Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC068127
Bruiniers, J.
Pursuant to a negotiated disposition, appellant Victor M. Napoleon pleaded no contest to a felony violation of Penal Code section 136.1, subdivision (b)(2), willfully dissuading a victim from prosecuting a crime, and to a misdemeanor violation of infliction of corporal injury on a spouse (§ 273.5, subd. (a)). He also admitted that he had suffered a prior felony conviction for manslaughter (§ 192, subd. (a)), and that it was a “strike prior” within the meaning of section 1170.12, subdivision (c)(1). He was sentenced to a term of 32 months in state prison, the maximum permitted under the terms of the plea bargain. Napoleon contends that the trial court abused its discretion in denying his Romero motion to strike the prior conviction for purposes of sentencing. We disagree and affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Factual and Procedural Background
We discuss the facts underlying Napoleon’s convictions only to the extent relevant to his motion to dismiss his prior conviction from sentencing consideration. On January 30, 2009, Napoleon was staying with his spouse, Wendy G. (Wendy), at Wendy’s home in Brisbane. They had married about three weeks earlier. At around 8:00 a.m. on January 30, Napoleon became angry when Wendy did not get out of bed to turn off the alarm clock. He put a pillow over her mouth and nose, putting his other hand around her neck, and attempted to choke her, while calling her a “fucking bitch, ” “whore” and “slut.” Napoleon pulled Wendy off the bed, causing her to land on her tailbone. He used beer bottles to smash framed photographs in the room. When Wendy used her “panic button” to activate an audible alarm system, Napoleon left the house.
When police arrived, Wendy was visibly distraught and shaking. She told officers that Napoleon had choked her and tried to suffocate her with a pillow. Wendy’s nose was bruised, and she suffered a cut to her knee when Napoleon pushed her to the ground. An emergency protective order was issued prohibiting Napoleon from having any contact with Wendy.
Napoleon was arrested later that day and served with the protective order at the time of his arrest. He nevertheless called Wendy every day from the jail, telling her to avoid the police and not to cooperate with the district attorney. The calls were recorded.
At the preliminary hearing, Wendy recanted her statements to police. She said that she still loved Napoleon.
Napoleon was held to answer a felony information filed charging him with infliction of corporal injury on a spouse (§ 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), malicious destruction of property (§ 594, subd. (b)(2)(A)), willfully dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2)), and 15 counts of violating a court order (§ 166, subd. (c)(1)). It was alleged that Napoleon had suffered a prior felony conviction for manslaughter (§ 192, subd. (a)), and that the conviction was a strike prior within the meaning of section 1170.12, subdivision (c)(1).
The assault with a deadly weapon count was alleged to be a “serious felony” within the meaning of section 1192.7, subd. (c)(23), and that Napoleon had committed the offense while on parole (§ 1203.085, subd. (b)).
On August 6, 2009, pursuant to a negotiated disposition, Napoleon pleaded no contest to a felony violation of section 136.1, subdivision (b)(2), willfully dissuading a victim from prosecuting a crime, and to a misdemeanor violation of infliction of corporal injury on a spouse (§ 273.5, subd. (a)). He also admitted that he had suffered a prior felony conviction for manslaughter (§ 192, subd. (a)), and that the conviction was a strike prior (§ 1170.12, subd. (c)(1)). As part of the plea agreement, Napoleon was guaranteed a maximum sentence of 32 months in state prison. It was also agreed that Napoleon could present a Romero motion to strike his prior felony conviction at the time of sentencing. The matter was referred for a probation report.
A sentencing hearing was held on September 11, 2009. The probation officer recommended that probation be denied, and that Napoleon be committed to the Department of Corrections and Rehabilitation. Napoleon moved to strike his prior conviction for purposes of sentencing. The trial court first noted that both the current offense and prior conviction involved crimes of violence. The court stated that it would do “what the court needs to do on a Romero Motion, weigh and consider the various factors, under the Romero, Garcia, and Williams cases and decide whether this particular offense falls within the statutory scheme of the three strikes law.” (Bolding omitted.) It reviewed Napoleon’s criminal history, including his prior arrests and convictions for assaultive conduct. It noted Napoleon’s prior convictions for domestic violence, and that he was on parole for his voluntary manslaughter conviction at the time of the current offense. The court concluded that “I think it’s pretty clear that it does fall within the statutory scheme of three strikes. It is, again, a crime of violence. So the court believes pretty clearly that it, the Romero Motion should be denied. So the Romero Motion is denied.”
People v. Garcia (1999) 20 Cal.4th 490.
