Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. BA261060,
Paul M. Enright, Judge. Affirmed.
Julie Sullwold Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Steven Michael Lopez (Lopez) appeals the judgment entered following a jury trial which resulted in his conviction of six counts of second degree robbery (Pen. Code, § 211) during the commission of each of which he personally used a firearm (§ 12022.53, subd. (b)), and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and his admissions he had suffered two prior felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). The trial court sentenced Lopez to a total term of 71 years eight months to life in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Lopez contends the prosecution’s “suppression” of a police report and photographic lineup violated his constitutional rights to a fair trial, due process of law and to present a defense. He further contends the trial court erred in declining to strike both of his Three Strikes prior convictions. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that in February 2004, Lopez committed six robberies in the Highland Park area of Los Angeles.
a. The February 4th Robbery of Zulma Jimenez.
On February 4, 2004, Zulma Jimenez (Jimenez) was working as a cashier at the Der Wienerschnitzel restaurant at 5125 North Figueroa Street. At approximately 6:00 p.m., Lopez walked up to Jimenez’s window and asked her if she could make change for him. Immediately after Jimenez opened the cash register, Lopez pulled out a small, silver gun. Holding the gun in his left hand, Lopez pointed it at Jimenez and told her to “ ‘Give [him] the fuckin’ money.’ ” Afraid she would be harmed, Jimenez backed away from the register and Lopez “jumped” or pulled himself up onto the counter. While continuing to point the gun at Jimenez, Lopez reached into the cash drawer with his right hand and took out approximately $200.
After Lopez left the restaurant, police were called. Jimenez described Lopez as a man with a mustache, between 35 and 45 years of age, approximately five feet, seven inches tall and weighing approximately 160 pounds. Lopez had been wearing a baseball cap and a blue and black jacket. Jimenez had noticed nothing unusual about Lopez’s hands.
A photograph taken by Lopez’s investigator on January 27, 2005, showed the name “Shorty” and a flower tattooed on Lopez’s right hand.
On February 20, 2004, a police officer showed Jimenez a group of photographs. Jimenez identified a photograph of Lopez as that of the man who had robbed her. At trial, Jimenez again identified Lopez as the robber.
In March 2004, Jimenez told a defense investigator she was 80 per cent certain her identification of the photograph of Lopez was that of the robber. However, at trial Jimenez testified that, after having had the opportunity to see Lopez in person, she had no doubt he was the man who had robbed her. Defense counsel asked, “And the man that was in the photograph [that] you picked out looks very much like the man sitting in court, right?” Jimenez responded, “Yes. But it’s him. I know it’s him.”
Latent fingerprints were taken from the area surrounding the cash register. Two of the prints lifted, a print of the right ring finger and a print of the right middle finger, matched prints taken from Lopez.
b. The February 5th Robbery of Daisy Martinez.
On February 5, 2004, Daisy Martinez (Martinez) was working as a cashier at the Rite Aid Drugstore on York Boulevard. At approximately 4:30 that day, Lopez approached Martinez and said, “ ‘Give me the fuckin’ money.” Martinez looked up to see Lopez pointing a silver gun at her. When Lopez, who was holding the gun only a few inches from Martinez, again told her to give him the money, Martinez stepped back from the register and put her hands up. Frightened, Martinez watched as Lopez took approximately $40 from the cash drawer. After taking the money, Lopez jumped over the counter and left the store.
When she later described Lopez to police, Martinez indicated he was between 25 and 30 years of age, had a mustache, was approximately five feet, seven inches tall and had been wearing a jacket. Martinez had not noticed any tattoos on Lopez’s hands.
On February 16, 2004, a police officer showed Martinez a group of six photographs. Martinez identified a photograph of Lopez as that of the man who had robbed her. At trial, Martinez made an in-court identification of Lopez as the robber.
c. The February 5th Robbery of Valerie Gonzalez.
