Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, No. TA105249, Kelvin D. Filer, Judge.
Murray A. Rosenberg for Defendant and Appellant William Carter.
Ronald White, under appointment by the Court of Appeal, for Defendant and Appellant Eric Pious.
Kamala D. Harris, Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez, and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
In a two-count information filed by the Los Angeles County District Attorney, appellants William Carter (Carter) and Eric Pious (Pious) and codefendant Melissa Holman (Holman) were charged in count one with second degree robbery (Pen. Code, § 211). It was further alleged as to this count that: (1) a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(2); (2) the crime was gang-related within the meaning of section 186.22, subdivision (b)(1)(C); (3) Pious had served three prior prison terms (§ 667.5, subd. (b)); (4) Carter had served five prior prison terms (§ 667.5, subd. (b)); (5) appellants had each suffered a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); and (6) Holman had suffered a prior conviction for a serious felony (§ 667, subd. (a)(1)). In count two, Carter was charged with misdemeanor indecent exposure. (§ 314, subd. (1).)
All further statutory references are to the Penal Code unless otherwise indicated.
Appellants and Holman pled not guilty. The trial court struck the prior strike conviction allegation as to Pious. Prior to trial, Carter pled no contest to count two. Appellants and Holman thereafter were jointly tried. The jury found appellants guilty on count one and found the gang enhancement true. The firearm enhancement allegation was found not true. Holman was found not guilty.
Pious admitted the prior conviction allegations, and the trial court found the allegations true. He was sentenced to 14 years in state prison, which consisted of the midterm of three years as to count one, plus one year for one of the prior prison terms, plus 10 years for the gang enhancement. Carter was sentenced to 24 years in state prison, which consisted of the upper term of five years in state prison as to count one, doubled pursuant to the Three Strikes Law, plus 10 years for the gang enhancement, and a total of four years (one year for each prior prison term) for the prior prison term enhancements. Various fines and penalties were imposed.
Appellants timely appealed from the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Traffic Stop of Gray Chevy Caprice on the Morning Prior to the Robbery
Early in the morning of February 19, 2009, Los Angeles Police Officer Ruben Gonzalez conducted a traffic stop of a gray Chevy Caprice at a gasoline station located at 111th and Figueroa. The Caprice had paper plates. Inside the detained vehicle was Carter, who was wearing a black jacket with yellow stripes. At the time of the traffic stop, Carter stated to Officer Gonzalez that he had already received tickets for the same violations and showed the past tickets to the officer.
This jacket was later recovered from an apartment unit when Carter was arrested.
Three hours later, Officer Gonzalez received a radio call about a robbery that occurred at Tam’s Burger on Figueroa.
B. Joreese Jackson’s (Jackson) Account of the Robbery
Jackson, who testified that the perpetrators were not in the courtroom at the time of trial, testified as an uncooperative witness. His testimony that he was unable to recall the events was impeached with a tape recording of his statements to police. His account of the events, as summarized in this statement of facts, is based on the recorded statements, a transcript of which was presented in the clerk’s transcript. Jackson testified that he was unable to identify the perpetrators at a preliminary hearing. Jackson also admitted that he had previously been convicted of numerous felonies, including giving false information to the police. He further stated that prior to the incident, he had finished a bottle of Vodka with his girlfriend, Devora Quinonez (Quinonez), consumed about ten beers, and smoked several blunts of marijuana.
Later in the day on February 19, 2009, Jackson was with Quinonez at Tam’s Hamburger Stand. A Chevy Caprice playing loud music pulled up into the parking lot. Two males exited the vehicle and approached Jackson and Quinonez. A female wearing a “hoodie” with red lining and who had braided hair was also inside the Chevy. The taller of the two men was hearing a black hoodie, had braids, had darker skin, and brandished the butt of a gun around his waist area. The butt looked somewhat “square” and was black in color. The gun looked like a nine-millimeter. The shorter man, who was wearing a puffy jacket that was dark blue or black but had yellow patches on the sleeves, also reached inside his waist band. The two men “got real close” to Jackson. The taller man grabbed the butt of his gun and told Jackson to “empty out” his pockets. One of the men asked whether Jackson was from Hoover. The two men also declared that they were from the Denver Lane Bloods. Jackson replied that he did not “gang bang.” Jackson emptied his pockets and turned over more than $30 to the taller man with braids. The man put the money in his pocket. Jackson said, “God bless you.” The shorter man responded, “God bless you too, this is Denver Lane Bloods. You shouldn’t be up in the... wrong neck of the woods” or words to that effect. Jackson reiterated that he did not “gang bang.”
