Opinion
E051732 Super.Ct.No. SWF025121
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. PATRICK LYNN RISBECK, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Charles Ragland and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Charles Ragland and Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Patrick Lynn Risbeck of two felony counts of stalking (counts 1 & 2—Pen. Code, § 646.9). Defendant thereafter admitted having incurred a prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)). The trial court sentenced defendant to an aggregate, determinate term of five years, four months.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal defendant makes three arguments: (1) substantial evidence does not support the jury's inherent finding that defendant made credible threats to the victims; (2) the trial court erred in failing to give a sua sponte jury instruction defining constitutionally protected activities; and (3) the trial court abused its discretion in declining to strike defendant's prior strike conviction. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. COUNT 1—THE PARKER FAMILY
Mary Parker testified that shortly after moving into a Lake Elsinore neighborhood in July 2004, her children complained one of their neighbors, defendant, was following them. In January 2005, defendant attempted to hand her something while standing in front of her mailbox; Mary testified she told him, "'No, thank you,'" and asked him not to follow her children. Defendant responded that if she was not "for" him, she must be "against" him, and she would regret it. Defendant drove off and "[g]ave [her] the finger." The next day, as Mary pulled up to her home, she saw defendant was parked in her driveway, obstructing her access. She instructed her children to go inside the house and lock the door; she called her husband. Defendant sped off when he saw her on the phone; while driving off he again "[g]ave [her] the finger." On another occasion that month, Mary left work to pick up her children from school and drop them off at home. When she arrived home, she saw defendant had again parked his vehicle in front of her driveway. She felt uncomfortable leaving the children home alone while she returned to work, so she decided to take them back to work with her. Defendant began tailgating her; he followed her for four to five miles. She became "[v]ery frightened" and called 911.
For ease of reference, and meaning no disrespect, the victims will be referred to by their first names after their initial identification.
Mary continued to have problems with defendant on a daily basis for months. When defendant would see Mary out driving with her children, he would swerve his vehicle to force her off the road. Defendant would follow Mary's vehicle, flashing his lights, tailgating her, flipping her off, and making vulgar gestures with his tongue. Defendant would regularly drive through their cul-de-sac and park in front of the Parker home. When Mary's husband, James, attempted to speak with defendant, defendant began yelling and screaming that Mary was a "'fucking cunt'" and a "'fucking bitch,'" while swinging his arms.
On July 23, 2007, as Mary was driving home, she noticed a trashcan in the middle of the street in front of defendant's home; defendant was out in front of his home. Mary asked him to put it away so that no one would get into an accident; defendant replied, "'No, fuck you,'" and walked away. The next day a large white board was propped up against defendant's car reading "'Have a nice fucking day, Judge Judy.'" On February 22, 2008, Mary was out driving and noticed defendant in the vehicle in front of her. Defendant pulled off to the side of the road and then pulled up directly behind her; he began tailgating her while yelling and screaming. Defendant was pounding his fist and then took his finger and dragged it across his throat. Mary called the police.
On March 10, 2008, the Parkers were leaving for dinner; their children were home with a babysitter. They noticed defendant in his car stopped at a stop sign. They went to the store, returned five minutes later and noted defendant remained at the stop sign. They drove up to defendant and James asked that he not start harassing them again; defendant "flipped [James] off" and told him to come to defendant's house to settle the matter.
The incidents made Mary "feel scared and afraid"; they also made her worry about the safety of her children. James testified that Mary had become a "wreck" due to the incidents with defendant; she became scared to the point of obtaining a Taser gun, which she carried with her at all times. Both Mary and James believed their autistic son had regressed due to defendant's behavior. James was fearful for his family's safety.
Deputy Sheriff Rob Stewart testified that while he was on duty in the lobby of the Lake Elsinore station on February 29, 2008, Mary came in to report having a problem with her neighbor. She was distraught, upset, visibly scared, and crying. Deputy Sheriff Michael Dean testified that he responded to a call regarding harassment against Mary by defendant.
B. COUNT 2—ROBBINS FAMILY
Valerie Robbins testified that defendant was one of her neighbors. In August 2004, she began to have problems with defendant after her husband, Michael, was engaged in a verbal altercation with defendant. Michael testified he had left a neighbor's home and noticed defendant peering out of the bushes at him. Defendant then "[gave Michael] the finger" and started calling him names. Defendant said, "'What are you doing punk,' [and] 'Come around here, I'll kick your ass, old man.'" Nearly every day thereafter, defendant would be waiting for Michael, with his shirt off, trying to get Michael to stop. When Michael did not stop, defendant would "give [him] the finger." Defendant started wearing wigs and would beckon Michael to "Come on[,] come on." One time defendant was wearing a "Jason," mask holding a broomstick, which he broke over his knee and then pointed at Michael, as Michael passed by.