At approximately 8:15 p.m. on February 5, 2004, Valerie Gonzalez (Gonzalez) was working as a cashier at the Super A Foods store on Yosemite Drive. Lopez approached Gonzalez, asked her about “children’s formula, ” commented on how expensive it was, then got in line behind two store customers. Immediately after Gonzalez had given the customers their change, Lopez pulled out a gun with his left hand, pointed it at Gonzalez, told her to “move” and pushed her away from the register with his right hand. Afraid, Gonzalez moved back from the open cash drawer. Lopez reached into the drawer, took the five and ten dollar bills, then ran from the store.
Gonzalez believed Lopez was in his late 30’s or early 40’s and noted that he had a tattoo of a teardrop near his left eye. When, on February 19, 2004, a police officer showed her a group of six photographs, Gonzalez identified a photograph of Lopez as that of the man who had robbed her. At trial, Gonzalez again identified Lopez as the robber.
Los Angeles Police Department forensic fingerprint specialist Jeff Deacon (Deacon) went to the Super A Foods store at approximately 10:15 p.m. on the evening of the robbery. From the area surrounding the cash register where Gonzalez had been working, Deacon was able to lift a number of latent fingerprints. At least one of the latent prints matched a fingerprint taken from Lopez.
d. The February 11th Robbery of Reyna Rodriguez.
On February 11, 2004, Reyna Rodriguez (Rodriguez) was working as a cashier at the Pep Boys store at 5516 North Figueroa Street. At approximately 1:30 p.m. that day, Lopez approached Rodriguez and asked her for a “price check on an item.” Rodriguez, who was waiting on another customer, asked Lopez to wait a moment. Instead, as the cash register opened so that Rodriguez could give the customer his change, Lopez approached Rodriguez, pulled out a black gun and directed her to “go to the . . . back.” Frightened, Rodriguez complied with Lopez’s order and moved away from the register. Lopez then reached into the cash drawer and removed the money.
When police arrived, Rodriguez gave them a description of Lopez indicating he appeared to be between five feet, six inches and five feet, seven inches tall, was approximately 40 years old, wore a mustache and had a tattoo of a teardrop near his left eye.
On February 16, 2004, Rodriguez was shown a group of six photographs. She selected a photograph of Lopez as that of the man who had robbed her. At trial, Rodriguez identified Lopez as the robber.
e. The February 13th Robbery of Stephanie Chacon.
Stephanie Chacon was working as a cashier at the Sav-On store located at 5944 North Figueroa Street on February 13, 2004. At approximately 11:00 a.m. that day, Chacon was about to close her register after waiting on a customer when she saw a man’s hand reach into the cash drawer. Chacon attempted to close the drawer, then looked up and saw a silver gun being pointed at her. Frightened, Chacon screamed and ran to the store’s office. Chacon did not have a conversation with the robber and never saw his face.
Jimmy Mejia is the security officer at the Sav-On store. When he heard Chacon scream, he went to the front of the store and saw Lopez leaning over a register, reaching into the cash drawer and taking out money. When Lopez then backed away from the register, Mejia saw that he was holding a silver handgun. Lopez pointed the gun at Mejia and three or four others standing in the area, told everyone to “back off, ” then slowly left the store through the front door.
When, on February 20, 2004, a police officer showed Mejia a group of photographs, Mejia identified one of Lopez as that of the man who had taken money from the register then pointed a gun at him. Mejia described Lopez as approximately five feet, eight inches or five feet, nine inches tall and approximately 160 to 180 pounds. Lopez appeared to be somewhat “stocky” as he had been wearing a jacket. At trial, Mejia again identified Lopez as the man he had seen take money from the register.
f. The February 29th Robbery of Rosa Felix.
On February 29, 2004, Rosa Felix (Felix) was working at the Der Wienerschnitzel at 5215 North Figueroa Street. At some point between 9:00 and 10:00 p.m., Felix heard the manager, who was stepping out of the restaurant’s back door, fall. Felix looked up to see Lopez, who was pointing a silver gun in her direction, step inside the restaurant. Lopez ordered Felix to “ ‘give [him] the money and put it in a bag.’ ” Afraid for her safety, Felix ran to the cash register, took out approximately $100, put it in a bag and handed the bag to Lopez.
