Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FC47176
Margulies, J.
Defendant Robert Hayden Nesbitt appeals from the denial of his motion pursuant People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to strike all six of his prior strike convictions for purposes of the “Three Strikes” law. He contends that the trial court erred in taking judicial notice of a 1991 juvenile probation report that contradicted his claim of childhood physical and psychological abuse. We affirm the judgment, finding that defendant waived his claim of error and that, in any event, the trial court did not in fact rely on the contents of the report or abuse its discretion in denying his motion.
I. BACKGROUND
Defendant was charged with and eventually pleaded no contest to 10 counts of second degree robbery (Pen. Code, § 211; counts I and III through XI), being a felon in possession of a firearm (§ 12021, subd. (a)(1); count II), and conspiracy to commit robbery (§§ 182, subd. (a)(1), 211; count XII). The robberies all occurred between May 23 and July 7, 1997. Defendant was further charged with and admitted the following special allegations: (1) as to count I, that he personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5); (2) as to counts I and III through XI, that he had a prior serious felony conviction (§ 667, subd. (a)(1)); and (3) as to counts I through XII, that he had six prior strike convictions (§ 667, subds. (b)–(i)), all of which were for robbery (§ 211).
All statutory references are to the Penal Code unless otherwise indicated.
A. The 1997 Offenses
The following summary of the 1997 offenses is taken from the presentence report:
Counts I and II: On May 23, 1997, defendant entered a Round Table Pizza restaurant, grabbed a $20 bill off the counter, and asked the employee, “Are you in charge?” He told the employee to open the safe, and said he had a gun. Defendant asked again, “Are you in charge?” and said, “I’m fixin’ to rob you.” The employee falsely told defendant that some customers sitting at a table were the restaurant’s managers and owners. Defendant walked the employee over to the table. After a brief conversation with the customers, defendant said, “I’m tired of this, I want your fuckin’ money.” When defendant stepped behind the employee the two began to grapple and the employee saw that defendant had a large chrome revolver with the hammer cocked back, so he let go of defendant. The employee told defendant he would give him the change and asked him not to shoot him because “he had a kid.” Defendant, holding the gun and pointing it at the employee, fled the store. The handgun described by witnesses was recovered later that day after defendant fled from police. It had five live rounds and one expended round in the cylinder.
Count III: On May 28, 1997, defendant entered a Bank of the West, approached a teller, and stated, “I want to make a withdrawal. Give me all the money in the register. You have 15 seconds or I’ll blow your fucking brain out.” He took the money, placed it in a black bag, and fled. The bank’s loss was $6,215.
Counts IV through VII: On June 20, 1997, defendant and a codefendant, Adam Powell, entered a Home Savings Bank branch and approached the teller window. Defendant told the teller he wanted to make a withdrawal. He took his backpack off, placed it on the counter, and stated, “Give me you[r] fucking money.” As the teller emptied her drawer, defendant told her, “[You’re] running out of time, ” and “[h]urry up.” Defendant ordered a second teller to do the same. During these events, defendant was holding something in his hand that was covered by a white handkerchief. While the second teller gave defendant money, Powell jumped over the counter and robbed two other tellers from behind the counter. Both men then fled the scene. The bank’s total loss was $10,194.17.
Counts VIII and IX: On June 25, 1997, defendant and Powell entered the Surety Bank. Defendant placed a bag on the teller counter, and told the teller, “Give me all your money.” When the teller said she was afraid, defendant repeated his demand in a louder voice, vaulted over the counter, and again shouted, “Give me all your money.” The teller pulled money from her drawer and defendant put it in his bag. After walking over to Powell, defendant returned to the same teller and demanded more money. The teller gave him additional money from merchant courier bags she had previously been counting. Defendant and Powell fled the scene. The bank’s total losses had not been determined at the time the sentencing report was prepared. According to an employee, the robbery had a strong and lasting emotional impact on the tellers, especially due to defendant and Powell jumping over the counter and taking control of their workspace.
