Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Ct. No. 2005012010 of Ventura James P. Cloninger, Judge
Larry S. Dushkes, 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, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Chung L. Mar, Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Kenneth Marinos appeals the judgment entered after a jury convicted him of second degree robbery (Pen. Code, § 211). The jury also found true the allegation that Marinos personally used a firearm in committing the robbery (§§ 12022.5, subd. (a), 12022.53, subd. (b)). Marinos admitted a prior serious or violent felony conviction (§§ 667, subds. (a)(1) & (e)(1), 1170.12, subds. (b) & (c)(1)). He was sentenced to 15 years in state prison, consisting of the upper term of five years, doubled for the strike prior, plus five years for the prior serious felony. He contends the trial court sentenced him to the upper term in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], and abused its discretion in refusing to strike his prior strike conviction, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We affirm.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On the afternoon of April 10, 2005, Marinos approached Joel Torres while he was working at Wheel Fun Rentals, a bike rental kiosk located on the beach in Ventura, and asked to borrow some tools to fix his bicycle. While he was working on his bicycle with the borrowed tool, he asked Torres whether he worked alone and asked him how much money the business usually brought in. Torres responded that he often worked alone, and gave a rough estimate of the daily income. Shortly thereafter, Marinos returned the tool and rode away on his bicycle.
Marinos returned to the kiosk about 15 minutes later while Torres was closing up and asked to borrow his cell phone. After Marinos had several unsuccessful attempts to place a call, he set the phone down and began asking Torres more questions. Marinos asked Torres whether he ever feared being robbed. When Torres responded that he did not, Marinos showed him a gun that was attached to this bike rack with a bungee chord and said, "I hope you better start worrying now." Marinos ordered Torres to give him all of the money in the cash register. Torres handed Marinos the money, which totaled $140. Marinos also took the cell phone and told Torres, "I'm taking the phone so you don't try anything funny, and if you do, I'll come back and get ya." Immediately after Marinos drove away on his bicycle, Torres called 911. Officer Christopher Landavazo of the Ventura Police Department responded to the scene and took Torres's statement. Torres gave a description of Marinos's appearance and clothing, and noted that he had a "tribal" tattoo of a cross, sword and eyeball on his right shoulder.
On April 13, 2005, Torres went to the police station at the request of Detective Robert Ortiz. With Torres's assistance, a composite sketch of the robber was prepared. Torres subsequently identified a photograph of Marinos from a binder containing approximately 35 photographs of possible suspects. Torres also positively identified a photograph of Marinos's tattoo.
DISCUSSION
I.
Upper Term
The trial court sentenced Marinos to the upper term based on numerous aggravating factors, including the facts that Marinos had numerous prior convictions and prison terms and was on probation at the time of the instant offense. (Cal. Rules of Court, rule 4.421(b)(2)-(4).) In his opening brief, Marinos contends that the court sentenced him to the upper term in violation of his right to a jury trial as contemplated by Cunningham v. California, supra, 127 S.Ct. 856, by relying on facts (other than his prior convictions) that were neither submitted to the jury nor admitted by him. He concedes in his reply brief, however, that our Supreme Court has since concluded that "the trial court was permitted to sentence [him] to the upper term based on its finding that [he] had suffered 'numerous prior convictions and prison terms,['] even though the trial court had also cited other, non-recidivist factors in support of its decision." (Citing People v. Black (2007) 41 Cal.4th 799.) While Marinos disagrees with this conclusion, he acknowledges that we are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We reject the People's contention that Marinos forfeited this claim by failing to object at trial. As Marinos notes, he did object to the trial court's reliance on aggravating factors that were not decided by the jury because "I think that's an issue for the jury to determine whether or not it's aggravated for sentencing purposes." In any event, the People's forfeiture claim has been expressly rejected by our Supreme Court. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
II.
Refusal to Strike Prior
Prior to sentencing, Marinos filed a motion to strike his 1995 criminal threats conviction in the interests of justice under section 1385 and People v. Superior Court (Romero), supra, 13 Cal.4th 497. The court denied the motion, stating: "I've looked at the Romero criteria, the nature of the offense, nature of prior conduct by the defendant, his background and so on. I think it would be an abuse of discretion in this instance to strike the strike prior. . . . [E]xcept for the age of the prior, there's nothing that mitigates in favor of that finding, and given the nature of this offense and [the] nature of the prior conduct, I have evaluated that and the defendant's motion to strike the strike prior is respectfully denied." Marinos contends the court abused its discretion in denying the motion. We disagree.
Trial courts have limited discretion under section 1385 to strike prior convictions in three strike cases. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531.) In evaluating whether to exercise that discretion, the court 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.) We review the court's ruling under a deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)
The court did not abuse its discretion in refusing to strike Marinos's prior strike conviction. While Marinos argues that the court's "terse statement that it considered 'the nature of the offense, nature of prior conduct by the defendant, his background and so on' does not demonstrate that the court made a reasoned judgment [citation]," the court was not required to recite any facts it relied on in denying the motion. The court stated it had considered the nature of the offense and the circumstances of his present and prior convictions, and nothing in the record indicates it did not actually do so. In the years following his criminal threats conviction, Marinos has been convicted of, among other crimes, petty theft, possession of a deadly weapon, and spousal abuse. The instant offense was violent and involved the use of a gun. Marinos correctly notes that he "was originally given only jail time for the criminal threats offense that constitutes the strike prior," yet he overlooks the fact that he subsequently violated his probation and was sentenced to three years in state prison. He also ignores the conduct upon which the conviction was based, i.e., that he brandished a knife at his wife while she was six months pregnant and told her he was going to slit her throat from "ear to ear." He also ignores that he was on probation for a theft-related crime when he committed the instant robbery offense, and that he has continued to deny responsibility for the robbery. While he seizes on the trial court's characterization of the instant offense as "a fairly nice robbery [in which] nobody got particularly unduly terrorized other than displaying a gun," the court went on to note that "the crime involved a threat of great bodily harm. The circumstances of the crime certainly indicate planning. The defendant has a prior history of violent conduct, and my take is that he's a danger to other people. His prior convictions are numerous. He's been to prison before. And he was on probation when he committed this particular crime. I don't think there are any circumstances in mitigation." In light of these observations, all of which find support in the record, it cannot be said that the court erred in concluding that Marinos fell within the spirit of the three strikes law. (People v. Williams, supra, 17 Cal.4th at p. 161.) Accordingly, the court did not abuse its discretion in finding that the interests of justice would not be served by striking the prior strike conviction.
The judgment is affirmed.
We concur:
GILBERT, P.J., YEGAN, J.