Lopez pointed the gun at the manager and asked him if he had any more money in the back of the restaurant. When the manager told Lopez he did not, Lopez left.
Felix stated the robber had a mustache, was approximately six feet tall and appeared to have been between 30 and 35 years of age. When, on March 1, 2004, a police officer showed Felix a group of photographs, Felix identified one of Lopez as that of the robber. At trial, Felix again identified Lopez as the man who had committed the robbery.
2. Procedural History.
A jury found Lopez guilty of six counts of second degree robbery (§ 211) and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury also found true the allegations that, during the commission of each of the robberies, Lopez personally used a firearm (§ 12022.53, subd. (b)).
After the trial court denied Lopez’s Romero motion, Lopez waived his right to a trial and admitted having previously suffered two prior felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and section 667, subd. (a)(1). The trial court sentenced Lopez to a total term of 71 years, eight months to life in prison. It imposed a $200 restitution fine (§ 1202.4, subd. (b)) and a stayed $200 parole revocation restitution fine (§ 1202.45). Lopez was awarded presentence custody credit for 365 days actually served and 57 days of good time/work time, or a total of 422 days.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
CONTENTIONS
Lopez contends: (1) “[t]he prosecution’s suppression of material exculpatory evidence violated [his] constitutional rights to a fair trial and due process of law, as well as his right to present a defense as guaranteed by the Fifth, Sixth and Fourteenth amendments” and (2) “[t]he trial court abused its discretion when it refused to dismiss the strike priors under Romero.”
DISCUSSION
1. Lopez’s constitutional rights were not violated by the prosecution’s “suppression” of material exculpatory evidence.
a. Background.
After the parties had given opening statements and Jimenez, Martinez and Felix had testified, the prosecutor informed defense counsel and the trial court that he had discovered a police report of which he had been previously unaware. The report, which pertained to the February 4th robbery of Jimenez at Der Weinerschnitzel, indicated Jimenez had described the robber as a 40 year old, five foot, six inch man weighing approximately 160 pounds and wearing a blue jacket and dark baseball cap. The officer taking the report believed Jimenez might be describing a man named Hector Ornela (Ornela) and prepared a group of six photographs, or a “six pack, ” containing Ornela’s photograph. The six pack did not contain a photograph of Lopez. When the officer showed the group of photographs to Jimenez, she did not identify Ornela, but picked a photograph of another man and stated she had picked the photograph, number three, because the man “ ‘look[ed] more familiar than the others.’ ”
In his brief, Lopez acknowledges the prosecutor “had no notice of the previous photographic lineup until after Ms. Jimenez had testified [and indicates] there is no claim that he did.” The record also establishes that, on the morning the prosecutor discovered the additional police report and photographic lineup, he immediately provided copies to defense counsel.
After receiving this information, defense counsel made a motion for a mistrial, arguing that “this is an I.D. case . . . and getting this discovery this late and not quite knowing . . . how to interpret everything, I think it’s a real problem, and I don’t think there is a cure for this count or this case.” Counsel stated, “. . . [N]ow I’m in a position, well, now do I need to go and rethink, . . . an I.D. expert and whether I should have put that expert person on? It just raises a whole series of issues [which would not have been raised] if I had this in advance . . . .”
The prosecutor responded, stating Lopez’s picture had not been in the six pack and that the report indicated Jimenez had made “no identification.” The prosecutor continued, “Although the photo identification report says, ‘I picked number three because he look[ed] more familiar than the others[, ]’ [when Jimenez was] later shown a six pack [containing a photograph] of [Lopez, she] I.D.’[d] him. Also, the defendant’s fingerprint . . . [was] found at the scene. And we’ve talked to Ms. Jimenez and have her available to come in this afternoon to ask her a few questions regarding this.”
The trial court indicated it did not believe the late discovery of the police report and photographic lineup “raise[d] that many issues.” The court continued, “The person said I picked number three because he looks more familiar. [She] doesn’t say this is the person. There’s clearly qualification. I do think it’s something the jury should be made aware of that she did say, ‘I picked number three because he look[ed] more familiar than the others, ’ and if you want to have this person interviewed by your investigator or whatever, I think all of that . . . would be appropriate. . . . [S]he could be interviewed before she testifies. You [defense counsel] can interview her by yourself.”
