From Casetext: Smarter Legal Research

People v. Mahorney

California Court of Appeals, Third District, Placer
Mar 26, 2008
No. C056547 (Cal. Ct. App. Mar. 26, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RICHARD EUGENE MAHORNEY, Defendant and Appellant. C056547 California Court of Appeal, Third District, Placer March 26, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 62065823

HULL, J.

Defendant Richard Eugene Mahorney entered a negotiated plea of guilty to second degree robbery (Pen. Code, § 211; undesignated section references are to this code) and admitted four prior serious felony convictions within the meaning of sections 667, subdivision (a), 667, subdivisions (b)-(i) and 1170.12, in exchange for dismissal of the remaining count (felony evading).

At sentencing, the parties agreed that defendant had three, rather than four, prior serious felonies within the meaning of section 667, subdivision (a). After denying defendant’s motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court sentenced defendant to state prison for an indeterminate term of 25 years to life for the robbery and a determinate term of 15 years for the three prior serious felonies.

Defendant appeals. He contends the trial court abused its discretion in denying his Romero motion. We reject this claim. Defendant also contends and we agree that the abstract of judgment requires correction.

FACTS

Defendant entered a Rite Aid store in Roseville, took a pack of beer to the check-out counter, asked for a carton of cigarettes and then, simulating possession of a gun, demanded the contents of the cash register. The cashier gave defendant $385 and defendant left with the money. Defendant’s vehicle was described by witnesses. When interviewed, defendant admitted committing the robbery for financial reasons but denied that he possessed a gun.

Defendant’s four prior convictions for robbery reflect similar facts. In 1984, defendant entered a Radio Shack, displayed a firearm and robbed the store. Defendant was a former employee. In 1985, defendant entered a donut shop, displayed the butt end of a handgun, and demanded money. He fled with the money in a bag. The next day, defendant entered the same Radio Shack he robbed in 1984, simulated a gun under his shirt and threatened to shoot the employee unless his demand for money was met. He fled with the money. Also in 1985, defendant entered a bank, handed the teller a note informing her that it was a robbery, he had a gun and his demand for $300, and simulated a gun. Defendant fled with $300.

DISCUSSION

I

Although conceding that the trial court was aware of its discretion to strike the strike priors, defendant contends the trial court feared that it would abuse its discretion in doing so. We find no abuse of discretion.

Defense counsel requested that the court strike three of the four strike priors and impose the upper term, doubled for the offense. Defense counsel asserted that defendant was not a recidivist in that his prior strikes were more than 20 years old and committed in a two-year period of time. Defendant had one parole violation, a 1991 felony conviction for embezzlement and a 2004 misdemeanor drunk driving conviction. Defense counsel noted that no one suffered actual injury in any of the prior robberies or the current robbery. Defense counsel also noted defendant was remorseful, had previously had a job, and made an early admission.

In denying the motion, the trial court stated: “Romero [m]otions are sometimes easy and sometimes difficult. This is a--and this one is in the middle. I’m very much aware of the consequences to [defendant] should I deny the motion. But with the prior convictions for robbery, and engaging in the exact same conduct again, the violent felonies present, violent felony, it would be an abuse of discretion for me to grant a Romero motion. So, with some reluctance, I’m denying the motion.”

The trial court’s expression of reluctance in imposing the three strikes sentence did not, as defendant argues, demonstrate “fear” of being reversed on appeal if it had stricken some of the strike priors. Defendant has misinterpreted the record. Instead, the court’s statement simply reflects it seriously considered the consequences to defendant of a three strikes sentence.

Remand for a new Romero hearing is required where the record affirmatively reflects that the trial court misunderstood the scope of its discretion. (Romero, supra, 13 Cal.4th at pp. 507, 530-532, & fn. 13.) The record here presents no such problem; the trial court knew the scope of its discretion. The trial court’s statement in denying to strike the strike priors reflects that the court recognized its discretionary authority but concluded that the circumstances were not “extraordinary” to deem defendant outside the spirit of the three strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 378.) Defendant has continued his life of crime, “engaging in the exact same conduct again,” as stated by the trial court. We find no abuse of discretion. (See 33 Cal.4th at p. 374.)

II

As defendant contends, the abstract of judgment erroneously reflects that conduct credits were awarded pursuant to section 4019 instead of section 2933.1. We also note that the abstract erroneously lists one enhancement under section 667, subdivision (a)(1) for 15 years. Defendant had three, five years for each, for a total of 15 years. We will order the abstract corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment to reflect that conduct credits were awarded pursuant to section 2933.1 and that defendant had three prior serious felonies within the meaning of section 667, subdivision (a)(1), a five-year enhancement for each, for a total of 15 years, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.

We concur: DAVIS, Acting P.J., NICHOLSON, J.


Summaries of

People v. Mahorney

California Court of Appeals, Third District, Placer
Mar 26, 2008
No. C056547 (Cal. Ct. App. Mar. 26, 2008)
Case details for

People v. Mahorney

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD EUGENE MAHORNEY…

Court:California Court of Appeals, Third District, Placer

Date published: Mar 26, 2008

Citations

No. C056547 (Cal. Ct. App. Mar. 26, 2008)