Opinion
H025090.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JERRY EDWARD ORTA, Defendant and Appellant.
In exchange for a sentence of no more than six years in prison defendant Jerry Edward Orta pled no contest to second degree burglary of a vehicle (Pen. Code, § 459) and assault with a deadly weapon (§ 245, subd. (a)(1)). Defendant also admitted having suffered one prior felony conviction within the meaning of section 667, subdivisions (b) through (i). Defendant reserved his right to ask the court to strike the prior conviction allegation at the sentencing phase. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The trial court ultimately refused to strike the prior conviction and sentenced defendant to six years in prison. On appeal, defendant contends only that the trial court abused its discretion in refusing to strike the prior conviction. We shall affirm.
Hereafter, all undesignated statutory references are to the Penal Code.
Defendant argued that he should be permitted to proceed with his appeal without a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 31(d).) The Attorney General conceded the point based upon then-existing appellate case law. Since this appeal was briefed the Supreme Court has conclusively decided the issue. People v. Buttram (2003) 30 Cal.4th 773, 790-791 holds that unless the plea agreement specifies to the contrary, a certificate of probable cause is not necessary to challenge the trial courts exercise of discretion within an agreed maximum sentence. Here, defendant agreed to no more than six years in prison with the understanding that he could argue the Romero issue at sentencing. Thus, no certificate of probable cause was required.
A. FACTUAL AND PROCEDURAL BACKGROUND
Facts are taken from the transcript of the preliminary hearing.
On December 18, 2001 Juan Serna saw defendant carrying two speakers, a metal fire extinguisher and tools that had been taken from Sernas truck Serna ran after him. Defendant warned Serna that he had a gun and he gestured as if he had the gun secreted in the waistband of his pants. In the course of the ensuing struggle Serna was struck between the eyes with the fire extinguisher. Defendant fled. Serna identified defendant in a photographic lineup later that day.
Defendant was charged with second degree burglary (§ 459) and aggravated assault (§ 245, subd. (a)(1)). The information also alleged a 1996 conviction for robbery. (§ 211.) According to defendant, the 1996 conviction involved his robbing a stereo amplifier from an occupied residence. Defendant did not have a weapon, but he did push the victim. He received a suspended sentence and successfully completed probation.
The remainder of defendants criminal record consists of two convictions in 1992, one for assault with a deadly weapon (& sect; 245, subd. (a)(1)) and one for leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). Both were charged as misdemeanors. There is also a 1996 conviction for misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)), a 1999 driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)), and a 2000 conviction for the infraction of possessing an open container in a vehicle. (Veh. Code, § 23223.) Defendant received probation in every case except for the infraction for which he never appeared. He violated probation for the 1999 DUI and probation was revoked. Defendant served some jail time, but had never served a prison term. The 1996 robbery is the only felony on the record.
At sentencing, defendant pointed out that his record was minimal, that his mother had abandoned him when he was six years old, and that he now had serious drug and alcohol problems. He explained that he had four children and played a significant role in the care of the youngest. The mother of his two youngest children was supportive and wished to have him enrolled in a residential treatment program. For these reasons, defendant argued, he should be deemed outside the spirit of the Three Strikes law. The trial court disagreed, stating:
"I dont see anything in this history that causes me to believe that the strike should be stricken, and Im going to deny the motion. The reason for denying the motion is that [defendant] has a prior violence-related conviction, and thats the robbery. And you can minimize it by saying it was just the fact that he walked into the house of some people that he knew and he took a stereo, and he did it by means of force or the threat of force or fear. But the fact is that thats what a robbery offense is. But I think hes using some kind of violence to commit a property crime. That almost is no different than the current offense. He is committing a property crime, which is breaking into a truck and stealing property out of the truck, and at the time hes doing that, hes assaulting the person who comes in and tries to stop him. And I dont believe theres a judge in the state that would strike a conviction in this case. Thats why you go to prison, because when you are out of prison, you dont engage in conduct that is appropriate and compliant with the rules of society.
"Youre telling me that you have been a good father. Youre not a good father. Youre not a good role model when youre out there using narcotics and at the same time engaging in criminal conduct, which is not only stealing property but assaulting others, and I dont think thats a good role model. And so Im sorry that your wife and your children are going to suffer because of your absence, but at some point youll start understanding that you will be held responsible for your bad behavior, just as anyone is."
B. DISCUSSION
Defendants sole contention on appeal is that the trial court abused its discretion in refusing to strike the strike prior.
The Attorney General points out that some courts have held that where the trial court does not favorably exercise its discretion to strike a prior conviction, review is available only when the court was mistaken about its authority or refused to strike based upon a clearly improper reason. (See, e.g., People v. Benevides (1998) 64 Cal.App.4th 728, 734.) We follow those courts that have held that an abuse of discretion standard governs review of a trial courts refusal to strike a prior conviction. (See, e.g., People v. Myers (1999) 69 Cal.App.4th 305, 309.)
Section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The trial court may strike such prior convictions " `in the furtherance of justice " so that a defendant is not subject to the statutorily increased penalty. (Id. at p. 529.) In making its decision, the trial court must consider both the constitutional rights of the defendant, and the interests of society represented by the People. (Id. at pp. 530-531.) That is, "in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . the court in question must consider 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 schemes 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." (People v. Williams (1998) 17 Cal.4th 148, 161.) The spirit of the Three Strikes law is to deter and punish recidivism by making repeat offenders serve longer sentences. (See § 667, subd. (b).) When a defendant is convicted of a felony, the law is satisfied factually that he or she committed it. When the deterrent effect of the law fails and the defendant subsequently commits another felony, he or she becomes a repeat offender and deserves harsher punishment. (People v. Williams (1996) 49 Cal.App.4th 1632, 1638.)
To establish an abuse of discretion the party attacking the sentence has the burden " `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. [Citation.] Concomitantly, `[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." [Citations.] [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance. [Citation.]" (People v. Myers, supra, 69 Cal.App.4th at p. 310.)
In the present case, defendant contends, among other things, that the instant offense was a "scuffle," not a "gratuitous act of violence." He contends that his record and his personal background both weigh in favor of striking the prior felony conviction. But these contentions are no more than a re-argument of defendants motion below. Although the trial court could have accepted the arguments and stricken the prior conviction, it does not follow that by refusing to do so the trial court acted arbitrarily or irrationally. The court balanced the relevant factors. The court considered that the instant and prior felonies both involved a degree of violence. The court expressly balanced the interests of society in punishing and deterring such conduct with defendants personal circumstances and his drug problems. On balance the court found that defendants offenses were encompassed by the spirit of the Three Strikes law. Thus, the trial court was aware of its discretion to strike the strike prior and chose not to do so. Defendant has not shown that the decision not to exercise that discretion was an abuse of discretion.
C. DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. and Bamattre-Manoukian, J.