Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA082033. Steven D. Blades, Judge.
Marta I. Stanton, 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, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendant Tuan Nguyen appeals from a conviction of residential burglary. His sole contention is that the trial erred in denying his motion to strike three prior convictions alleged pursuant to the “Three Strikes” law. We affirm.
Penal Code section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i).
FACTUAL AND PROCEDURAL BACKGROUND
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established that at about 2:30 p.m. on February 7, 2008, Eric Chang was not home. His next door neighbor, Nadine Schwartz, knew Chang was not home when she noticed a car that she did not recognize backing out of Chang’s driveway. When she saw a man climbing over the wall in her backyard into Chang’s yard a few minutes later, Schwartz called the sheriff’s department.
Chang’s other next door neighbor, Robin Harrington, looked out her front window after receiving a telephone call from Schwartz. Harrington saw an unfamiliar car parked in front of her house and when she looked into her backyard, she saw defendant running up a slope. In response to Harrington’s inquiry, defendant said he was looking at the view. While defendant was walking out of Harrington’s yard and getting into the driver’s side door of the car she had seen parked in front of her house, Harrington photographed him. As defendant drove away, Harrington saw that there were police vehicles parked down the street. She showed the pictures she had taken to the officers, zooming in on the license plate number of the car defendant drove away.
Defendant was stopped by deputy sheriffs a little while later. Two cameras, several thousand dollars in cash, several watches and various items of jewelry were found in defendant’s car; a Rolex watch and a lady’s wedding ring were found in his pocket. Schwartz and Harrington were brought separately to a nearby location and each identified defendant as the person they saw in their respective backyards. Defendant was arrested and the officers returned to Chang’s home where they discovered pry marks on his backdoor. After Chang determined that he was missing items similar to those found in defendant’s car, the officers showed Chang the items they recovered, some of which Chang identified as his missing property.
Defendant was charged by amended information with residential burglary (§ 459); three prior convictions were alleged pursuant to the Three Strikes law, section 667, subdivision (a)(1) and section 667.5, subdivision (b). After a jury convicted him of burglary, defendant admitted the three alleged priors. Defendant moved, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-531 (Romero), to dismiss the three strikes priors on the grounds that they did not involve violence, possession of a deadly weapon, or threats against a person. On the contrary, he argued, his problems stemmed from a gambling disorder which was treatable. The trial court denied the motion and sentenced defendant to 35 years to life comprised of 25 years to life for burglary pursuant to the Three Strikes law, plus two consecutive 5-year enhancements (total of 10 years) for two prior convictions pursuant to section 667, subdivision (a)(1).
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court abused its discretion by denying his Romero motion. We disagree.
Under Romero, a defendant who is subject to a second or third strike may move the court to “strike” the prior conviction in the interests of justice. The decision rests in the trial court’s discretion. (Romero, supra, 13 Cal.4th at p. 530.) In People v. Williams (1998) 17 Cal.4th 148, 161, our Supreme Court explained that in exercising its discretion, the trial court must determine 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.”
To warrant reversal, there must be a showing that the trial court abused its discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-375.) In other words, the trial court’s “decision [was] so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) In Carmony, the court observed that the Three Strikes law creates a strong presumption that any sentence that conforms to the norms prescribed by the statute is both rational and proper but the sentencing norms established by the Three Strikes law may, as a matter of law, produce an arbitrary, capricious or patently absurd result under the specific facts of a particular case. (Carmony,at p. 377.)
Here, defendant was 38 years old. His probation report reflected a criminal history that included a 1990 conviction for forgery with a suspended sentence; a 1993 conviction in Texas for forgery with a four-year confinement; a January 2003 conviction for burglary that resulted in a four-year prison sentence; and a November 2003 conviction for burglary and receiving stolen goods with three years’ probation. In support of his Romero motion, defendant submitted letters from his friends, family and coworkers describing his traumatic escape from Vietnam as a child and attesting to the kindness he had shown to his friends and family over the years. At the sentencing hearing, the trial court stated: “I was conflicted about this case for a long time. The Three Strikes sentence is obviously severe, and it caused me deep concern. And I gave it a lot of thought and lost a little sleep and went out my way, I think, to educate myself on this area of the law.” But after an extensive colloquy about defendant’s alleged gambling problem, past performance on probation and parole, and the nature of this conviction and the priors, the trial court concluded that the circumstances did not warrant striking the strikes. Based upon the record, the trial court’s conclusion that defendant was not outside the spirit of the Three Strikes law was not arbitrary and therefore, not an abuse of discretion.
The People’s written opposition to defendant’s Romero motion discussed other criminal events that the prosecution learned of from various sources but which were not reflected in the probation report. The trial court declined to consider these.
DISPOSITION
The judgment is affirmed.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All future undesignated statutory references are to the Penal Code.