Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206531, David M. Gill, Judge. Affirmed.
BENKE, Acting P. J.
A jury convicted Yassir Ojok of one count of grand theft (Pen. Code, § 487, subd. (a)). In a separate proceeding, Ojok admitted he had a prior serious/violent felony or strike conviction (§ 667, subds. (b)-(i)). The trial court denied Ojok's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497) to dismiss the prior strike conviction. The court sentenced Ojok to four years in prison: the midterm of two years doubled under the "Three Strikes" law.
Statutory references are to the Penal Code.
The court granted a section 1118.1 motion to dismiss a robbery count, and the jury returned a not guilty verdict to a burglary count.
Ojok appeals. He contends the court abused its discretion by denying his Romero motion.
FACTS
On the evening of May 11, 2007, Scott Murphy and Logan Bestwick had a number of friends, including two who were visiting from Los Angeles, over at their Mission Beach apartment. The gathering broke up around midnight. About one-half hour later, the couple from Los Angeles went to bed in the loft, and Murphy and Bestwick went out to get something to eat. They left the door unlocked and the lights on.
As Murphy and Bestwick were returning to their apartment, they saw three black men walking down the staircase from the apartment. One of the men was carrying Murphy's iPod speakers under his arm. Murphy was able to retrieve his speakers, but was elbowed in the face in the process. Murphy was not sure whether he was struck intentionally or accidentally. Meanwhile, Bestwick had run up the stairs to see if anything else had been taken from the apartment. When Bestwick shouted that his laptop computers were missing, the three men started to run away and were followed by Bestwick and Murphy. Bestwick called 911.
Ojok and codefendant Ahmed Nue Adan were tried together. Adan told police he and some friends had driven to Mission Beach and were looking for a party. Adan admitted he entered the apartment and took an Xbox game console. Police recovered the Xbox after Adan told them where he had hidden it.
Adan is not a party to this appeal. As with Ojok, the jury found Adan guilty of grand theft and acquitted him of residential burglary, and the trial court earlier had granted a section 1118.1 motion to dismiss a robbery count. (See fn. 2, ante.) The trial court granted Adan, who had no criminal history, probation.
Ojok told police he had entered the apartment, touched an Ipod and touched the wires attached to the back of an Xbox game counsel. Ojok denied taking anything from the apartment and said he entered the apartment believing there was a party.
Bestwick identified Ojok at trial as one of the three men he saw on the staircase. Previously, Bestwick had not identified Ojok either in a photo lineup or at the preliminary hearing.
According to a prosecution witness who was given immunity to testify, Ojok and Adan went into the apartment together, but Ojok did not take anything from the apartment.
In addition to Murphy's iPod speakers, his 2005 Xbox 360 game console and wireless controller were taken. The value of these items at the time of purchase was approximately $550. In addition to Bestwick's two laptop computers, his iPod and a digital camera were also taken. The value of these items at the time of purchase was approximately $3,200.
DISCUSSION
Ojok contends the trial court abused its discretion by denying his Romero motion to dismiss his prior strike conviction. The contention is without merit.
Before the court was 20-year-old Ojok, a refugee from Sudan, who came to the United States at the age of 10 or 12. The instant offense is his second felony. In February 2005, Ojok burglarized a residence. After he pleaded guilty to that offense, Ojok was placed on probation for three years. Thus, Ojok was on probation at the time of the instant offense.
We review a trial court's decision not to strike a prior conviction under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); see also Romero, supra, 13 Cal.4th at pp. 530-531.) Under this standard, we do not reweigh the sentencing factors or substitute our evaluation for that of the trial court. A " ' "decision will not be reversed merely because reasonable people might disagree . . . " ' "; rather, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances [, such as] 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], [or where] '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. [Citation.]" (Carmony, supra, 33 Cal.4th at pp. 377-378.)
A trial court must also "consider whether, in light of the nature and circumstances of [the 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" before exercising its discretion to strike a prior felony conviction. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
The experienced trial judge in this case was clearly aware of his discretion to dismiss the prior strike conviction. In deciding not to exercise that discretion, the court observed that although Ojok is young, he had committed two felonies within a two-year period and had committed the current offense while he was on probation. The court also disputed defense counsel's suggestion that the current crime was relatively minor; the court observed there is a substantial risk of violence when burglars enter an occupied residence. The court also pointed out the prior strike conviction was not a minor offense either, and Ojok had not paid any of the $7,500 in restitution owed to the burglary victims.
The record amply supports the court's exercise of its discretion not to dismiss the prior strike conviction. Ojok had not shown that he warranted departure from the legislatively preferred three strikes sentencing scheme. Because he had made no effort to change his criminal behavior, Ojok is the type of recidivist who falls wholly within the "spirit" of the three strikes law. (Williams, supra, 17 Cal.4th at pp. 162-163.) Under these circumstances, we cannot find that the court abused its broad sentencing discretion in this matter. (Carmony, supra, 33 Cal.4th at pp. 377-378.)
Ojok's claims the court improperly emphasized the danger presented by a residential burglary and ignored the jury's acquittal of that charge. We are not persuaded. When faced with the decision whether a particular dismissal is in the furtherance of justice, a court must consider "the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects." (Williams, supra, 17 Cal.4th at p. 161.) That is what the court did here. This particular grand theft offense was committed when Ojok and his friends entered an occupied residence and took property belonging to Murphy and Bestwick. The court properly considered those facts in deciding whether to dismiss the prior strike conviction. (Ibid.) Despite Ojok's argument to the contrary, the court was aware that Ojok had been acquitted of the burglary charge.
We also reject Ojok's assertion the court overlooked his difficult childhood as a refugee from Sudan. The court described Ojok's childhood as "dismal" and said it would not "visit his past on anybody."
Later in the hearing, when considering which sentence to impose, the court observed Ojok had told the probation officer he and his family had a good relationship. Ojok also said he had a normal childhood and had been treated "as a child is supposed to be treated."
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., McINTYRE, J.