The "Jason" mask is an apparent reference to a hockey mask worn by the antagonist serial killer in the series of "Friday the 13th" movies.
On another occasion, Michael, his 11-year-old daughter, and her friend, walked past defendant's home on their way to the video store. Defendant came out of his house and attempted to entice Michael into a fight. Defendant called him names and said he would "'[k]ick your ass, old man. I'll put you in the grave.'" Michael walked past defendant's home; however, on their way back, defendant continued to taunt Michael. Defendant then "started blurting out things like . . . '[y]ou even F your own daughter.'"
Defendant and his daughter started filming the Robbins's daughter as she passed by defendant's home after school; the incidents caused the Robbins's daughter to cry. Defendant began driving by the Robbins's home filming five to eight times daily; sometimes his daughter would film. Defendant would drive by as early as 3:30 a.m. and as late as midnight; however, he most often would drive back and forth in front of their home between 3:00 and 5:00 p.m. The People played a video recorded by defendant during which he drove back and forth in front of the Robbins's home five or six times, and could be heard saying "I'm your boogy man, that's what I am. Mr. Perfect. Um, looks like he's had enough. Yeah, middle of the morning and the middle of the night. I'm your boogy man, that's what I am. I'll get you whenever I can."
When Michael left for work in the morning, defendant would shine his "brights" on him. He would drive by the Robbins home, pull into a driveway a few doors down, and then drive back past their home again. On occasion, he would call them "losers" and tell them he was "taking them back to court." Defendant would park in front of the Robbins's home, wait in his vehicle, "give [them] the finger" when he saw them, then leave. Defendant had a sign that read "'kill,'" which he would hold up when he was at the corner of their home. On another occasion defendant drove by their home with a sign reading, "'I'll get you.'" On several occasions as he was driving by defendant made motions with his finger as if he were shooting a gun at them. At some point, Michael became fearful that defendant would pull out a real gun and start shooting. Michael had seen defendant brandish a rifle on a prior occasion. The Robbinses felt compelled to stop spending time out on their front porch due to defendant's behavior.
Defendant followed Valerie five or six times; he would come up closely behind her and then start "tailgating and honking and swerving back and forth, and yelling and flashing his lights, and laughing." On one occasion defendant drove his car within inches from colliding with her; Valerie then saw him laughing. The Robbins family was afraid of defendant due to his behavior. Valerie's son was afraid to take the trash out after dark out of fear of defendant.
If defendant were in front of his house when they drove by, he would "give [them] the finger." Defendant put up a large sign in his yard, which initially read "'loser'" with an arrow pointing towards their home, but which he later changed to read "'Mike is a loser.'" Defendant later placed a dummy in his front yard clothed in jeans, a flannel shirt, and a construction hat, which was later replaced with a red Angels baseball hat; the Robbinses believed the dummy was an attempt to emulate and disparage Michael, who was a construction worker and Angels fan. Due to defendant's behavior, the Robbinses frequently took alternate routes to and from home to avoid driving by defendant's home. Defendant also had a view into their backyard, so they became uncomfortable spending time there as well.
On Superbowl Sunday in 2008, defendant showed up at the Robbins's house and accused them of calling the police on defendant, for driving around in a local field. The following Sunday, Michael came home and told Valerie to call the police; defendant was yelling at Michael and walked up their driveway holding a bottle by its neck like he was ready to swing it at Michael. "It was a glass, clear bottle, about two and half feet tall, filled up with rocks, like kitty litter. And inside those rocks was like a paper doll cutout of my husband wearing a red shirt." Defendant threw the bottle into Michael's truck through an open window. Defendant then pulled down his pants, baring his buttocks, yelling "'I'll get you.'" Valerie testified, "It was very frightening. I mean what is he trying to tell us? Is he trying to tell us that he's going to bury my husband? We didn't know. And plus, the bottle could have been a weapon." Valerie was scared; she was afraid defendant was going to hurt Michael.
Later that same day the Robbinses went to the video store; they noted defendant's vehicle in the parking lot, so Valerie parked a distance away to avoid running into defendant. Defendant then drove behind their vehicle and stopped, blocking their egress. When Valerie held up her cell phone as if to take a picture, defendant immediately left.