The trial court denied defense counsel’s motion for a mistrial but agreed to give a curative instruction explaining to the jury that “counsel was made aware of this material this morning, and that’s why . . . Ms. Jimenez was not questioned about it when she testified yesterday . . . .”
The following day, Jimenez was again called to testify. Before she did so, the trial court instructed the jury as follows: “Ladies and gentlemen, normally when a criminal case is investigated what happens is the police department interviews witnesses, goes out to the scene, they make up police reports . . . [then] present them to the district attorney. The district attorney shares those police reports with the defense attorney. [¶] Based upon these police reports, the attorneys make their opening statements, and they ask questions of witnesses. This is when the attorneys are aware of the police reports. [¶] Ms. Jimenez is currently on the stand. She testified yesterday. There was a police report involving Ms. Jimenez and another six pack that was shown to her that was not disclosed to counsel until this morning. So when counsel questioned Ms. Jimenez yesterday and when they made their opening statements, they were not aware of this report. It had not been disclosed. . . . [¶] Ms. Jimenez has been recalled to the stand. . . . [a]nd she will be questioned again by counsel.”
Jimenez then testified that on February 5, 2004, the day after the robbery at Der Wienerschnitzel, she was shown a group of six photographs. Jimenez chose photograph number three and told the officer, although she “wasn’t sure” the man depicted was the man who had robbed her, she had picked his photograph because he “look[ed] more familiar than the other ones.” Jimenez was shown another photographic lineup on February 20, 2004. At that time, she chose a picture of Lopez because she was certain he was the man who had committed the robbery. Jimenez then again made an in court identification of Lopez, stating she was sure he was the man who had robbed her.
b. Discussion.
“[T]he suppression by the prosecution of evidence favorable to an accused. . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady v. Maryland (1962) 373 U.S. 83, 87.) Evidence is material, or favorable to the accused when, “if disclosed and used effectively, it may make the difference between conviction and acquittal.” (United States v. Bagley (1984) 473 U.S. 667, 676.) In other words, “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Id., at p. 682.) “It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract.” (In re Sassounian (1995) 9 Cal.4th 535, 544, citing United States v. Bagley, supra, 473 U.S. at p. 685.)
In the present case, the evidence of a police report made the day after the robbery and indicating Jimenez viewed a photographic lineup at that time cannot be deemed to have been material. With regard to the police report, the description of the robber given by Jimenez to a police officer on February 5, 2004, is substantially identical to a description Jimenez had previously given to an officer. As to the February 5th photographic lineup, although Jimenez indicated an individual in one of the photographs “look[ed] more familiar than the others, ” she did not identify the man as the robber. The February 5, 2004, police report indicates Jimenez made “no identification.” The only individual ever identified by Jimenez as the robber was Lopez. Jimenez made positive identifications of Lopez when she viewed the second photographic lineup and again at trial. Jimenez’s identifications of Lopez were then bolstered by evidence of his fingerprints on the area surrounding the cash register.
In addition, although the police report and photographic lineup were “suppressed” in that they were neither discovered by the prosecutor nor provided to defense counsel until after Jimenez had initially testified, once the prosecutor was informed of their existence, he immediately provided copies of the report and lineup to defense counsel. Accordingly, defense counsel was given the opportunity to review the evidence and to cross-examine Jimenez regarding her statements made in the February 5th report and at the February 5th photographic lineup. Defense counsel then utilized the evidence in her closing argument to assert Jimenez’s identification of Lopez was unreliable. Defense counsel stated: “[Jimenez] was shown this series of photographs [on February 5, 2004], and she picked somebody out; apparently not the suspect who the police thought it might be but another person, number 3. And she wrote down, ‘I picked number 3 because he looks more familiar [than] the others.’ And then two weeks later she’s shown a different set of photographs. Obviously she now . . . has the impression who she picked out wasn’t correct. She’s shown another series of photographs and picked somebody else out. [¶] Why we didn’t hear this information, why the defense didn’t get this information, we don’t really know. But there’s an issue to be made on that. And one has to wonder why the police kept that from the defense [and prosecution] . . . until after [Jimenez] came in and testified. And what was interesting, too, when she came in and testified the next day, I remember noticing how different she looked. I couldn’t even tell you why; maybe it was her hair, maybe it was her outfit. There was something that looked so different about her. [¶] And when she came in that second time, she said ‘No. I’m sure.’ When she came in and we said, why didn’t you tell us about the first series of . . . photos you looked at, [she replied, ] ‘I didn’t think it was important. I wasn’t asked about it.’ That’s a perfect example of just how sort of fragile eyewitness identification is. . . .”
