Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA075836, Robert M. Martinez Judge.
Marilee Marshall, 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, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, JUDGE
Defendant Alfred F. Ortega appeals from a judgment entered after a jury found him guilty of count 1, the lesser offense of petty theft in violation of Penal Code section 484; count 3, possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a); and count 4, resisting arrest in violation of section 148. The trial court found true the allegation as to count 3 that defendant suffered three strike prior convictions within the meaning of section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i). As to count 3, possession of a controlled substance, defendant was sentenced to 25 years to life pursuant to section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). As to count 1, petty theft, and count 4, resisting arrest, defendant was sentenced to 90 days for each crime and given credit for time served. The trial court ordered that defendant’s sentence was to run consecutively to a 16-month sentence imposed in case number KA072864, resulting from a violation of probation.
Appellant was charged in the information in count 1 with second degree robbery in violation of Penal Code section 211.
All further statutory references are to the Penal Code unless otherwise indicated.
CONTENTIONS
Defendant contends that the trial court abused its discretion when it denied his motion to strike his prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero).
FACTS AND PROCEDURAL HISTORY
On July 23, 2006, Akshay Shah and his family were at a park when they were approached by defendant, who was talking loudly to himself. Defendant rifled through a bag owned by Shah’s nephew and removed his glasses. Shah confronted defendant, who displayed a 10-inch knife, concealed in his left hand, with the blade pointing toward his inner elbow. Shah backed away and told the rest of the family to stay away from defendant. Defendant walked about 10 feet away, returned, and put the glasses on the ground next to the bag. Yelling, defendant walked toward the parking lot and kicked a garbage can and sprinklers. Shah called the police. Defendant hit his own vehicle with some branches and loitered about the other vehicles. Later, Shah’s brother’s vehicle was found with a broken rear-windshield wiper blade and bent antenna.
Los Angeles County Deputy Sheriff Thomas Lines approached defendant and ordered him to stop and put his hands up. Defendant ignored his commands, got inside his vehicle, started the engine, and tried to drive off. Another deputy tasered defendant and recovered two knives. When defendant was searched at the station, officers found a plastic bag containing methamphetamine in the right front pocket of his pants. At the time he committed these crimes, defendant was on probation.
DISCUSSION
The trial court did not abuse its discretion when it denied defendant’s Romero motion
Defendant contends that the trial court abused its discretion in refusing to grant his motion to dismiss two strikes. We disagree.
Pursuant to section 1385, subdivision (a), a trial court may, “in furtherance of justice,” vacate the finding that a prior serious felony conviction qualifies as a strike under the Three Strikes Law. (People v. Williams (1998) 17 Cal.4th 148, 151–159.) A trial court’s ruling must be upheld absent an abuse of discretion. (Romero, supra, 13 Cal.4th at p. 504.) “[P]reponderant weight must be accorded to factors intrinsic to the scheme, such as 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.” (People v. Williams, supra, at p. 161.)
Here, the trial court recognized that it had the discretion to strike priors and carefully considered appellant’s violent history in deciding not to strike the prior convictions. It determined that defendant was capable of seriously injuring innocent people and was not able to change his behavior. The trial court noted that defendant had a history of committing horrendous crimes. In 1985, defendant was convicted of second degree robbery (§ 211) and receiving stolen property (§ 496) and was sentenced to six years in state prison. In perpetrating the robbery, defendant wielded a gun and his partner had a knife. Defendant inflicted great bodily harm on the victim by gratuitously kicking and fracturing the victim’s ribs. After he was released in 1990, defendant was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) and mayhem (§ 203) for knifing a United States marine so severely that his organs were exposed.
We conclude that the trial court acted well within its discretion in refusing to strike the two priors arising out of the 1990 incident, assault and mayhem. Defendant had a history of committing violent, serious felonies. Yet, the record shows that the trial court carefully weighed defendant’s circumstances. Although the People requested two consecutive sentences of 25 years to life, for the crime of possession of a controlled substance and for the probation violation, the trial court only sentenced defendant to one term of 25 years to life. With respect to defendant’s probation violation, the trial court struck two priors and imposed a 16-month term consecutive to the 25-year-to-life term. The trial court stated that it was “attempting to place the violation matter in the context, and it is the Court’s view that a term of 50 years to life is not commensurate with the current offenses.”
We are not convinced otherwise by defendant’s contention that the trial court erred by not considering that the two prior convictions, for assault with a deadly weapon and mayhem, arose out of the same acts, and that defendant was sentenced for those crimes pursuant to section 654. As defendant admits, our Supreme Court has held that “when a court has stayed sentence on an otherwise qualifying conviction under section 654, the stayed conviction may be treated as a strike.” (People v. Benson (1998) 18 Cal.4th 24, 26–27.)
We conclude that the trial court did not abuse its discretion in refusing to strike the priors.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.