Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR910046
Richman, J.
After pleading guilty to a charge of possessing a controlled substance for sale (Health & Saf. Code, § 11378) and admitting that he had a prior burglary conviction that qualified as a serious felony for purposes of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), defendant Gary Winn Perry moved the trial court to strike the prior conviction as allowed by People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court denied the motion, and then sentenced defendant to state prison for a total term of four years. Defendant appeals, contending only that the trial court abused its discretion in denying his motion. Concluding that nothing like a manifest abuse of discretion has been established, we affirm.
BACKGROUND
On November 22, 2006, the District Attorney of Lake County filed an information in which it was alleged that defendant had committed three felonies and one misdemeanor, all of which were drug-related. It was also alleged that defendant had three prior felony convictions, and that one of them, a 1988 conviction for first degree burglary, qualified as a strike.
On January 24, 2007, defendant entered a plea of guilty to one of the charged felonies, namely possession of a controlled substance for sale, and admitted the allegation that the burglary prior was a strike. The other charges were dismissed on motion of the prosecutor.
On February 20, 2007, defendant filed a “Request for Dismissal of Strike and Statement in Mitigation.” In it, he argued that the burglary conviction was 18 years old, and occurred when he only 24 years old. All of his subsequent legal difficulties were attributable to his substance addiction. And to combat that, if given the chance by the court, defendant was ready to enter a one-year residential treatment program that had already accepted him.
The sentencing hearing was on March 5, 2007. After stating it had read defendant’s papers, the court heard brief argument from defendant’s counsel: “[T]his is a matter which occurred over 18 years ago, residential burglary conviction. Since that time there have been no convictions for violence, he has acquired no other strikes. [¶] It appears to me that with regard to Romero and its prodigy [sic: progeny] that this is the proper case within the spirit to find it’s outside the realm to consider it as three strikes; and under the totality of the circumstances, it’s the defense’s request that the Court dismiss the strike in the interest of justice.”
The prosecutor responded with similar brevity: “The age of the prior is getting toward the outside of the envelope where you would certainly want to look at the Romero issues. I can understand that. [¶] However, when you look at his entire record there’s been no significant break in the criminal activity. It pretty much continues from ‘78 right on through the present. [¶] Since that strike in ‘88 he had two additional felonies, not counting this one, and a prison prior, and he’s been on parole most of that time. [¶] So there has not been what I would normally think of as a cleansing out period or a clean wash period where it would be appropriate for one to say, okay, . . . this current matter is an aberration from the conduct of the last 18 years. It’s not. It’s perfectly in line with that conduct for the last 18 years.”
Defense counsel then closed the argument: “I would just note that he [defendant] has not maintained a perfect conviction free record since the time he picked up the strike, all of his convictions are possession related, which although Mr. Perry in this case [pleaded] guilty to an 11378, a possession for purposes of sale, the theme is consistent. Mr. Perry has a drug problem. [¶] And since that time . . . that he suffered that strike through now all of his convictions have been either felony or misdemeanor possession of a controlled substance. No other burglaries, robberies, crimes of serious or violent felonies.”
After defense counsel finished, the prosecutor observed that “I believe he also had an escape, originally escape with force or violence. Apparently that was 17(b)ed [i.e., reduced to a misdemeanor] in Sonoma County in 1989,” to which the court replied, “Correct.”
The court then ruled on defendant’s motion as follows: “The Romero motion is submitted. The strike that causes the defendant to be ineligible for probation did occur back in September of 1988. So it is an old strike. [¶] However, the defendant has had pretty consistent law violations since that time; and I agree with the comments of the district attorney . . . that he hasn’t had a significant period of time where he has been free from law violation. [¶] And I therefore based on that decline to strike the prior serious felony conviction under the Romero case.”
The court then accepted the recommendation of prosecutor and the probation officer for imposition of the middle term of two years, which the court then doubled pursuant to the “Three Strikes” law (Pen. Code 1170.12).
Defendant filed a timely notice of appeal.
DISCUSSION
Our Supreme Court has held that “a court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) The court went on to explain just what this means in application:
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence 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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed on appeal 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.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.
“Because ‘all discretionary authority is contextual’ [citation], we cannot determine whether a trial court has acted irrationally or arbitrarily in refusing to strike a prior conviction allegation without considering the legal principles and policies that should have guided the court’s actions. We therefore begin by examining the three strikes law.
“ ‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court ‘conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, the defendant should be treated as though he actually fell outside the Three Strikes scheme.’ [Citation.]
“Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . or in reviewing such a ruling, 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 scheme’s spirit, in whole or in part, and hence should be treated as though he had not been previously convicted of one or more serious and/or violent felonies.’ [Citation.]
“Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.
“In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs 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]. Moreover, ‘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.]
“But ‘[i]t is not enough to show that reasonable minds might disagree about whether to strike one or more’ prior conviction allegations. [Citation]. Where the record is silent [citation], or ‘[w]here 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 court’s ruling even if we might have ruled differently in the first instance’ [citation]. Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (Carmony, supra, 33 Cal.4th 367, 376-378.)
Defendant and the Attorney General are in broad agreement about defendant’s criminal history as set out in the probation officer’s report, as follows:
(1) A juvenile adjudication for burglary in 1978, resulting in six months informal probation.
(2) A juvenile adjudication for petty theft in 1980, for which defendant was sent to the county youth camp.