The two men returned to their vehicle; one of them entered the passenger seat and the other entered the back seat. The car traveled away. When it stopped at a stop sign, Jackson thought the men were going to shoot them. The men looked at Jackson “for a minute” and the car traveled away southbound toward Imperial Highway.
C. Quinonez’s Account of the Robbery
Quinonez testified that at about 3:00 a.m. on February 19, 2009, she and Jackson left their motel room to get food. Neither of them had drunk alcohol or consumed any drugs that night. They had just ordered food at Tam’s Burger when a gray car arrived and two Black males “jumped out of the car.” The taller man was wearing a “black hoodie” and the shorter man was wearing a Lakers or Clippers jacket that was black with yellow or red stamps on it. The taller man had braids; the shorter man had short hair. The taller man had tattoos of drawings and letters. A female wearing a red “hoodie” jacket remained inside the car. The car did not have license plates; instead, it had a paper plate that said “power play.”
It was stipulated between the parties that Quinonez admitted to Los Angeles Police detectives that she had accepted items purchased for her with money stolen from her mother.
The two men approached Jackson and asked him where he was from and whether he was from “Snoovers.” At this time, the taller man was standing in front of Jackson, and the shorter man was standing to Jackson’s right. Due to where she was standing, Quinonez could only see the perpetrator standing in front of Jackson. Jackson said that he did not “gang bang.” Afterward, they told Jackson to “empty out” his pockets. Jackson took money out of his pocket and gave it to one of the men. At some point, the men indicated that they were from the “‘Denver Lane Hood, Blood.’”
The two men returned to the car and left the parking lot. It stopped at 102nd Street and Figueroa for a minute. The car then turned right onto Imperial Highway. According to Quinonez, the female was sitting in the front passenger seat of the car. Two or three minutes after the robbery, Quinonez called 911 using a payphone.
During the telephone call, Quinonez recounted how two Black males exited a Caprice with no plates and that a Black female remained in the car. Quinonez reported that the car had a paper plate that said “‘press play’” and there was a “little circle” with a play sign. She then reported that the two males told Jackson to empty his pockets, and that the two men “had like a pistol or something up under their jacket.” Quinonez told the dispatcher that one of the males was wearing a black jacket and that the other one was wearing a black and yellow jacket. She also noted that the female was wearing a red jacket.
At trial, when she was shown a Lakers jacket recovered from Pious’s residence, Quinonez stated that she thought it was one worn by one of the perpetrators. She identified a black hooded jacket as the one that the other perpetrator was wearing that night. She was positive of the identification because she “was standing right in front of them.”
D. Police Response
Five minutes after the 911 call, Quinonez and Jackson flagged down a police car. Officer Gonzalez, who responded to the scene, took down statements from the victims.
At some point, Los Angeles Police Officer Ryan Moreno sat beside Jackson inside a police car to talk to him. Officer Moreno could discern no distinct odor from him. Based upon Officer Moreno’s experience in conducting driving under the influence investigations, Jackson appeared sober. Thereafter, Officer Moreno interviewed Quinonez and noticed no signs that she was under the influence of alcohol or drugs. Officer Moreno secretly recorded both interviews on his iPhone.
E. Discovery of the Perpetrators’ Car and Identification by the Victims
After receiving a description of a car that was involved in the robbery, Los Angeles Police Officer David Derrick Ybarra conducted a search of the vicinity surrounding the location of the crime. At 4:08 a.m., he found a car fitting the descriptions, parked behind an apartment building on Imperial Highway.
Sometime thereafter, Officer Gonzalez drove to the apartment building on Imperial Highway to observe the car that was found. Officer Gonzalez observed that the car found by Officer Ybarra was the same gray Chevy Caprice that he had stopped earlier in the day.
At about 4:45 a.m., Los Angeles Police Officer Gil Padilla brought Jackson to the location of the car found by Officer Ybarra. Jackson, upon arriving at the parking lot, immediately identified the car as the one used by the perpetrators. Officer Padilla then separately brought Quinonez to the same parking lot, and she also immediately identified the same gray Chevy Caprice as the car used in the robbery.
Los Angeles Police Detective John Parra searched the gray Caprice and found a temporary operation certificate from the Department of Motor Vehicles. He observed that the Caprice only had paper plates.