Counts X and XI: On July 7, 1997, defendant and Powell entered the same Bank of the West branch defendant had robbed on May 28, approached the teller windows, vaulted into the teller area, and demanded money from the tellers. Witnesses reported that the robbers said, “It’s all right, just relax, give me all your money, ” and “Hurry up, you’re taking too long.” Defendant and Powell fled the scene with $22,023.16.
Count XII: This conspiracy count listed nine overt acts relating to counts IV through XI.
B. The Prior Strike Offenses
On January 24, 1993, defendant and Powell went into a 7-Eleven store. Defendant ordered the victim to his knees, and pulled a replica nine-millimeter gun out of his waistband, pointing it at the victim. He ordered the victim to open the register, and he and Powell took all the money.
On January 29, 1993, defendant and Powell went into a Subway sandwich shop, one armed with a knife and the other with a replica nine-millimeter BB gun. They robbed the cashiers and demanded that the safe be opened. The cashiers could not open the safe.
On February 6, 1993, defendant and Powell entered the same 7-Eleven they had robbed on January 24, displayed a replica nine-millimeter BB handgun and a knife, went behind the counter, and demanded all the money. The cashier handed over the money.
On February 6, 1993, defendant and Powell robbed the same Subway sandwich shop they had robbed on January 29. Defendant came to the counter and asked the victim, “Do you remember me?” He then jumped over the counter, produced the replica nine-millimeter BB gun, and stated, “Well, it’s the same thing.”
On February 6, 1993, defendant and Powell entered a Little Caesar’s Pizza restaurant, demanded money, and fled on foot. Defendant used a replica nine-millimeter BB gun to commit this crime.
On February 7, 1993, defendant and Powell entered a Payless Shoesource store, robbed the cashier of $245, and took shoes. Defendant used a replica nine-millimeter BB gun to commit this crime.
In each of the above offenses, the victims reported that a gun was used. Only after interviewing defendant and Powell did the police learn that the gun was actually a BB gun. Upon his conviction for the 1993 offenses, defendant was sentenced to six years in state prison. He was 18 years old at the time, and served his prison sentence at the California Youth Authority (CYA). Defendant began committing the 1997 robberies within a year after his release from the CYA.
Defendant had suffered one prior juvenile adjudication in 1991, when he was 16 years old. Displaying a pellet handgun, defendant had robbed a Subway sandwich shop of $300. For that, defendant was placed in a residential program, Rites of Passage. Following his graduation from the program, juvenile supervision of defendant terminated in January 1993. Two weeks later, defendant began the string of 1993 robberies that led to his CYA confinement.
C. The Romero Motion
After protracted pretrial proceedings, defendant pleaded no contest to all charges and admitted the special allegations on October 6, 2003. The parties agreed there were no promises regarding sentencing and that defense counsel would be filing a Romero motion. Defendant acknowledged that he could receive a maximum sentence of 360 years to life in prison. Immediately after filing his Romero motion, defendant moved to set aside his plea. At defendant’s request, a second attorney was appointed to review his plea agreement and Romero motion. In February 2005, defendant’s second counsel, Robert Fracchia, advised the court that defendant would not pursue his motion to withdraw his plea, but that he wished to submit supplementary materials in support of his Romero motion. Defendant thereafter filed several supplemental documents in support of his Romero motion, including: a psychosocial history prepared by Dr. Gretchen E. White, a clinical psychologist retained by the defense; defendant’s own report as to his personal development during the period of his incarceration; and a declaration by a county official as to defendant’s conduct at the jail.
1. Defendant’s Psychosocial History
On July 29, August 5, and August 26, 2005, the trial court heard evidence and argument on defendant’s Romero motion. Dr. White testified about her written psychosocial history, which included allegations that defendant had suffered extreme physical and psychological abuse at the hands of his father. According to the report, defendant was beaten with a belt a minimum of three times per week from a very early age. He would be punished for making extremely minor mistakes, such as dropping food on the floor. Defendant had to have permission from his father for everything, including getting a glass of water. He was so afraid of his father that he would sometimes drink water from the toilet rather than approach his father. Defendant was constantly under restrictions from his parents to the point that he was unable to make friends or play team sports. Due to the father’s financial irresponsibility, defendant and his brother also had few toys and could not afford to participate in organized activities outside the home such as the Boy Scouts. At about six years of age, defendant began running away. According to defendant’s mother, defendant ran away at least twice a year until he was about 14 years old, and would stay away for one to three days, sometimes staying in parks and libraries.