In view of this record, we conclude there is no “reasonable probability that, had the [February 5th police report and photographic lineup] been disclosed to the defense [prior to the beginning of trial], the result of the proceeding would have been different.” (United States v. Bagley, supra, 473 U.S. at p. 682.) The “suppression” of the report and photographic lineup did not violate Lopez’s rights to a fair trial, due process of law, or his right to present a defense.
Lopez’s assertion he was denied “a reasonable continuance to pursue the investigation of the person Ms. Jimenez first identified as ‘most familiar’ [(sic)] to Mr. Lopez in order to provide an adequate defense” is without merit. Since defense counsel did not request a continuance, the trial court cannot be faulted for failing to have granted one.
2. The trial court properly declined to strike all of Lopez’s Three Strikes prior convictions.
a. Background.
At proceedings held on January 13, 2005, Lopez moved to have one or more of his prior convictions stricken in furtherance of justice pursuant to section 1385. In arguing the Romero motion, defense counsel directed the trial court to Lopez’s age. Counsel indicated Lopez was 44 years old and, if the court were to strike even one prior, Lopez would still receive a lengthy sentence and yet have the opportunity to “get out one day when he’s much older and probably much less likely to commit this type of crime . . . .”
The prosecutor argued no strikes should be stricken, stating Lopez “has one of the most horrendous records imaginable dating back [to] ’89.” The prosecutor continued, “The original convictions are theft convictions, and then he starts to pick up felonies in – around the year 1990 where he started to get petty theft with priors, commercial burglary, and then he starts again escalating up to robberies where he’s got one of his strikes; ’96, a robbery and ’99, attempted robbery. It’s clear this defendant had received summary probation, and he’s failed. He has shown acts of violence in the past, and he’s never done well. . . . [¶] Then we look at the current offenses. Shortly after he’s paroled, he goes out and commits . . . six armed robberies . . . [¶] Clearly he’s shown he’s a danger to the community . . . .”
After noting that Lopez’s record was “very significant, ” the trial court denied defense counsel’s Romero motion.
At sentencing proceedings held on March 9, 2005, defense counsel renewed her Romero motion. She argued that, whether or not the trial court were to strike one or both of Lopez’s Three Strikes prior convictions, Lopez would be “going to prison for a very long time.” Counsel asserted, although Lopez’s present crimes were serious, they “could have been much worse.” Counsel asked the trial court to consider striking one of the strike priors on all of the counts, which would still enable the court to sentence Lopez to a term of 53 years, eight months in prison. Again noting that Lopez was 44 years old, defense counsel asked the court to impose not only a “just sentence, but a sentence that’s also compassionate.”
The prosecutor argued the trial court should refrain from striking any of Lopez’s prior convictions and asserted Lopez has an extensive criminal record, which includes convictions for battery, theft, forgery, petty theft, attempted robbery and robbery. Noting that each of Lopez’s present offenses was committed during a single month, the prosecutor stated Lopez was a “one man crime spree during the month of February 2004.”
After recognizing Lopez’s extensive prior record and the seriousness of his present offenses, the trial court indicated it believed it would be an abuse of discretion to strike both strike priors as to all counts. Accordingly, as to count one, the February 4th robbery of Jimenez, the court imposed a term of 25 years to life in prison. For Lopez’s personal use of a firearm during the offense, the trial court imposed a consecutive term of 10 years in prison and, for the findings Lopez had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), it imposed two consecutive five year terms. In total, the trial court sentenced Lopez to a term of 45 years to life for his conviction of count one.
