Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Fresno County, Nos. F09901618, F09903698, James R. Oppliger, Judge.
Thomas M. Singman, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J., and Poochigian, J.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. Below, we provide the following brief description of the facts and procedural history of the case (see People v. Kelly (2006) 40 Cal.4th 106, 110, 124) and we address appellant’s contention that the court abused its discretion when it denied his Romero motion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTS AND PROCEDURAL HISTORY
On March 9, 2009, Ausencio Fernandez’s pickup was stolen from his house in Fresno.
On March 13, 2009, Bob Kirkpatrick’s truck was broken into while it was parked at a Home Depot store.
On March 14, 2009, Fernandez saw his pickup being driven by appellant, Richard Palmerin, on the roadway in front of him and followed it to a gas station. While Palmerin was paying for gas, Fernandez had another man get the keys from the pickup. When Palmerin returned, Fernandez confronted him about stealing the truck. Palmerin then got his coat and shirt from the truck and walked away. However, Palmerin was soon detained and pat searched by police officers who arrived on the scene. In Palmerin’s jacket the officers found a plastic bottle containing a small amount of methamphetamine. They also found a Home Depot identification card and other items belonging to Kirkpatrick in the bed of the pickup.
Palmerin told the officers he bought the truck from a Black man whose name he did not remember, but he was unable to produce a bill of sale he purportedly received from the man (case No. F09901618).
On March 17, 2009, the district attorney filed a complaint charging Palmerin with vehicle theft (count 1/Veh. Code, § 10851, subd. (a)), receiving a stolen vehicle (count 2/Pen. Code, § 496d, subd. (a)), possession of methamphetamine (count 3/Health & Saf. Code, § 11377, subd. (a)), and receiving stolen property (count 4/§ 496, subd. (a)). The complaint also alleged a prior conviction enhancement (§ 666.5) in counts 1 and 2, three prior prison term enhancements (§ 667.5, subd. (b)), and that Palmerin had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise indicated.
The strike allegation was based on Palmerin’s 1984 conviction for robbery.
On April 27, 2009, Palmerin pled no contest to vehicle theft (count 1) and receiving stolen property (count 4). He also admitted the prior conviction enhancement in count 1, one prior prison term enhancement, and the allegations that he had a prior strike conviction. In exchange for his plea the court agreed to strike the prior strike conviction, dismiss the remaining counts and enhancements and an unrelated misdemeanor, and to impose no more than an aggregate term of five years.
On June 10, 2009, the court continued Palmerin’s sentencing hearing after granting Palmerin’s request for a one-day pass on June 20, 2009, so he could attend an interview with the Delancey Street drug program in San Francisco.
On June 20, 2009, Palmerin was released from custody, but he failed to remand himself into custody at the county jail later that day as instructed by the court (case No. F09903698).
On June 25, 2009, Palmerin was arrested.
On July 27, 2009, the court allowed Palmerin to withdraw his plea in case No. F09901618 and the original charges and enhancements in that case were reinstated.
On February 24, 2010, the district attorney filed a consolidated second amended information in both cases charging Palmerin with vehicle theft (count 1), receiving a stolen vehicle (count 2), possession of methamphetamine (count 3), receiving stolen property (count 4), and escape while felony charges were pending (count 5/§ 4532, subd. (b)(1)). The information also alleged a prior conviction enhancement in counts 1 and 2 (§ 666.5), four prior prison term enhancements, and that Palmerin had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
On February 25, 2010, Palmerin pled guilty to counts 2 through 5 and admitted the four prior prison term enhancements and the allegations that he had a prior strike conviction. Additionally, the court granted the defense’s request to dismiss count 1.
On February 26, 2010, the court found true the prior conviction enhancement in count 2.
