Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F06900492. Hilary A. Chittick, Judge.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., Cornell, J.
INTRODUCTION
Appellant, Jesse Raya, was found guilty after a jury trial of feloniously driving a vehicle with a blood alcohol content of .08% or higher (Veh. Code, § 23152, subd. (b) count one) and of feloniously driving a vehicle under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a), count two). In a bifurcated proceeding, appellant waived his right to a jury trial on the truth of the special allegations. After receiving evidence and hearing the argument of counsel, the court found appellant had a prior qualifying conviction within the meaning of Vehicle Code section 23550.5 and that he had a prior serious conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b) through (i), and 1170.12, subds. (a) through (d)). The court further found true allegations that appellant had two prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
Appellant filed a request pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) that the trial court exercise its discretion to strike the prior serious felony enhancement. At the sentencing hearing on June 21, 2006, the trial court denied appellant’s request to dismiss the prior serious felony allegation.
The court sentenced appellant to the midterm of two years on count one, which it doubled to four years pursuant to the three strikes law. The court imposed two consecutive one-year prison terms for the prior prison term enhancements for a total prison term of six years. Appellant’s sentence on count two was stayed pursuant to section 654. The court awarded applicable custody credits and ordered appellant to pay a restitution fine. Appellant contends the trial court abused its discretion in refusing to strike his prior serious felony conviction. We disagree and will affirm the judgment.
FACTS
About 7:30 p.m. on August 13, 2005, Deputy Glenn Falls of the Fresno County Sheriff’s Department was on duty around Laton. Falls heard a truck spinning its wheels. Falls pulled in behind the truck. The driver exited the truck and went into a store. When appellant exited the store, Falls noticed his eyes were red and watery and he was having stability problems as he walked. Appellant’s speech was not clear. Falls could smell the odor of beer on appellant. Appellant told Falls he had six beers that day.
Falls contacted the California Highway Patrol (CHP) to send an officer to evaluate appellant’s sobriety. Officer Eric Sherwood of the CHP arrived sometime later. Sherwood detected a strong odor of alcohol coming from appellant and noticed his eyes were red and watery. Sherwood determined that appellant failed the horizontal gaze nystagmus test. Appellant was unable to complete a one-leg stand test. Appellant did better with a Romberg test and a finger counting test, though during the Romberg test he held his hands out rather than keeping them at his side.
Sherwood next performed a Preliminary Alcohol Screening test. Appellant’s preliminary blood alcohol level tests were .196 percent and .192 percent. After determining appellant was under the influence of alcohol, Sherwood arrested him. In jail, appellant elected to take a breath test. The results from those tests showed blood alcohol levels of .14 percent and .15 percent. A criminalist testified that the breath machine in the jail was calibrated properly when appellant was tested.
Appellant’s prior serious felony conviction was in May 1994 for assault to commit rape pursuant to section 220. During the present trial, appellant informed the court that he did not commit that offense and believed he had taken a deal for a simple assault charge. The trial court explained that during trial, the 1994 conviction would only be used for impeachment purposes if appellant decided to testify. Appellant informed the court he did not wish to testify.
Appellant filed a letter prior to sentencing complaining that he was falsely accused of the 1994 crime. Because he was also charged with driving under the influence, appellant admitted a violation of section 220 taking a plea bargain that allowed him to serve less total prison time. On May 17, 2006, the original date set for the sentencing hearing, defense counsel informed the court that appellant sought a continuance because he wanted “to file a writ on his prior case.” Appellant waived time for sentencing and the court granted the motion for continuance.
On June 21, 2006, the court proceeded with sentencing. Defense counsel requested a second continuance so appellant could contact his original counsel “regarding an appeal in his old case.” The court noted that if appellant was collaterally attacking his prior convictions, he could raise them at a later time. The court explained to appellant that if there was concern about his counsel, the performance of the court, or anyone else’s conduct, it could be raised on appeal or in a petition for habeas corpus.