Both parents were career United States Air Force personnel and military mores had a significant effect on their thinking. According to defendant’s father, they tended to see things in “black and white” terms. The family also moved frequently, increasing defendant’s social isolation and resulting in dramatic changes in the socioeconomic and racial make-ups of the neighborhoods in which he lived. According to Dr. White, the combination of factors in defendant’s upbringing caused him to internalize a very punitive attitude toward himself, and to exhibit excessive anger and strong tendencies toward impulsivity as well as self-sabotage. On the latter point, she opined that when defendant was on the verge of succeeding he would assume that since his success would not affect his parents’ attitude toward him he would “get back at them by messing up.”
Dr. White’s psychosocial history of defendant also referenced a serious automobile accident that occurred when defendant was 15 years old. He was riding in a car with schoolmates that flipped over three times. Defendant was thrown from the vehicle and suffered severe injuries and a period of apparent depression. It was shortly after this accident that defendant committed the armed robbery for which he was sent to Rites of Passage.
Defendant’s mother testified about the beatings to which defendant had assertedly been subjected, his pattern of running away from home, the restrictions and controls placed on him by his father, and the physical and emotional effects of the car accident that occurred when he was 15. His father was present at the hearing but did not testify. According to Dr. White, when she interviewed defendant’s father he minimized the alleged abuse that defendant had experienced. She never asked him about the mother’s specific claims of abuse, such as the regular beatings and extreme strictness over minor infractions.
2. Defendant’s Transformation While in Custody
Other witnesses testified about defendant’s personal growth during his incarceration in the county jail and about the positive effect he had on other inmates. Stanley Maynard met defendant through his stepson, who was defendant’s cellmate. Maynard found him to be sincere, intelligent, and very supportive of others. Former inmate Leroy Comier testified that defendant helped him grow, mature mentally, take responsibility for his criminal conduct, and better himself. Philip Norris had known defendant for about 11 years, dating from defendant’s CYA confinement. He had seen tremendous changes in defendant, and had turned to defendant often for advice and guidance.
Defendant was arrested in Mississippi in November 1997 and was transferred to the Solano County Jail on January 16, 1998. As of the date his Romero hearing began in 2005, defendant had been an inmate at the county jail continuously since January 16, 1998.
Dr. Michael Castell had a Ph.D. in counseling psychology and had worked in the mental health field for 30 years. At the time of his testimony, he had been running inmate programs for the Solano County Sheriff’s Office for eight years. He had his first counseling session with defendant at the end of 2000. He watched defendant go from being in an isolation unit for disciplinary reasons to being a model prisoner who was constantly striving to better himself in terms of his thinking, education, and behavior. According to Castell, defendant had read hundreds of books on serious subjects and was actively trying to grapple with issues of moral development and personal authenticity. He had taken a leadership role in the prison’s life skills program for inmates. Castell had heard from several inmates that defendant helped them stay out of trouble.
3. Defense’s Romero Argument
According to defense counsel, defendant’s juvenile and adult robberies occurred in three separate time periods during which he was acting under particular pressures. In 1991, he robbed to get money for clothes so he would fit in better with his school friends. During the strike offenses in 1993, he had recently become addicted to cocaine and was thinking only of how he could purchase more. In 1997, he relapsed into his old pattern due to the use of narcotics, setbacks in his personal life, and his wounded sense of self. Although the robberies were serious, defendant never used violence and, with the exception of the Round Table Pizza robbery, did not use real guns. Although defendant did have a loaded weapon with him during the Round Table robbery, he only produced it after an employee tried to tackle and subdue him.