(3) A 1985 conviction for possession of a controlled substance that was reduced to a misdemeanor (Pen. Code, § 17, subd. (b)); diversion was initially granted but then “terminated unsuccessfully,” following which defendant was granted probation that was “successfully terminated” in 1987.
(4) Two felony possession charges in 1987, together with a misdemeanor conviction for possessing a hypodermic syringe, for which defendant was given three years’ probation.
(5) The strike conviction for first degree burglary in 1988; convicted also of conspiracy, two more possession charges and another syringe possession charge, defendant violated his probation and in 1989 was committed to state prison. One of the conditions of his probation was completion of a residential drug treatment program.
(6) One of the reasons probation was revoked was that in 1989 defendant escaped from the county jail. The escape was charged as a felony because it was accomplished with force or violence, but it was reduced to a misdemeanor “per 17b PC, 12 months conditional sentence, 1 year jail.”
(7) The next entry is for a 1993 conviction for possession, for which he was sentenced to six months in the county jail.
(8) Later in 1993, a possession for sale charge that was reduced to simple possession, together with a prior conviction enhancement. The disposition was described as follows: “12/04/93, criminal proceeding suspended send to CRC [California Rehabilitation Center] 04/27/95—VOP [violation of probation] 06/19/96—VOP 03/27/98—VOP 09/15/98—CRC terminated 2 years CDC, 667.5(b) enhancement stricken 12/07/98—VOP.” Defendant told the probation officer he spent only four months in prison before he was paroled.
(9) The “03/27/98—VOP” that led to revocation of defendant’s CRC commitment was yet another possession charge, another syringe possession, and a count for “537e(a) PC (. . . buy/sell article w/ identity removed),” all of these offenses being misdemeanors; in September 1998 defendant was sentenced to county jail.
This was the state of affairs at the time defendant was arrested for the latest offenses on July 21, 2006.
Defendant looks at the court’s denial of his motion as based on the court’s agreement with the prosecutor that defendant “hasn’t had a significant period of time where he has been free from law violation.” He then detects a misapprehension of fact that amounts to an abuse of discretion, and even a violation of due process. According to defendant, the court was wrong because from 1998 to 2006 he remained “unincarcerated” and uncharged, and this period qualifies as “a significant period of time.” Put in slightly different terms, defendant maintains that the trial court’s determination of what amounted to as “a significant period of time” was “factually unsupported,” which in turn makes it one of the “impermissible” factors put outside the ordinary realm of abuse of discretion inquiry by Carmony. We do not agree.
Just what would qualify as “a significant period of time” is, in the Supreme Court’s characterization, “ ‘contextual.’ ” (Carmony, supra, 33 Cal.4th 367, 377.) Significance is not a precise or static concept, but a term that ordinarily derives meaning only when considered in relation to a specific setting. To determine whether a period of time is significant obviously requires points of reference. What is a significant period to one person may not be to another. In other words, just what qualifies as significant is a subject on which reasonable minds could differ. Defendant views the 1998-2008 period as significant; the trial court did not. The court’s conclusion was not “so irrational or arbitrary that no reasonable person would agree with it.” As such, it is not reversible abuse. (Ibid. [“ ‘a “decision will not be reversed merely because reasonable people might disagree” ’ ”].)
Defendant further mistakes the proper scope of the trial court’s inquiry in considering defendant’s Romero motion. Defendant does his best to shift attention away from the instant offense, but the court had to consider it. “ ‘[I]n 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 scheme’s spirit, in whole or in part, and hence should be treated as though he had not been previously convicted of one or more serious and/or violent felonies.’ [Citation.]” (Carmony, supra, 33 Cal.4th 367, 377, italics added.)
The fact of defendant’s addiction may, for purposes of argument, be conceded. But it does not stand alone. It must be considered in light of defendant’s entire record. That record showed that defendant had twice already been given an opportunity to address his addiction, first in 1988 when he was ordered to complete a residential treatment program as a condition of probation, and second in 1993 when he was committed to the California Rehabilitation Center. Both of these opportunities went for naught. Thus, in considering defendant’s “ ‘character and prospects,’ ” (Carmony, supra, 33 Cal.4th 367, 377), the trial court was not compelled to conclude that the third time would be the charm. And it cannot be denied that the nature of the instant offense hardly works in defendant’s favor. The trial court could hardly be oblivious to the fact that defendant was now guilty of a violent felony.
Carmony established the many hurdles a criminal appellant must surmount before securing a reversal. In addition to the normal appellate presumptions in favor of the trial court’s ruling, there is a presumption that enforcing the three strikes law, and not granting leniency, is “rational and proper.” (Carmony, supra, 33 Cal.4th 367, 378.) The trial court can grant leniency only in “extraordinary” instances where the “stringent standards” governing application of the three strikes law can be relaxed. (Id. at pp. 377-378.) “[T]he circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.)
Defendant’s was not an extraordinary case. It was, at best, one where reasonable minds could disagree about a single subjective topic, namely, whether defendant “had a significant period of time where he has been free from law violation.” That question, even if answered in defendant’s favor, implicated only a topic that could not, by itself, be dispositive. Even if the trial court accepted that defendant had lived a significant period of time as a law-abiding citizen, that would not obligate the trial court to ignore the intent behind the three strikes law, defendant’s history, and the nature of the prior offense. In short, there is no basis for concluding that the trial court was compelled as a matter of law to grant defendant’s motion.
DISPOSITION
The judgment of conviction is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.