F. First Contact with Apartment Number 15 and the Resulting Barricade
After finding the car, police officers went to apartment number 15. Carter, who Officer Ybarra recognized from prior contacts, answered the door. He was wearing a black Lakers jacket, which had yellow stripes above the shoulder and a Lakers emblem on the back. As the officers spoke with Carter, Holman appeared wearing a red jacket. Officer Ybarra also saw Pious, who had braids and was wearing a long sleeved sweatshirt. The three individuals were asked by the officers to exit the apartment; they refused. Additional units arrived to barricade the apartment.
At about 7:00 a.m., when the SWAT team was ready to enter the apartment, the three suspects exited the apartment and were detained. Pious was wearing a black hooded jacket. Thereafter, a search of the apartment took place pursuant to a search warrant.
G. Search of Apartment 15
Officer Moreno participated in the execution of the search warrant. The search occurred at about 8:30 a.m. on the day of the robbery. The officers recovered a sweatshirt, which was being worn by Pious at the time of the search. They also recovered a basketball jacket and a red jacket in the same bedroom of the apartment. Holman, who was inside the apartment, asked the officers to look if her cellular telephone was still inside the red jacket. When the basketball jacket was offered to Carter, he indicated that it was not his jacket.
Los Angeles Police Detective Michael James Hansen assisted in the search. Detective Hansen found that one of the windows was open. During the search, Detective Hansen, with the assistance of a canine search, was led to a grassy area in front of the apartment, and he found a black glove, with a Raider’s logo. The butt of a gun was sticking out of it. Detective Hansen showed the glove to Los Angeles Police Officer Sonny Patesenhan. The location of the glove was directly below apartment number 15. Officer Patesenhan examined the gun, a revolver, and found that it had five live rounds of ammunition.
H. Field Lineup
Los Angeles Police Detective Patricia Batts brought Quinonez to the vicinity of Imperial and Hoover for a field showup. Detective Parra drove Jackson to the same location. Detective Parra conducted the field showup for Quinonez. She could not identify Holman when she was shown in the field showup. Quinonez indicated that Carter looked like one of the perpetrators, but she was not sure. She positively identified Pious as one of the perpetrators.
According to the tape-recorded interview, Jackson positively identified two men from the field showup as the perpetrators. He also identified a female from a lineup as being the driver of the Chevy. He also identified the male perpetrator with the darker skin from another lineup. At that lineup, the taller man was wearing the same clothing as at the time of the robbery.
I. Quinonez’s Out-of-Court Identification of Clothing Worn by Suspects
During an interview with Officer Moreno, Quinonez indicated that the shorter of the two perpetrators was wearing the yellow and black basketball jacket. During the same interview, she stated that the shorter perpetrator wore a beanie.
At trial, Quinonez was asked to observe both male defendants in court. She testified that she remembered telling the officers that the two “might or might not” be the perpetrators.
J. Gang Evidence
Los Angeles Police Officer Warner Carias, a gang expert, testified that the Denver Lane gang had about 285 members past and present and that they claimed as their territory the area bordered by 104th Street to the north, Grand Avenue to the east, 120th Street to the south, and Vermont to the west. He testified that the location of the apartment building on Imperial Highway fell within the gang’s territory and, in fact, was a stronghold of the gang. Their rival in the area is the Hoover gang. The area of 101st and Figueroa (where Tam’s Burger is located) is in a territory disputed between the Denver Lane gang, the Hoover Criminals, and the Hard Time Hustlers. The Denver Lanes is a Blood gang and associates itself with the color red. It represents itself using sports teams that share common letters with the name of the gang. For example, its members would associate themselves with the Lakers. The gang’s primary activities include crimes such as murder, attempted murder, robbery, burglary, narcotics sales, and vandalism.
Officer Carias opined that Pious was Denver Lane gang member based upon field identification cards documenting his gang membership, his gang tattoos, his past admissions, and his association with Denver Lane gang members. Officer Carias noted that Pious has a “HK” tattoo on one of his eyes and a tear drop. The “HK” represents “Hoover Killers.” Pious also has a “Denver Lanes” tattoo on his chest.
Officer Carias testified that he did not see any tattoo drawings on Pious, just tattoo letterings.
Carter stipulated at trial that he was a member of the Denver Lanes gang.
Officer Carias believed that Holman was a member of the same gang based upon her past admissions.