In connection with the 1993 offenses, defendant had told a psychologist who interviewed him, Dr. Carlton Purviance, that he had developed a strong addiction to rock cocaine in late 1992, and carried out the January and February 1993 robberies to obtain cash to purchase more cocaine. He also told Purviance that no “significant family conflicts were relevant to the picture.”
Regarding defendant’s childhood and his future potential, defense counsel summed up his argument as follows: “And we are not saying that all of these experiences are an excuse for [defendant’s] behavior. What we are saying is that his experiences as a child and what he went through explains who he is and . . . why he developed the attitude he did, explains the willingness at a young age to throw away a promising future. . . . And the comments to the probation officer I think support fully the notion that he has accepted who he is. And that is why he has demonstrated the tremendous growth and change and potential that has been repeatedly referred to by the number of witnesses who came to the court for his application to strike these prior convictions.”
After hearing argument on August 26, 2005, the trial court took the matter under submission, and advised counsel that it would announce its ruling at a hearing, which was set for August 30.
4. Judicial Notice of 1991 Juvenile Court Documents
On the afternoon of August 29, 2005, the trial court advised all counsel by facsimile message that it had decided on its own initiative to take judicial notice of certain documents from defendant’s 1991 juvenile court file. Copies of the documents were attached to the message.
Most significantly, the documents recounted statements made to the probation officer by defendant and his parents in 1991 that appeared to undercut his claim that he suffered severe mental and physical abuse at the hands of his father. At that time, defendant denied any history of verbal or physical abuse in the family, reported that he had a “great” relationship and “great” communication with his father, and stated that when he did occasionally receive corporal punishment it was his mother who would impose it. He reported that his father was more willing to give him a break than his mother. He told the probation officer that he had run away approximately seven times, and that he ran for “ ‘dumb’ ” reasons such as a bad report card. The report stated: “The minor reports that the biggest problem with his parents is him not keeping his grades up.” According to the report, both of defendant’s parents also reported that defendant had a good relationship with his father.
The report also contradicted Dr. White’s psychosocial history in other respects. Defendant reported that he had lots of friends and activities, although his parents often restricted him to his room and took away his privileges because he was always in trouble. When caught after the 1991 Subway robbery, defendant explained that he let a school acquaintance nicknamed “Kilo” store some marijuana in his school locker and the marijuana had been stolen. Kilo told him to either pay him some money or get the marijuana back. Defendant decided to rob the Subway store as an easy way to pay Kilo.
5. The August 30 Hearing and Romero Ruling
At the outset of the hearing on August 30, the court verified that counsel had in fact received the 1991 documents, and inquired whether the defense or prosecution wished to say anything before the court made its ruling on the Romero motion. Defense counsel responded: “I discussed it with [defendant]. We’re prepared to go forward today.” Cocounsel Fracchia, who had taken the lead in arguing the Romero motion, advised the court that he had gone through the material with defendant and was prepared to comment on it. He told the court that defendant’s denial of a history of abuse in 1991 was in fact typical or common in families where such abuse had taken place, and was therefore not surprising or inconsistent with the information that had been presented in support of the Romero motion. After highlighting portions of the material that he argued were favorable to defendant’s position, Fracchia concluded his argument by saying, “Submitted.”
After the prosecution advised that it had not received the faxed documents, the court summarized their contents for the record, at one point characterizing the information in them concerning defendant’s relationship with his father as being “in stark contrast to the evidence that was presented during the Romero hearing.” The court went on to explain at length the legal framework and factual basis for its decision to deny defendant’s motion. It discussed the particulars of the 1997 crimes, the fear in which he put his victims, and the fact that the robberies were committed less than a year after defendant had gotten out of prison for the 1993 robberies. The court went on to describe the circumstances of the 1991 and 1993 robberies, and the fact that the 1993 robberies occurred two weeks after defendant was released from the Rites of Passage program. The court stated: “It does appear that whenever he’s not in custody, he’s going to rob people, and that custody does not do anything to change his basic character.” The court described defendant’s family as an “intact family” in which both parents were “there for him.” In that connection, the court contrasted Dr. White’s information with the information family members provided “when the juvenile system was desperately trying to salvage this family and everybody was spilling out what was going on inside that household.” The court noted that defendant began stealing at an early age and that the “source of [his] pathology” has not been identified.