People v. Williams (1998) 17 Cal.4th 148.
Napoleon was found to be statutorily ineligible for probation, and he was sentenced to the mitigated term of 16 months in state prison, doubled to 32 months pursuant to section 1170.12, subdivision (c)(1).~CT 176-179; 3 RT 29)~ A timely notice of appeal was filed.
Discussion
The only issue presented on this appeal is the propriety of the trial court’s denial of Napoleon’s Romero motion to strike his prior felony conviction for purposes of sentencing. A court has discretion under section 1385 to dismiss sentencing enhancement allegations under the “three strikes law.” (Romero, supra, 13 Cal.4th at p. 504.) In exercising that discretion, and consistent with the language of and the legislative intent behind the three strikes law, there are “stringent standards that sentencing courts must follow” in order to justify doing so. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) It must consider “ ‘whether, in light of the nature and circumstances of [a defendant’s] 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.’ [Citations.]” (Ibid.) A trial court’s failure to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (Carmony, at p. 376.) Napoleon contends that the court “limited its consideration to whether [his] current offense was the same kind or class of crime as his prior convictions” and abused its discretion in failing to consider individualized considerations such as Napoleon’s “background, character and prospects.” We disagree.
The term “motion” is a misnomer in this context. “A Romero ‘motion’ is in fact a request that the court exercise its authority under section 1385 to strike a prior felony conviction. [Citation.]” (People v. Lee (2008) 161 Cal.App.4th 124, 127, fn. 2.)
“The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading. [¶]... [¶] If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).” (§ 1385, subds. (a), (c)(1).)
“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.” ’ [Citations.] 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.” (Carmony, supra, 33 Cal.4th at pp. 376–377.)
Napoleon argues here that the trial court should have considered Wendy’s recantation of her statements to police as evidence mitigating the seriousness of the current crimes. Napoleon points to letters of support that he received from his children and from drug and alcohol programs, and he attempts to minimize the seriousness of the circumstances underlying his manslaughter conviction.
The preliminary hearing magistrate did not find Wendy’s postoffense efforts to aid Napoleon to be credible or persuasive, and the trial court could have found them equally suspect.
The victim suffered concussive injury to his heart after being struck several times in the chest by Napoleon. Even assuming that this should somehow be considered mitigating, Napoleon conveniently ignores the additional salient facts set forth in the probation report-that Napoleon was armed at the time of the offense and was there, as here, also violating a criminal protective order at the time.
The very basic problem with Napoleon’s arguments is that all of the information he relies upon here was presented to the trial court, which had ample evidence before it of Napoleon’s “background, character and prospects.” While the court must consider evidence offered by Napoleon in support of his assertion that the dismissal would be in furtherance of justice (People v. Lee, supra, 161 Cal.App.4th at p. 129), there is no requirement that the court accept the conclusions that Napoleon would wish it to draw, or give it the weight that Napoleon feels it should receive. The court also had before it a probation report indicating, as the court observed, Napoleon’s propensity for violence and his lack of willingness to take responsibility for his actions in the current case. Napoleon was still on parole for his “strike” conviction at the time he assaulted his current victim. “On appeal the basic rule is that it will be assumed that the trial court impliedly found every fact, necessary to support its ruling, to be true. [Citations.]” (People v. Castaneda (1969) 1 Cal.App.3d 477, 484–485.) “Absent a showing to the contrary, we presume the trial court fulfilled its duty to make the requisite determination. [Citations.]” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836.)
As Napoleon acknowledges, there is no requirement that the sentencing court explain its decision not to exercise its power to dismiss or strike. This is reflective of the “ ‘legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law.’ ” (In re Large (2007) 41 Cal.4th 538, 550, quoting Carmony, supra, 33 Cal.4th at p. 376.) “Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Carmony, at p. 378.)
As the record amply reflects, the trial court was well aware of its discretion, and of the factors it was required to consider in the exercise of that discretion. This is far from the “extraordinary case, ” where the relevant factors “manifestly support the striking of a prior conviction and no reasonable minds could differ....” (Carmony, supra, 33 Cal.4th at p. 378.) We consider Napoleon’s arguments to the contrary to border on the frivolous.
The trial court is presumed to have acted to achieve legitimate sentencing objectives, and Napoleon has failed to show that the court considered impermissible factors in declining to strike his prior, or that it “acted so irrationally or arbitrarily that no reasonable person could agree with its denial of Romero relief. [Citation.]” (People v. Lee, supra, 161 Cal.App.4th at pp. 131–132.)
Disposition
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.