant committed robbery, the strike prior, as well as attempted robbery, and he was committed to the California Youth Authority for seven years. In 1990, as an adult, he was convicted of robbery, the other strike prior, and vehicle theft and was sentenced to prison for four years. In 1996, he was convicted of receiving stolen property and placed on probation, which was subsequently revoked. The probation report indicated that while he was on probation he "incurred multiple violations for new arrests," and one violation report indicated that he "was sanctioned in the county jail for harassing a female deputy." In 1997 he was convicted of inflicting corporal injury on a spouse or cohabitant and served time in county jail. In 1998 he was convicted of disorderly or lewd conduct and falsely representing himself to a peace officer and was placed on two years summary probation.
Appellant informed the probation officer that he had obtained his G.E.D. while in prison and had attended a beauty school, and that he had been employed as a barber.
L.s counselor at the Booth Memorial Center informed the probation officer that the victim was "very traumatized" by the rape and feared that appellant was going to kill her, and that after the offense her behavior "dramatically changed," resulting in her acting out in anger and her placement in Los Padrinos Juvenile Hall.
The trial court stated, "I have read your moving papers. I realize the first of the violent matters occurred in 1985 and the second in approximately 1990. [P] Where there is, as in this case, 17 years between the adjudication and the [current] conviction, that is a factor I considered. The fact that he was a juvenile would be another factor to consider. However, in looking at his criminal history, it is extensive and it goes back 21 years, including and in addition to the two robberies, theft related offenses, lewd conduct and infliction of corporal injury on a spouse or cohabitant. [P] From what I could tell from the reading of the legal file, the only substantial period in which Mr. Lewis did not suffer some kind of arrest was when he was confined to prison on his second robbery."
The trial court outlined appellants juvenile history, observing that it "begins at the age of 13," and stated, "Obviously the juvenile courts intervention did not have any effect because he was then in 1990 convicted once again of robbery. Then there were violations [for receiving stolen property] in 1996. [Spousal abuse] in 1997 and disorderly conduct in 1998. [P] I have to look at his first robbery adjudication in the context of his total history. It is clear that it is not remote because it was followed by an unending series of criminal acts and convictions."
The trial court continued, "This offense is another violent offense. It involves a youngster of 15. There is nothing about the circumstances of the present offense that would mitigate in terms of the appropriateness of the court exercising discretion. I think it would be an abuse of discretion if the court were to strike one or more of his prior violent felonies in light of all of the circumstances."
Defense counsel again argued that appellant had lacked guidance, leading him to associate with "undesirable people which caused him to get involved in a juvenile matter," that the robbery that was the subject of the juvenile adjudication involved a toy gun and that he believed "the defendant was cognizant not to use a real gun," although the victim did not know it was a toy, and that the prosecution did not feel the matter was serious enough to warrant certifying appellant as an adult. The trial court responded, "Or maybe he couldnt get his hands on a real one. We will never know. It looks like that case involved more than one victim. Multiple victims."
The trial court concluded, "The court can sympathize with someone who has not had the easiest of upbringing, but it certainly wouldnt cause the court to suspend the law and use solely sympathy as a factor in granting Romero relief. [P] It is clear to the court that there were many efforts made early before he had the robbery and attempted robbery adjudication to rehabilitate him, starting at age 13. Obviously the efforts of the juvenile court were not successful. He was not amenable. He certainly didnt respond to the rehabilitative efforts of the juvenile court."
The standards for evaluating the trial courts determination of a motion to strike a prior conviction in furtherance of justice under Penal Code section 1385 are well established. The trial court must take into consideration the defendants background, the nature of his current offense, and other "individualized considerations." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) "Preponderant weight must be accorded to factors intrinsic to the [three strikes] scheme, such as the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (People v. Williams (1998) 17 Cal.4th 148, 161, 948 P.2d 429.) In deciding whether to strike a prior conviction, and in reviewing a trial courts ruling, "the court in question 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 schemes 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." (Ibid.) The defendants criminal history is among the relevant factors to be considered. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979, 928 P.2d 1171.)
"The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . 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." (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978, citation omitted.)
Contrary to appellants assertion, the trial court took into account the relevant factors in arriving at its decision. The trial court considered both the written and oral arguments of defense counsel. The court expressly discussed the fact of appellants unfortunate early life, but discounted it as a reason for exercising relief because appellant had been afforded many opportunities for rehabilitation through the juvenile system, beginning at a very early age, but nevertheless failed to reform. Appellant persisted in committing criminal acts despite grants of probation and incarceration, and his offenses, both past and current, involved violence against individuals. The current offenses were far more egregious than the petty theft of which the defendant was convicted in People v. Bishop (1997) 56 Cal.App.4th 1245, a case cited by appellant. The trial courts implied determination that appellant was not outside the spirit of the three strikes law was within the sound exercise of discretion. (People v. Myers, supra, 69 Cal.App.4th at p. 310; People v. Cline (1998) 60 Cal.App.4th 1327, 1336-1337.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P.J., and DOI TODD, J.