Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. KA069377. Robert M. Martinez, Judge. Affirmed.
John Doyle, 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, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Anthony Albert Mora appeals from his carjacking convictions, in violation of Penal Code section 215, subdivision (a). He argues the evidence is insufficient to support the convictions as to the driver’s two children because they were not in the immediate presence of the car, nor were they passengers, when the carjacking occurred. Appellant also claims the trial court abused its discretion in refusing to strike a prior serious felony conviction because it allegedly did not consider the fact that he already was facing a lengthy sentence. We find no error and affirm.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
On the evening of January 15, 2005, Rene Deresa, Sr. (Deresa) drove his three children to a home in the City of Covina. After 15 to 20 minutes, Deresa and two of the children returned to the car. Deresa’s son and daughter, then ages 12 and 14 respectively, raced back to the car to determine who would get to ride in the front passenger seat. With his car keys in hand, Deresa used a remote control to unlock the car for the children. Just as the daughter was about to open the front passenger door, appellant stood in front of the car and yelled, “Nobody move.” At this point, both children stood adjacent to the car door, just four feet from appellant. Deresa was still 20 feet from the car. Appellant was holding a handgun and yelled, “Get back.” The children backed away from the car. In disbelief, Deresa took a few steps toward appellant. Appellant pointed the gun at Deresa and kept yelling, “Get back.” Deresa motioned to the children to flee. Both children ran from the scene. After demanding that Deresa lie face down on the ground, appellant grabbed the car keys and forced Deresa to surrender his wallet. Appellant then fled in Deresa’s car.
Appellant was charged with three counts of carjacking, in violation of section 215, subdivision (a), one count of second degree robbery, in violation of section 211, one count of felony evading, in violation of Vehicle Code section 2800.2, subdivision (a), and one count of being a felon in possession of a firearm, in violation of section 12021, subdivision (a)(1). A weapon enhancement within the meaning of section 12022.53, subdivision (b), was also alleged. It was further alleged that he suffered a prior strike conviction within the meaning of section 667, subdivisions (b) through (i), a prior serious felony conviction within the meaning of section 667, subdivision (a), and a prior prison term within the meaning of section 667.5, subdivision (b).
A jury returned a verdict of guilty on all counts and found the weapon enhancement to be true. The court also found the prior convictions and prison term to be true. Appellant moved to dismiss the prior strike conviction pursuant to section 1385. The court denied the motion and sentenced appellant to 28 years and 8 months. This is a timely appeal from the judgment of conviction.
DISCUSSION
I
Appellant argues the evidence is insufficient to support the carjacking convictions as to the two children because at the time of the carjacking, they were neither in the immediate presence of the vehicle, nor were they passengers. We disagree.
Under section 215, subdivision (a), carjacking is the “felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”
We reject appellant’s argument that the children were not in the immediate presence of the car. There is no requirement that the victim be inside or even touching the vehicle at the time of the carjacking. (People v. Medina (1995) 39 Cal.App.4th 643, 650; People v. Coryell (2003) 110 Cal.App.4th 1299, 1303.) Rather, immediate presence constitutes any “area in proximity to the vehicle.” (People v. Medina, supra, 39 Cal.App.4th at p. 651.) Viewing the evidence in a light most favorable to the judgment, the children were at the car door when appellant approached. (People v. Carpenter (1997) 15 Cal.4th 312, 387.) The daughter was just about to open the car door. As the appellant stood in front of the car pointing a gun, the children were only four feet from him. This evidence establishes that the children were in proximity to the vehicle and thus in the immediate presence.
Although appellant claims Medina does not apply because the issue there involved the carjacking of a driver, as opposed to a passenger, Medina simply defines the meaning of “immediate presence” pursuant to section 215, subdivision (a). It does not limit the legal definition of “immediate presence” to situations only involving drivers. Nor did the Legislature distinguish the meaning of “immediate presence” as different for a driver versus a passenger. (§ 215, subd. (a).)
In People v. Hamilton (1995) 40 Cal.App.4th 1137, 1139-1140, a defendant’s conviction of carjacking a passenger was upheld even though the passenger was outside the vehicle when the carjacking began. After the passenger exited the vehicle and headed to the rear of the car, the defendant approached her with a gun. (Ibid.) Both the passenger in Hamilton and the children in this case were in the vicinity of the car. Just as the passenger in Hamilton was in the immediate presence of the vehicle because she was outside but near the car, the children here were in the immediate presence as well, for they too were outside but very near the car.
As the court explained in Hamilton, “In the usual case of carjacking involving multiple occupants, all are subjected to a threat of violence, [and] all are exposed to the high level of risk which concerned the Legislature.” (People v. Hamilton, supra, 40 Cal.App.4th at p. 1144.) All occupants “are compelled to surrender their places in the vehicle and suffer a loss of transportation.” (Ibid.) Because the children were confronted with an armed carjacker not more than four feet away, they were subjected to a threat of violence and exposed to the same level of risk which concerned the Legislature. When appellant stole the vehicle, the children were compelled to surrender their places in the car and suffer a loss of transportation. They were in the immediate presence of the car for purposes of appellant’s convictions.