C. OTHER RESIDENTS
Rockney Hudson, another individual living in the neighborhood, testified that he had experienced multiple problems with defendant. Defendant had repeatedly parked in Hudson's driveway. Defendant filmed Hudson's home continuously while driving by; sometimes he would park two houses down and just film. On other occasions he would park directly in front of Hudson's home and film. Once, defendant drove by Hudson's home and made "the middle finger gesture" at Hudson's 17-year-old daughter. Another day, while Hudson was sitting in his driveway talking with friends, defendant pulled up in his vehicle and yelled "'Do it again, do it again, and see what happens.'" Hudson asked defendant to what he was referring; defendant continued to yell at him. Defendant then went to the police and falsely accused Hudson of punching defendant's truck. Hudson testified defendant's behavior "creeped [him] out."
Trudy Pulido, another individual living in the neighborhood, testified on behalf of defendant. She testified she and defendant started a neighborhood watch program in the neighborhood; it consisted solely of the two of them. Defendant was in charge; they did not have regular meetings or a newsletter. They set up patrols, in which they drove through the neighborhood and let their presence be known. They were encouraged by local law enforcement to video record incidents occurring while they were out on patrol.
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Defendant contends insufficient evidence supports the jury's inherent finding that defendant made credible, constitutionally unprotected threats to the victims, such that his conviction must be reversed. We disagree.
"The law we apply in assessing a claim of sufficiency of the evidence is well established: '"'"[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."'"' [Citation.] The standard is the same under the state and federal due process clauses. [Citation.] 'We presume "'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." [Citations.]' [Citation.]" (People v. Gonzales (2011) 52 Cal.4th 254, 294.)
The elements of stalking are (1) the willful, malicious, and repeated following or willful and malicious harassing of another person; (2) making a credible threat, including a pattern of conduct that implies a threat; and (3) intent to place the victim in reasonable fear for his safety. (§ 646.9; CALCRIM No. 1301; People v. Uecker (2009) 172 Cal.App.4th 583, 594-595; People v. Ewing (1999) 76 Cal.App.4th 199, 210.) "It is not necessary to prove that the defendant had the intent to actually carry out the threat." (§ 646.9, subd. (g); People v. McClelland (1996) 42 Cal.App.4th 144, 154, fn. 4; see also People v. Carron (1995) 37 Cal.App.4th 1230, 1240.) Conduct defined by "section 646.9 does not infringe on the free speech rights guaranteed by the Constitution." (People v. Borrelli (2000) 77 Cal.App.4th 703, 717; see also People v. Falck (1997) 52 Cal.App.4th 287, 295; People v. Halgren (1996) 52 Cal.App.4th 1223, 1231; In re M.S. (1995) 10 Cal.4th 698, 710 ["When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection."].)
Here, there was not only substantial evidence defendant engaged in a pattern of conduct that implied a threat, but substantial evidence he made explicit threats to each of the victims. Defendant's behavior of constantly following the Parkers, parking in their driveway, flipping them off, repeatedly driving unnecessarily through their cul-de-sac, and yelling and screaming profanities at them, were themselves sufficient indicia of an implied threat. Coupled with express threats such as telling Mary she would regret being "against" him, swerving his vehicle towards her car, dragging his finger across his throat to convey a death threat, and telling James to come to his house so they could settle the matter (i.e., fight), defendant's behavior clearly constituted credible threats against the victims. Indeed, due to defendant's behavior, Mary became a "wreck" who was scared, and afraid for both her own and her family's safety. James was likewise fearful for his family's safety. Both felt their autistic son had regressed due to defendant's behavior. Thus, sufficient evidence was adduced at trial that defendant posed a credible threat to the Parkers.
Likewise, sufficient evidence of both implicit and explicit threats supported the jury's determination that defendant posed a credible threat to the Robbinses. Defendant repeatedly "flipped off" the Robbinses, called Michael disparaging names, filmed them, drove by their home up to eight times a day, parked in front of their home, followed Valerie repeatedly while flashing his lights and honking, posted a sign stating that Michael was a loser, placed a dummy meant to look like Michael in front of his home, exposed his buttocks to them, blocked their egress out of a parking stall at a nearby video store, and threw a bottle (with a picture of Michael inside buried in gravel) into Michael's truck. When considered in context with defendant's explicit threats, such as repeatedly attempting to induce Michael to fight with him, breaking a broomstick over his knee and pointing it at Michael while dressed as a serial killer, threatening to beat Michael, threatening to "put [Michael] in the grave," displaying a sign reading "'kill,'" driving by their home with another sign reading "'I'll get you,'" making "shooting" motions with his fingers, driving his car within inches of colliding with Valerie, holding a bottle like he was ready to swing it at Michael while yelling at him, and threatening to "get" Michael, defendant's behavior was substantial enough to support his conviction.