As to the robberies alleged in counts two, four, five, six and seven, the trial court struck one of the strike priors as to each count. The court explained, “The reason the court is doing it is because the sentence that’s going to be imposed is extremely lengthy . . . . Although trauma was inflicted due to the weapon being involved, there [were] no physical injuries. Mr. Lopez didn’t inflict any injuries upon anyone.” The court then imposed consecutive terms of one-third the middle term, or two years for each of the robberies. For Lopez’s personal use of a firearm during each of the offenses, the trial court imposed consecutive terms of three years, four months.
Although the trial court indicated it was striking only one of Lopez’s two prior convictions for the purpose of sentencing on his five remaining robbery convictions, the court imposed sentences as though it had struck both prior convictions.
For his conviction of being a felon in possession of a firearm as alleged in count three of the information, the trial court imposed the middle term of two years in prison, doubled the term pursuant to the Three Strikes law, then stayed the term pursuant to section 654.
In total, the trial court sentenced Lopez to a term of 71 years eight months to life in prison.
b. Discussion.
“In Romero [the California Supreme Court] held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, ‘in furtherance of justice’ pursuant to . . . section 1385(a).” (People v. Williams (1998) 17 Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to . . . section 1385(a), or in reviewing such a 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 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.” (Id., at p. 161.)
Here, in view of the nature and circumstances surrounding Lopez’s present felony convictions, six armed robberies committed within one month while he was on parole, and his alleged priors, a robbery and attempted robbery, it can hardly be concluded Lopez falls “outside the [Three Strikes] scheme’s spirit.” (People v. Williams, supra, 17 Cal.4th at p. 161.) The Three Strikes law was devised for the “ ‘revolving door’ career criminal, ” a characterization which fits Lopez. (People v. Strong (2001) 87 Cal.App.4th. 328, 331-332.) Further, the fact that Lopez is middle-aged cannot take him outside the spirit of the law. “[O]therwise, the very factor that takes a defendant within the spirit of the law—a lengthy criminal career with at least one serious or violent felony—would have the inevitable consequence—age—that would purportedly take him outside it. Extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very statutory scheme within which he squarely falls and whose continued criminal career the law was meant to attack.” (Id., at p. 332.)
Neither do the particulars of Lopez’s background, character, and prospects weigh in his favor. Lopez’s lengthy criminal career began in 1989 and he has continued to commit criminal offenses, including forgery, battery, petty theft with a prior and robbery, on a regular basis ever since. Although Lopez, the father of two adult children and one toddler, has expressed a desire to “raise [his] kids the right way and follow the rules of parole, ” it should be noted the present offenses were committed while Lopez was on parole.
Relying on People v. Simpson (1979) 90 Cal.App.3d 919, 927 (Simpson), Lopez asserts his addictions to alcohol and cocaine must be considered as mitigating factors which reduce his culpability for his crimes. Lopez, however, acknowledges that numerous cases have distinguished Simpson (see e.g. People v. Reyes (1987) 195 Cal.App.3d 957, 961, fn. 2) and, in some instances, addiction may provide an additional reason for concluding a defendant does not fall outside the spirit of the Three Strikes statutory scheme. (See e.g. People v. Barrera (1999) 70 Cal.App.4th 541, 554-555.) Although the record indicates Lopez has participated in a number of drug abuse programs, it is apparent he has been unsuccessful in overcoming his long-standing drug addiction. This inability to overcome his addiction has contributed to the pattern and nature of Lopez’s criminal history and does not bode well for his future prospects. (See Ibid.)
We conclude the trial court properly exercised its discretion when it declined to strike both of Lopez’s prior convictions as to all of his present convictions. (People v. Williams, supra, 17 Cal.4th at p. 162 [The “superior court’s order [is] subject to review for abuse of discretion.”].) The trial court properly concluded Lopez could not be deemed to have fallen outside the spirit of the Three Strikes law and thus could not be treated as though he had not previously been convicted of one or more serious felonies. (Id. at p. 161.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.