On May 20, 2010, the court denied Palmerin’s Romero motion finding that it would be an abuse of discretion to grant the motion in light of Palmerin’s “record and the purposes behind the law.” The court then sentenced Palmerin to an aggregate term of 11 years 4 months: the middle term of three years on his receiving a stolen vehicle conviction, doubled to six years because of Palmerin’s prior strike conviction, a consecutive 16-month term on Palmerin’s escape conviction (one third the middle term of two years, doubled to 16 months because of Palmerin’s prior strike conviction), four one-year prior prison term enhancements, and stayed terms on the remaining two counts.
THE ROMERO MOTION
Palmerin’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (Wende, supra, 25 Cal.3d 436.) However, in a letter filed on March 1, 2011, Palmerin contends the court abused its discretion when it denied his Romero motion because the underlying robbery conviction was 25 years old and the court had a pro-prosecution bias. We will reject this contention.
“The Supreme Court has set out guidelines for lower courts to apply in deciding whether to strike a prior Three Strikes conviction under Romero. The touchstone for that determination is 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 [Three Strikes] 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.’ [Citations.]
“Our Supreme Court has also made it clear that appellate review of a trial court’s decision on a Romero motion is not de novo. ‘“[T]he superior court’s order [i]s subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].”’ [Citations.]
“Generally, sound discretion ‘is compatible only with decisions “controlled by sound principles of law, ... free from partiality, not swayed by sympathy or warped by prejudice....” [Citation.]’ [Citation.] ‘“[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.”’ [Citations.]
“A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.…” (People v. Cluff (2001) 87 Cal.App.4th 991, 997-998.)
Palmerin was 46 years old when he was sentenced on May 20, 2010. His probation report discloses a long history of substance abuse that began at age 12 when he began smoking marijuana. At age 16, he began using cocaine. At 17, he began using $100 worth of heroin daily. At the age of 42, he began using crystal methamphetamine.
As a juvenile, Palmerin was adjudicated in 1978 of disturbing the peace and petty theft, in 1980 of battery, and in 1981 of petty theft again. As an adult, he was convicted of robbery in 1984 and sentenced to a term of two years in prison. In 1987, he was convicted of misdemeanor inflicting corporal injury on a spouse or cohabitant and two counts of driving under the influence. In 1989, he was convicted of issuing a check with insufficient funds. In 1990, he was convicted of vehicle theft and sentenced to a prison term of three years. In 1994, he was convicted of petty theft with priors and sentenced to a prison term of 32 months. After his release on May 10, 1999, he was returned to prison three times for parole violations. In 2002, he was again convicted of petty theft with prior theft convictions and sentenced to a 16-month prison term. He was returned four times to prison on parole violations, his last parole arrest having occurred on July 27, 2006.
On March 14, 2009, Palmerin was arrested on the charges underlying case No. F09901618.
On June 20, 2009, he committed the escape offense underlying case No. F09903698 when he failed to return from a one-day pass the court granted him.
Thus, the record discloses that Palmerin has a lengthy history of substance abuse and theft-related criminal conduct, he has served four separate prison terms, and he has violated his parole on numerous occasions. Further, his current offenses followed the same pattern of drug abuse and theft-related conduct in that they involved his possession of property stolen from two victims and a small quantity of methamphetamine. These circumstances amply support the court’s implicit finding that Palmerin could not be deemed to be outside the spirit of the law and its decision not to strike his 1984 robbery conviction.
Further, we reject Palmerin’s claim that the court’s decision not to strike his robbery conviction was influenced by a pro-prosecution bias because he has not cited any evidence in support of this claim. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2.) Moreover, although Palmerin’s robbery conviction was almost 26 years old when the court sentenced him in the instant case, the age of the conviction is only one circumstance a trial court should consider in ruling on a motion to strike a prior strike conviction. The court could also reasonably find that the age of this conviction was outweighed by Palmerin’s lengthy criminal history and the other circumstances discussed above. Accordingly, we conclude that the court did not abuse its discretion when it denied Palmerin’s motion to strike his 1984 robbery conviction.
Further, following an independent review of the record we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.