Appellant also claims the children were not passengers at the time the carjacking began or at anytime thereafter. Viewing the evidence in the light most favorable to the judgment, the children were passengers in the car not more than 20 minutes before the carjacking. (See People v. Carpenter, supra, 15 Cal.4th at p. 387.) They were returning to the car with the expectation of riding in the vehicle. When appellant appeared, the children were adjacent to the car, and the daughter was about to open the car door. This evidence establishes that the children were passengers at the time of the carjacking.
That the children fled during the commission of the carjacking does not negate their status as passengers. (See People v. Coryell, supra, 110 Cal.App.4th at pp. 1302-1303.) The evidence that the children were outside the vehicle throughout the carjacking also does not lessen their passenger status. The court deemed the victim in Hamilton a passenger even though she was outside the vehicle when the carjacking began and throughout the commission of the crime. (People v. Hamilton, supra, 40 Cal.App.4th at p. 1144.)
II
Appellant also argues the court abused its discretion in denying his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, to dismiss his prior strike conviction. In that case, our Supreme Court held that trial courts have authority to dismiss a prior conviction allegation, pleaded for purposes of sentencing under the “Three Strikes” law. (§§ 1385, 667, subds. (b)-(i), 1170.12.)
A court’s decision whether to strike a prior conviction is subject to the highly deferential abuse of discretion standard. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) The exercise of discretion will only be reversed when the trial court ruled in a manner shown to be arbitrary or irrational. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) We will not reverse merely because we may have decided the issue differently. The party seeking reversal carries the burden of demonstrating the abuse of discretion. If the party fails to meet its burden, we assume the court acted to achieve a fair sentencing outcome. (Ibid.) In this case, appellant failed to carry his burden, because he has not shown the court acted arbitrarily, capriciously, or irrationally in a manner manifesting injustice.
In ruling on a motion to dismiss a prior conviction, the court should consider whether doing so would be in the “furtherance of justice,” pursuant to section 1385, subdivision (a). (People v. Williams (1998) 17 Cal.4th 148, 159.) The Williams court emphasized that considerations of justice involve not only consideration of the defendant’s constitutional rights, but also the interests of society. (Ibid.) The court explained that the “‘furtherance of justice’” standard requires the court to evaluate whether the defendant is outside the “scheme’s spirit.” (Id. at p. 161.) Whether a defendant falls outside the scheme’s spirit is based on factors such as the nature and circumstances of the current felony or prior conviction. This inquiry also may be based on the defendant’s “background, character, and prospects.” (Ibid.)
In this case, the trial court considered whether the defendant was outside the spirit of the Three Strikes law and, in furtherance of justice, concluded he was not. The court explicitly mentioned its consideration of the seriousness of the present crime and the interests of justice. It also cited the aggravating factors of appellant’s carjacking crime, specifically that it involved the presence of children and use of a firearm.
Appellant claims the court’s considerations were insufficient, because it failed to explicitly consider the lengthy sentence appellant already faced in the absence of any additional Three Strikes sentence. Appellant’s motion to strike the felony prior alerted the court to the lengthy sentence appellant was facing. Appellant is 39 years old. The midterm sentence for a carjacking conviction under section 215 is five years, and the mandated sentence for use of a firearm is 10 years. In addition, because the court found counts five and six to be the result of a separate incident warranting the imposition of a consecutive sentence, appellant argues the sentence likely to have been imposed would have totaled 16 years and 4 months. Although the court did not expressly address the issue of the lengthy sentence on the record, when the record is silent on an issue, we presume the court correctly applied the law. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
Appellant’s record and the serious nature of the present crime show that he does not fall outside the spirit of the Three Strikes law. The circumstances must be extraordinary to deem a repeated recidivist to be outside the spirit of the law. (See People v. Strong (2001) 87 Cal.App.4th 328, 332.) Appellant’s situation is hardly extraordinary, considering the gravity of the current offense. As the court noted, appellant’s crime of carjacking constituted a very “serious and dangerous” chain of events involving a firearm that not only “endangered and obviously frightened” the adult victim, but also put children at risk. Appellant’s situation also lacks extraordinariness in the context of his recidivism. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) Appellant’s record spans approximately 16 years with two jail terms for misdemeanor offenses in the 1980s, a 1991 serious felony conviction and prison sentence for shooting at an uninhabited dwelling, and a 1999 conviction and prison term for felony joyriding.
Considering appellant’s criminal record and the gravity of the current offense, the court’s refusal to strike a prior strike conviction can hardly be said to violate notions of human dignity or shock the conscience. (See People v. Kinsey, supra, 40 Cal.App.4th at p. 1630.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.