Similar to the Parkers, defendant's behavior significantly affected the Robbinses. They stopped spending time on their front porch, felt uncomfortable in their own backyard, were scared and afraid of defendant, Michael feared defendant would one day shoot them, and their son was afraid to put their trash out at night. Therefore, substantial evidence supported the jury's finding that defendant posed a credible threat to the Robbinses. Nor was defendant's right to freedom of expression unconstitutionally curtailed in the context of his actions as a whole.
B. JURY INSTRUCTION
Defendant contends the trial court had a sua sponte duty to define constitutionally protected activity. He maintains its failure to do so requires reversal because the jury may have found defendant guilty based upon actions that were constitutionally protected. We disagree.
"A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. [Citations.] Even in the absence of a request, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence; that is, those principles that are closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) However, where "[d]efendant did not request the clarifying language he now contends was crucial [he] may not now 'complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete.' [Citations.] Defendant's failure to either object to the proposed instruction or request [additional] language be given to the jury forfeits his claim on appeal. [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 113.)
Here, the trial court gave defendant every chance to request just such an instruction, but defendant failed to make the request. Prior to discussing the instructions with counsel, the court stated that its "preference is for the two of you to meet and confer with regard to the instruction, and come up with an agreement as to what [CALCRIM No.] 1301 instructions to give." Later the court noted, "Counsel, we've had an opportunity to discuss off the record, and also had the opportunity to take a look at the proposed jury instructions collectively. So I'm going to go ahead and indicate for the record those instructions that would be given. And I would invite your comments with regard to any of the instructions. [¶] I would also further indicate that jury instruction [CALCRIM No.] 1301, which is the actual instruction that pertains to Counts 1 and Count 2, charged under the Information yet needs to be fully modified and changed. . . . [¶] I've indicated that we'll go ahead and go through all of the other jury instructions subject to reconvening tomorrow . . . prior to actually instructing the jury. And I would at that time present to both of you the completed [CALCRIM No.] 1301 instruction consistent with our discussion off the record."
The court eventually gave the following modified version of CALCRIM No. 1301: "The defendant is charged in Count 1 with stalking in violation of . . . section 646.9. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant willfully and maliciously harassed, or willfully and maliciously and repeatedly followed Mary Parker. [¶] And, two, the defendant made a credible threat with the intent to place Mary Parker in reasonable fear for her safety or for the safety of her immediate family. [¶] The defendant is charged in Count 2 with stalking in violation of . . . section 646.9. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant willfully and maliciously harassed or willfully, maliciously and repeatedly followed Mike Robbins and/or Valerie Robbins. Two, the defendant made a credible threat with the intent to place Mike Robbins and/or Valerie Robbins in reasonable fear for their safety, or for the safety of their immediate family. [¶] And, three, the defendant's conduct was not constitutionally protected. [¶] A credible threat is one that causes the target of the threat to reasonably fear for his or her safety or for the safety of his or her immediate family, and one that the maker of the threat appears to be able to carry out. [¶] A credible threat may be made orally, in writing or electronically, or may be implied by a matter of conduct or a combination of statements and conduct. [¶] Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments or terrorizes the person, and that serves no legitimate purpose. [¶] A course of conduct means two or more acts occurring over a period of time, however short, demonstrating a continuous purpose. [¶] Someone acts maliciously when he or she intentionally does a wrongful act, or when he or she acts with the unlawful intent to disturb, annoy or injure someone else. [¶] The alleged use of a sign that described Mike Robbins as a 'loser' is a constitutionally protected activity. [¶] 'Repeatedly' means more than once. [¶] The People do not have to prove that a person who makes a threat intends to actually carry it out. 'Immediate family' means a) any spouse, parents and children; b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or c) any person who regularly lives in the other person's household." (Italics added.)
Defendant never requested a definition of constitutionally protected activities; thus, he has forfeited any claim that the court erred by failing to provide one. Indeed, defendant argued to the jury that they had already "covered" the "only . . . area that constitutionally was not protected," the sign, "Mike's a loser." Thus, defendant would appear to have invited any error because he obtained the court's acquiescence to an instruction, which specifically excluded as a basis for conviction an act defendant committed, rather than merely suggesting broad examples of the type of constitutionally protected activities, e.g., speech, protest, and assembly, which the pattern jury instruction appears to contemplate. (People v. McKinnon (2011) 52 Cal.4th 610, 675 ["'When a defense attorney makes a "conscious, deliberate tactical choice" to [request or] forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was [given or] omitted in error.' [Citations.]"]; bench note to CALCRIM No. 1301 (Apr. 2011 ed.) pp. 1107-1108 ["If there is substantial evidence that any of the defendant's conduct was constitutionally protected, instruct on the type of constitutionally protected activity involved. (See the optional bracketed paragraph regarding constitutionally protected activity.) Examples of constitutionally protected activity include speech, protest, and assembly. [Citation.]" Italics added.].)