Finally, Officer Carias opined that the facts of the crime in the instant case show that the crime was committed for the benefit of a street gang. His conclusion was based on the fact that the perpetrators had asked whether the victim was from the Hoover gang, a question that showed that they were targeting members of a rival gang. The fact that the perpetrators told the victims not to be in the “wrong hood” also demonstrated that they were looking for rival gang members.
DISCUSSION
I. Sufficient evidence supports appellants’ convictions of second degree robbery
Appellants argue that there was insufficient evidence to support their convictions of second degree robbery (count one).
A. Standard of review
We review the judgment for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) That is, to determine the sufficiency of the evidence to support a criminal conviction, “‘an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact’” could find that the defendant committed the offense beyond a reasonable doubt. (People v. Davis (2009) 46 Cal.4th 539, 606.) This standard applies whether direct or circumstantial evidence is involved. (People v. Thompson (2010) 49 Cal.4th 79, 113.)
“[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.) Even when there is a significant amount of countervailing evidence, the testimony of a single witness will suffice to support a criminal conviction. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052; People v. Allen (1985) 165 Cal.App.3d 616, 623.)
Thus, the reviewing court “presume[s] in support of the judgment the existence of every fact that could reasonably be deduced from the evidence.” (People v. Em (2009) 171 Cal.App.4th 964, 970.) In so doing, “we do not judge the trustworthiness of witnesses, reweigh the evidence, or assess for ourselves which interpretation of the evidence is the ‘right’ one.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 166.) In other words, reversal for insufficient evidence is not warranted unless it appears that under no hypothesis whatsoever is there substantial evidence to support the trier of fact’s verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
“‘“Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilty beyond a reasonable doubt.”’” (People v. Stanley (1995) 10 Cal.4th 764, 793.) “‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’” (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
B. Applicable law
To be convicted of second degree robbery, there must be “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211; People v. Harris (1994) 9 Cal.4th 407, 415.)
C. Analysis
Ample evidence supports appellants’ conviction of robbery. Regarding Pious, Quinonez positively identified him in a field showup as one of the perpetrators. He was further linked to the crime because the dark sweatshirt he wore at the time of his arrest was positively identified by Quinonez at trial as the sweatshirt worn by the perpetrator standing in front of Jackson at the time of the robbery.
Regarding Carter, he was linked to the crime by the black Lakers jacket with yellow stripes that he was wearing at the time he was stopped by Officer Gonzalez in traffic sometime before the robbery. He wore the same jacket when Officer Ybarra first made contact with him at apartment number 15 shortly after the crime. And Quinonez testified that she thought the jacket was the one worn by the shorter perpetrator. Specifically, she stated at trial that the shorter perpetrator wore a “Laker[]s or Clippers” jacket that was black with yellow or red stamps on it. In fact, Quinonez described to the 911 dispatcher the perpetrator’s black and yellow jacket. Jackson confirmed by telling police that the shorter perpetrator wore a “dark blue” or “black” jacket with yellow patches on the sleeves.
Carter is additionally linked to the crime because the same gray Chevy Caprice with paper plates that Carter, wearing the same jacket, was driving when he was stopped by Officer Gonzalez was the same car that was positively identified by both Jackson and Quinonez as the car used by the perpetrators.
Taken together, all of the evidence supports appellants’ convictions. Within two hours of the crime, Carter, Pious, and Holman, fitting the perpetrators’ descriptions of two males and a female, were found inside an apartment unit of an apartment complex where the perpetrators’ car was parked; they were found to be wearing or in possession of jackets that were either positively identified by eyewitnesses as the perpetrators’ clothing or matched the descriptions of the perpetrators’ clothing; on the lawn immediately outside of their apartment, the police recovered a discarded pistol. At least one of the three individuals (Pious) was positively identified by Quinonez as one of the perpetrators. And, during the commission of the crime, the perpetrators identified themselves as members of the Denver Lane street gang, to which appellants and Holman belong.
II. Sufficient evidence supports the section 186.22, subdivision (b)(1)(C) allegation against appellants
Appellants argue that there was insufficient evidence to support the jury’s finding that the section 186.22, subdivision (b)(1)(C) allegation was true.
A. Standard of review
The substantial evidence standard of review set forth above applies to gang enhancement findings. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321–322.) In order to prove the elements of a gang enhancement, the prosecution may present expert testimony. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.)
B. Applicable law
The gang enhancement in section 186.22, subdivision (b)(1), imposes additional punishment when a defendant commits a felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1); People v. Hernandez, supra, 33 Cal.4th at p. 1047.) It applies when a crime is gang-related. (People v. Castenada (2000) 23 Cal.4th 743, 745.)