Although acknowledging that defendant may have gotten older and more mature, and that he seemed to be trying to help people inside the justice system and educate himself, the court concluded that granting the motion would nonetheless not be in furtherance of justice. As the court summed up its reasoning, “The Court has stated that when he’s not in custody, he robs people. This seems to be the type of person that the three strikes law was meant for. He’s demonstrated by his conduct that he poses a great danger to public safety. [¶] Therefore this Court will conclude that the balance between punishment and mercy in this case must weigh in favor of public safety. And this Court will conclude that it would be an abuse of discretion to grant the motion . . . .”
D. The Sentencing Hearing
After a few postponements, the sentencing hearing was set for December 9, 2005. On December 7, defendant filed a motion to continue the hearing so that he could raise objections to the trial court’s taking of judicial notice of the 1991 juvenile court documents. Defense counsel explained that the motion was filed late because counsel erroneously believed that sentencing had been scheduled for December 16. The prosecution opposed any continuance, and submitted written arguments supporting the propriety of the trial court’s decision to take judicial notice of the juvenile court documents.
At the December 9 hearing, the trial court denied the defense motion for a continuance, but permitted defendant to offer arguments on the issue of whether it had erred in taking judicial notice of the 1991 probation report. Following argument, the court rejected defendant’s position on the following grounds: (1) defendant had waived any objection to its taking judicial notice of the report; (2) the report was based on the same type of family member interviews that Dr. White had relied on in developing her psychosocial history; (3) the report was not a secret and it would have been available to Dr. White and the defense had they thought to request it; and (4) the court had substantial other evidence before it regarding defendant’s record and the facts of the robberies that supported a denial of the Romero motion.
The court took no issue with defense counsel’s representation that neither he nor Mr. Fracchia nor Dr. White had ever seen the 1991 probation report before receiving the court’s August 29 fax.
The trial court sentenced defendant to a total indeterminate term of 125 years to life, plus a consecutive, determinate term of eight years. Defendant timely appealed.
II. DISCUSSION
Defendant contends that the trial court prejudicially erred in taking judicial notice of, and in relying on, hearsay statements contained in the 1991 probation department report.
We find no cognizable error and no prejudice. First, defendant waived his present claim by failing to raise it at the time the trial court decided his Romero motion. Second, defendant was not prejudiced by any assumed trial court error in considering the 1991 document. The trial court did not in fact rely on the 1991 report, and did not abuse its discretion in deciding to deny defendant’s motion. To the contrary, it would have been an abuse of discretion to grant the motion regardless of the truth or falsity of the matters asserted in the document.
The final Romero hearing began at 3:00 p.m. on August 30, 2005. Defendant was represented by two attorneys at the hearing, Carl Spieckerman and Robert Fracchia. Copies of the documents to be judicially noticed had been faxed separately to both defense attorneys the previous afternoon. Both attorneys stated on the record that they had gone through the material with the defendant before the hearing. Attorney Spieckerman specifically advised the court that defendant was prepared to go forward with the hearing, and attorney Fracchia proceeded to make arguments addressed to the contents of the probation report. Defense counsel submitted the Romero issue for decision without raising any objection to the trial court taking judicial notice of it and without requesting a continuance to further consider or present argument on the issue of judicial notice. Counsel also made no objection after the trial court summarized the contents of the probation report or announced its decision to deny the Romero motion.
Defendant first raised objection to the court taking judicial notice of the probation report on the eve of his sentencing hearing, more than three months after the Romero issue had been decided against him. This was too late to preserve the issue for appellate review. (Evid. Code, § 353; People v. Welch (1972) 8 Cal.3d 106, 114–115; Younan v. Caruso (1996) 51 Cal.App.4th 401, 406, fn. 3.) That the trial court addressed the merits of the judicial notice issue at the December 9 hearing out of an abundance of caution does not relieve defendant of his waiver. As the prosecution argued and the court specifically found at the time, defendant had already waived objection by the time of that hearing.