At the sentencing hearing, the court noted that it considered the probation report, the defense motion to strike the prior serious felony conviction, a letter from Barbara Rasmussen, two letters from appellant, several certificates (related to Bible study), and a letter from the jail concerning appellant’s attendance in life changing classes.
Appellant started to bring a motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. When the court explained it would not grant a continuance for that purpose and it expected appellant to be prepared for sentencing that day, appellant backed away from his request to represent himself.
The parties discussed appellant’s request for the court to strike his prior serious felony conviction. The court noted it seriously considered its discretion pursuant to section 1385 to strike the prior serious felony conviction, but elected not to exercise its discretion to do so.
DISCUSSION
Appellant contends the trial court abused its discretion in refusing to strike his prior serious felony conviction. Appellant further argues that the trial court had a duty to investigate the prior conviction and the court records of his underlying conviction. Appellant argues the facts of this offense were not serious. Appellant further requests that this court take judicial notice of the preliminary hearing transcript and the transcript of his sentencing of his 1994 conviction for assault with intent to commit rape.
We initially noted that appellant is not collaterally attacking his prior serious felony conviction on grounds that there was a defect to his plea pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. He could have done so before the trial court. (See People v. Allen (1999) 21 Cal.4th 424, 427, 430-444.) Appellant, however, failed to bring such a motion to the trial court. Appellant should be collaterally estopped from relitigating his 1994 conviction. (See People v. Farnam (2002) 28 Cal.4th 107, 178.)
The nature of appellant’s contention to the trial court and on appeal would best be characterized as an attack on the factual foundation of the 1994 plea itself. A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal. App.3d 815, 820-821.)
We therefore reject appellant’s contention that the trial court erred or abused its discretion in failing to investigate the underlying facts of appellant’s 1994 serious felony conviction. We will deny appellant’s request for judicial notice.
Appellant requests we take judicial notice of only a portion of the record from his 1994 serious felony conviction. Even had he provided the entire record, we would not be inclined to grant his motion for judicial notice.
In reviewing for abuse of a trial court’s sentencing discretion, we are guided by two fundamental concepts. First, the burden is on the party attacking the sentence to clearly demonstrate the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. The trial court’s discretionary determination to impose a particular sentence will not be set aside on review. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).)
Second, a decision will not be reversed merely because reasonable people could disagree. An appellate tribunal is neither authorized nor warranted to substitute its judgment for the judgment of the trial judge. (Carmony, supra, 33 Cal.4th at p. 377; Alvarez, supra, 14 Cal.4th at p. 978.) Taken together, these concepts 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. (Carmony, supra, 33 Cal.4th at p. 377.)
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. In ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation under the three strikes law, on the trial court’s motion pursuant to section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of a defendant’s current felonies and prior serious and/or violent felony convictions, and the particulars of the defendant’s 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. (Carmony, supra, 33 Cal.4th at p. 377; People v. Williams (1998) 17 Cal.4th 148, 161.)
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 sentencing court to explicitly justify its decision to do so. The three strikes law creates a strong presumption that any sentence which conforms to these sentencing norms is both rational and proper. (Carmony, supra, 33 Cal.4th at p. 378.)
The trial court was well aware of its sentencing discretion and carefully considered appellant’s past and current record. (People v. Barrera (1999) 70 Cal.App.4th 541, 555.) Appellant has failed show that the trial court abused its discretion in failing to strike his prior serious felony conviction. Indeed, as respondent points out, appellant is the type of revolving door recidivist contemplated by the three strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 331-332.)
According to the probation report, appellant had convictions in: 1980 for manslaughter, 1982 for vehicle hit and run, 1984 for misdemeanor drunk driving, 1994 for assault with intent to commit rape, 1994 for felony drunk driving, 1997 twice for misdemeanor drunk driving, and 2001 for driving under the influence. Appellant also had violations of parole in 1985, 1986, 1996 and 1998. According to the prosecutor, the 1980 conviction was for involuntary manslaughter.
DISPOSITION
Appellant’s request for judicial notice is denied. The judgment is affirmed.