C. Substantial evidence supports the jury’s gang enhancement findings
Ample evidence supports the jury’s finding that the gang enhancement was true. According to both Jackson and Quinonez, the perpetrators of the robbery declared that they were Denver Lane Bloods and asked whether Jackson was from the Hoovers, a rival gang. Jackson reported that one of the perpetrators told him that he was in Denver Lane Blood territory and that Jackson was in the wrong neighborhood.
The victims’ testimony was bolstered by expert testimony from Officer Carias. Officer Carias explained that the Denver Lane gang’s rival was the Hoovers. Tam’s Burger, where the crime occurred, is located within territory disputed between at least these two gangs. Officer Carias also opined that Pious, Carter, and Holman were Denver Lane gang members.
Finally, Officer Carias believed that this crime was committed for the benefit of a street gang, based upon the fact that the perpetrators had asked whether the victim was from the Hoover gang, a question that showed that they were targeting members of a rival gang and the fact that the perpetrators told the victims not to be in the “wrong hood.”
In urging us to reverse, appellants rely heavily upon Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia) for the proposition that there was insufficient evidence that the instant offense was committed with the requisite specific intent to “promote, further, or assist in any criminal conduct by gang members” (§ 186.22, subd. (b)(1)) apart from the instant conviction. Our Supreme Court in People v. Albillar (2010) 51 Cal.4th 47, 64–66 recently rejected Garcia’s interpretation of this language. “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members, ’ rather than other criminal conduct.” (People v. Romero (2006) 140 Cal.App.4th 15, 19.)
Pious further argues that Officer Carias’s testimony was inadequate because he did not explain how robbing a citizen unaffiliated with a street gang furthered gang interests or otherwise benefitted the gang. We disagree. The requirement under section 186.22, subd. (b)(1) that the crime be “committed for the benefit of, at the direction of, or in association with any criminal street gang” sets forth requirements in the disjunctive. (§ 186.22, italics added; Houge v. Ford (1955) 44 Cal.2d 706, 712 [the plain meaning of the word “or” is that only one condition is required].) Thus, so long as the evidence establishes that the crime was committed in association with a gang (which it does), the prosecution need not prove that it was committed for the benefit of or at the direction of the gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
III. Insufficient evidence supports the prior felony conviction finding against Carter
Carter argues that there was insufficient evidence to support the trial court’s finding that the prior felony conviction allegations were true.
A. Procedural background
On August 12, 2009, during trial and just prior to the prosecution’s closing argument, the trial court inquired of the various defense counsel as to how they wished to proceed on the prior felony allegations. Carter’s attorney at that time, Jay Glaser, indicated that Carter would be admitting the priors should it come to that. Thereafter, Mr. Glaser indicated that Carter had “four separate commitments. That’s what we will be admitting. There’s five alleged.”
Later that day, after the jury rendered its verdict, Mr. Glaser stated to the trial court that Carter was “going to admit” the priors. The matter was then put over to September 15, 2009.
At the subsequent court date, after Pious admitted a prior felony conviction, the trial court asked Carter how he wished to proceed on the prior allegations leveled against him. Carter replied: “I wanted [to] have a court trial.” Time was waived by Carter, and the matter was continued to October 20, 2009, for a court trial as to Carter’s prior conviction allegations. Subsequent proceedings, occurring on October 20, 2009, December 8, 2009, January 13, 2010, February 22, 2010, and March 15, 2010, were documented in minute orders contained in the supplemental clerk’s transcripts, but none indicates whether any action was taken with regard to the adjudication of Carter’s priors. No reporter’s transcript was generated for appeal for those dates.
On April 2, 2010, the reporter’s transcript reflects that the parties appeared in court to argue Carter’s motion for new trial, which was brought by Carter’s newly appointed counsel, Ronald White. After that motion was denied, Mr. White stated for the record that it was established at an earlier bench conference that Carter “did admit the strike prior in the past.” Mr. White, however, was not sure whether the same was done as to the section 667.5, subdivision (b), priors. The trial court indicated that its notes reflected that the admission to the priors was “for all purposes.” The prosecutor expressed his belief that Carter had admitted all of the prior allegations. Mr. White then proceeded to argue sentencing based on the premise that the prior conviction and prison term allegations had been previously admitted.