Even assuming for the sake of analysis that defendant had not forfeited his right to appellate review of the judicial notice issue, and that the trial court erred in considering it, defendant still fails to establish that he was prejudiced. Whether defendant did or did not suffer abuse as a child was simply not a material factor in the court’s decision to deny his Romero motion, nor should it have been.
The purpose of the Three Strikes law is to provide longer sentences to, and greater protection to the public from, habitual or “ ‘revolving door’ ” criminals. (See People v. Strong (2001) 87 Cal.App.4th 328, 331–332.) Defendant had the burden of convincing the trial court that the Three Strikes statute should not be enforced against him because the nature and circumstances of his present offenses and prior convictions, and the particulars of his background, character, and prospects, took him outside the spirit of that law. (People v. McGlothin (1998) 67 Cal.App.4th 468, 473–474.) As the trial court fully recognized, the striking of a prior strike conviction is not to be done lightly. It is an extraordinary exercise of discretion comparable to the setting aside of a judgment of conviction after trial. (Id. at p. 474.)
The trial court provided a detailed explication of its reasons for denying defendant’s motion, including a recitation of the facts of defendant’s crimes and of his criminal history. Among other things, the court observed that the 1997 robberies were “extraordinarily serious” crimes that inflicted emotional injury on and “terrorized” the victims, and were carried out in a manner that showed criminal sophistication. The facts of defendant’s 1991 and 1993 robberies showed equal callousness toward the victims. The court observed, moreover, that neither defendant’s experience in Rites of Passage nor his incarceration for the 1993 robberies caused him to hesitate before going on to commit further serious crimes. The 1993 crimes occurred two weeks after defendant’s release from juvenile supervision for the 1991 offense. Following his incarceration for the 1993 crimes, defendant had full family support and was going to school and working, yet, as the court recounted, within a year after his release from CYA defendant threw this opportunity away as well, and committed the 1997 robberies. As the trial court aptly summed it up, “custody does not do anything to change his basic character.”
Regarding defendant’s background, the court noted that he came from an “intact family” and experienced both the benefit and detriment of traveling to different places and living in different countries. Although the court mentioned that the mother’s in-court description of the father as a “terror” was in direct contrast with what was stated in the 1991 probation report, it did not purport to decide which version was closer to the truth or to rely on one version over another in arriving at its conclusions. Instead, it is apparent from reading its statement of reasons that the court’s decision was driven by the serious nature of defendant’s offenses, by his confirmed pattern of recidivism, and by the court’s well-founded unwillingness to expose the public to the danger that defendant’s claim of inner transformation was simply another stratagem for manipulating the system.
On cross-examination, Dr. White admitted that she agreed with doctors who had examined defendant in 2002 that he was feigning mental illness at that time in order to have himself declared incompetent to stand trial. According to his 1993 presentence report, defendant had expressed remorse for the emotional trauma he caused to his 1993 victims.
The trial court stated that it would have been an abuse of discretion to grant defendant’s motion. In our view, that statement would still have been true even if the 1991 probation report had never surfaced. Even if accepted at face value, defendant’s claim of past child abuse neither excuses his past pattern of criminality nor outweighs the danger to which the public would be exposed if he is released.
Although we need not address the merits of defendant’s evidentiary error claim, we do note that his hearsay objection to the consideration of his statements to the probation officer is not well taken. Defendant’s own admissions are not hearsay, and since there is no dispute over the accuracy of the probation officer’s report of those statements, the trial court was entitled to consider them for sentencing purposes. (Evid. Code, §§ 452, subd. (d), 1220; People v. Lamb (1999) 76 Cal.App.4th 664, 683.) In light of the latitude given to sentencing judges to consider “responsible unsworn or out-of-court statements [about the defendant’s life]” so long as there is a “substantial basis” for believing them reliable (People v. Lamb, at p. 683), even reliance on the 1991 statements of defendant’s parents might have been permissible. However, since there were ample other facts in the record that compelled the denial of defendant’s motion, we need not determine whether the reliability standard was met.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Stein, J.