Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct.No. RIF116877, Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant pled guilty to committing an attempted battery by gassing on a police officer (Pen. Code, §§664/ 4501.1, subd. (a)) (count 1) and two counts of committing a battery on a noninmate (§ 4501.5) (counts 2 and 3). Defendant also admitted that he had sustained three prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)) and two prior prison terms (§ 667.5, subd. (b)). Following a denial of his motion to dismiss one or more of his prior strike convictions, defendant was sentenced to a total term of 27 years to life in state prison. On appeal, defendant contends (1) the abstract of judgment should be modified to reflect the proper sentence imposed on the prior prison term enhancements; and (2) the trial court erred in denying his motion to dismiss two of his prior strike convictions. We agree with the parties that the abstract of judgment must be amended but reject defendant’s remaining contention.
All future statutory references are to the Penal Code unless otherwise stated.
I
A brief recital of the factual background is taken from the preliminary hearing transcript.
On November 18, 2003, California Rehabilitation Center (CRC) Correction Officer Glen Traylor was called out to a housing unit regarding an incident. When he arrived on the scene, he saw defendant, an inmate, being escorted out of the housing unit in restraints and handcuffs. Defendant appeared to be under the influence of “inmate-manufactured alcohol.”
Upon speaking with another officer (Officer Pederson), Officer Traylor discovered that defendant had become upset and hit his “upper body” against Officer Pederson after he was not allowed to pass out the mail. Officer Pederson remained calm while other inmates escorted defendant back to his bunk. Officer Pederson then called for radio assistance, and another officer (Officer Otuafi) took custody of defendant.
When Officer Traylor returned to his office, Officer Otuafi informed him that, as he was escorting defendant to Officer Traylor’s office, defendant was resistant and attempted to spit on him several times. Defendant also spat on the walls and corridor windows as he was being escorted, continued to spit on staff, and was “very resistive . . . .” In light of defendant’s behavior, Officer Traylor opined a spit mask and full restraints were necessary. Defendant continued to resist; at one point, he broke away from Officer Traylor’s grasp, squatted down, and pulled away from both officers. In doing so, defendant hit the floor with his face and began to bleed. After the officers managed to apply the spit mask and restraints on defendant, he was taken to the medical ward for evaluation.
As defendant was being evaluated by a nurse, he continued to misbehave. At one point, defendant purposefully stuck his foot out and tripped the elderly nurse. The nurse would have fallen if Officer Otuafi had not caught her.
II
DISCUSSION
A. Abstract of Judgment
Defendant contends, and the People correctly concede, that the abstract of judgment must be corrected to reflect that the trial court imposed a sentence of one year for each of his two prior prison term enhancements (§ 667, subd. (b)) rather than two years each for the two prior prison terms. We also agree. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts have inherent authority to correct clerical errors in their records, including abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts].) The abstract of judgment should therefore be corrected accordingly.
B. Motion to Dismiss Priors
Defendant argues the trial court abused its discretion by refusing to dismiss two of his prior strike convictions pursuant to People v. Superior Court (Romero) (1996)13 Cal.4th 497. We disagree.
A trial court’s decision to not dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that 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 pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 and People v. Preyer (1985) 164 Cal.App.3d 568, 573; see also People v. Myers (1999) 69 Cal.App.4th 305, 309.)
The California Supreme Court explained, “In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (People v. Carmony, supra, 33 Cal.4th at p. 378, citing People v. Langevin (1984) 155 Cal.App.3d 520, 524 and People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); People v. Myers, supra, 69 Cal.App.4th at p. 310.)
But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (People v. Myers, supra, 69 Cal.App.4th at p. 310.) “Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The touchstone of the analysis must be “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.” (Williams, supra, 17 Cal.4th at p. 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Defendant contends the court should have granted his request to strike two of his prior strike convictions given his current crimes were “minor,” “downright trivial”, nonviolent, and de minimis. He characterizes his current behavior as “simply being recalcitrant while inebriated on Pruno,” and “mean-spirited,” but “hardly serious” enough to warrant a three-strike sentence given the state’s budget and overcrowded prisons. He further claims his motion should have been granted given the remoteness of his priors being from 1995 and his age, background, character, and prospects for changing his life.
We cannot conclude the trial court abused its discretion in declining to strike one or more of defendant’s prior strike convictions. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams.
This case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Though defendant’s current crimes can be characterized as nonviolent, they are hardly “trivial.” In addition, defendant has a violent and serious prior record of criminal behavior beginning when he was a juvenile. In 1994, at the age of 18, he was convicted of felony vehicle theft and placed on probation for three years. He violated probation and was sentenced to prison. Subsequently, in 1995, defendant was convicted of two counts of robbery. In that case, defendant along with purported gang members robbed different victims as they were leaving a Los Angeles area nightclub. Defendant was thereafter sentenced to three years in prison. In 1998, defendant was convicted of possession of a dangerous weapon and placed on probation. In 1999, he was convicted of resisting an officer and again given a chance on probation. In 2002, he was convicted of his third strike for robbery. In that case, defendant went to a Los Angeles bar with a gun, along with gang members, and threatened to shoot the owner of the bar before taking $426 from the bar’s cash register. In fact, defendant’s criminal record shows that he has spent most of the last 20 years in the criminal justice system and has continued to commit crimes and violate his probation.
The court here could not overlook the fact defendant continued to commit serious criminal offenses and violate the terms and conditions of his probation even after repeatedly serving time in prison. His conduct as a whole was a strong indication of unwillingness or inability to comply with the law. He has also shown a proclivity for weapons and violent behavior through his prior conduct. Finally, he has shown his disregard for the law as evidenced by his continual probation violations and criminal convictions. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense. All of these factors were relevant to the trial court’s decision under Romero; there is no indication from the record here that the court failed to consider the relevant factors or that it failed to properly balance the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th 148, 161.)
Indeed, defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) Thus, given defendant’s continuous criminal history, his numerous probation violations, the seriousness of the past and present offenses, and his seemingly dim prospects for rehabilitation and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss one or more of defendant’s prior strike convictions. The trial court’s decision not to strike defendant’s priors was neither irrational nor arbitrary.
In short, defendant was within the spirit of the three strikes law (see Williams, supra, 17 Cal.4th at p. 161); the trial court did not rule in an “arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice” (see People v. Jordan (1986) 42 Cal.3d 308, 316); and we find no abuse of discretion (see Romero, supra, 13 Cal.4th at p. 504).
III
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the trial court’s actual sentence as set forth in part II.A, ante, and to send copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: McKINSTER, Acting P.J., KING, J.