B. Analysis
The People have the burden of proving beyond a reasonable doubt alleged prior convictions. (In re Yurko (1974) 10 Cal.3d 857, 862.) We apply the substantial evidence standard of review to the challenging true finding. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382; People v. Wilson (2008) 44 Cal.4th 758, 806; see also In re Yurko, supra, 10 Cal.3d at pp. 863–864 [before an accused can validly admit a prior felony conviction, he must be advised of, and waive, his rights to a jury trial, confrontation, and his rights against self-incrimination as to the prior conviction, and he must also be advised of the legal consequences of his admission].)
Here, there is insufficient evidence to support the trial court’s finding that Carter admitted all of the prior allegations leveled against him. On October 20, 2009, after Pious admitted the prior alleged against him, Carter demanded a court trial. Later, at the hearing on April 2, 2010, Carter’s new counsel indicated that he was “unclear” as to whether any action was taken on Carter’s section 667.5, subdivision (b), priors. While the trial court stated it was its “understanding” that Carter had admitted the priors for all purposes, and the prosecutor “believe[d]” that everything had been admitted, there is no evidence in the appellate record to support those conclusions. Under these circumstances, we cannot find sufficient evidence to support the trial court’s finding that Carter admitted the priors alleged against him.
In urging us to affirm, the People argue that Carter failed to sustain his burden on appeal by perfecting the appellate record. In other words, his appeal must fail because he neglected to present a complete record that shows error and resulting prejudice. We cannot agree. Carter cannot prove a negative—there is no evidence to support the trial court’s conclusion that he admitted the priors.
Accordingly, Carter’s sentence is vacated and remanded to the trial court.
IV. The trial court did not abuse its discretion in denying Carter’s Romero motion
Carter argues that the trial court erred when it denied his motion to strike his one “strike” prior felony conviction.
A. Applicable Law
Section 1385, subdivision (a), vests the trial court with discretion to dismiss a prior conviction, including a qualifying strike conviction, “in furtherance of justice.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–531 (Romero).) Our review of the trial court’s ruling is governed by principles established in Romero, supra, 13 Cal.4th 497, and elaborated in People v. Carmony (2004) 33 Cal.4th 367 (Carmony). The burden is on appellant “‘“to clearly show that the sentencing decision was irrational or arbitrary.”’” (Carmony, supra, at p. 376.) Sentencing courts must follow “stringent standards... in order to find... an exception” to the Three Strikes law. (Id. at p. 377.) The court (trial or appellate) “‘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 previously been convicted of one or more serious and/or violent felonies.’” (Ibid., quoting People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
The trial court’s power to depart from the sentencing norm of the Three Strikes law is “carefully circumscribe[d], ” and its failure to strike a prior strike conviction would constitute an abuse of discretion in the “extraordinary case—where the relevant factors described in Williams... manifestly support the striking of a prior conviction and no reasonable minds could differ.” (Carmony, supra, 33 Cal.4th at p. 378.)
B. Analysis
Applying the foregoing principles, we conclude that the trial court did not abuse its discretion in denying Carter’s Romero motion. The record here shows that the trial court listened to counsel’s arguments, was aware of its discretion to dismiss, did not consider any impermissible factors, and carefully examined Carter’s prior criminal record and current offense before denying the motion.
As the trial court expressly noted, Carter has “not led a legally blameless life in any sense of the word. And given the nature of the offenses heard in the case, I don’t think it warrants striking the prior.” (See People v. Pearson (2008) 165 Cal.App.4th 740, 749 [finding without merit a defendant’s argument that the prior convictions were remote in time where the defendant led a continuous life of crime].) In other words, Carter “is the kind of revolving-door career criminal for whom the Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320.) Under these circumstances, the trial court rightly refused to dismiss the prior strikes.
Carter’s reliance upon People v. Bishop (1997) 56 Cal.App.4th 1245 is misplaced. In that case, the Court of Appeal reaffirmed that we must apply the abuse of discretion standard of review to trial court orders regarding strikes. (Id. at pp. 1247, 1251.) “Appellate review of [those] decision[s] is limited” (id. at p. 1247) and “what counts” is what the trial court concludes (id. at p. 1251.) By affirming the trial court’s order here, we are simply following the well-established abuse of discretion standard of review to the trial court’s order denying Carter’s Romero motion.
DISPOSITION
The judgments of conviction are affirmed. Carter’s sentence is vacated, and the cause remanded for a new trial to determine the truth of the prior strike allegations and for resentencing.
We concur: BOREN, P. J., DOI TODD, J.