Moreover, defendant fails to provide an example of a definition of "constitutionally protected speech" with which he asserts the trial court should have instructed the jury. We note CALCRIM No. 1301, as it is, without any definition of "constitutionally protected speech," has been held to be correct in law. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1195-1197.) Furthermore, even if the court did err in failing to give the now requested instruction sua sponte, "It is . . . not reasonably probable that the jury would have reached a result more favorable to defendant if they had been instructed with the additional instruction defendant urges. [Citations.]" (People v. Friend (2009) 47 Cal.4th 1, 42-43, applying People v. Watson (1956) 46 Cal.2d 818 harmless error standard.) The trial court's instruction that the sign reading "'Mike is a loser,'" was constitutionally protected speech was not an all-inclusive list of constitutionally protected activities in which defendant was involved. Rather, it appears to be only one specific example of the many potential constitutionally protected activities defendant engaged in that, individually, would not support his conviction. However, as Civil Code section 1708.7, subdivision (b)(1), which is cited in the bench notes to CALCRIM No. 1301, notes: "Constitutionally protected activity is not included within the meaning of 'pattern of conduct.'" Thus, even constitutionally protected activities can, when conglomerated, constitute a "pattern of conduct" subjecting a defendant to a stalking conviction. Here, overwhelming evidence supported defendant's conviction such that no reasonable jury would have reached a result more favorable to defendant had it been instructed as chimerically requested by defendant.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant contends the trial court abused its discretion in declining to strike defendant's prior strike conviction. We hold the court acted within its discretion.
"[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.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. In the absence of such a showing, the trial court is presumed to have acted correctly. The appellate court may not substitute its judgment for that of the trial court when determining whether the trial court's decision to strike the prior was proper. (Id. at pp. 376-377.) "'[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to . . . section 1385[, subdivision] (a), 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 previously been convicted of one or more serious and/or violent felonies.' [Citation.]" (Id. at p. 377.) "'Where 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]." (Id. at p. 378.)
Defendant argued below that the trial court should strike his prior conviction because it involved a false imprisonment charge stemming from a custody dispute with his former girlfriend; she and defendant's daughter were the victims of the crime. Defendant noted he has Lupus, was unemployed, was steadily employed, and that the prior strike conviction occurred over 20 years earlier. The trial court noted that it had read defendant's pleadings as well as all the letters in support of defendant. On appeal, defendant echoes the arguments made below, but notes that the prior strike conviction was for assault with a knife. In denying defendant's motion below, the trial court reasoned: "I do not find the reasons compelling to dismiss the prior conviction and strike. The Court invested some discretion in regard to considering whether or not to strike the prior conviction. I recognize full well that occurred some 20 years ago. [¶] However, in my analysis of what occurred 20 years ago compared with the evidence that I heard in this particular case, I'm led to the following conclusions: I believe in both incidents there were relationships involved that soon turned into bad relationships involving either the use of force or the threat of use of force, and subjected individuals to some form of fear, anxiety, and some would even refer to it as being terrorized. Because of the closeness, not in time but in connection between particular types of acts, I would choose to not exercise discretion and strike the prior. [¶] I think in both instances what I'm left with insofar as my conclusion is that there was an inability to manage and control one's anger which led to terrifying individuals, both in [19]89 and also as the basis for the conviction in this particular case, and it's for those reasons that I would exercise my discretion and not, in fact, strike the strike[.]"
We acknowledge the contradiction here; however, defendant's motion concluded defendant "has been a steadily employed family man who has remained law abiding for many years," while also noting that, at least since 2006, defendant's wife had been the "sole source of income for the family." The probation officer's report lists defendant's employment as a "'stay at home dad.'"
--------
The record demonstrates that the trial court balanced the relevant factors and reached an impartial decision; therefore, the court acted within its discretion. The probation officer's report reflects that defendant garnered a felony conviction for assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)) and a misdemeanor conviction for hit and run (Veh. Code, § 20002) on November 15, 1988. On January 17, 1989, defendant incurred additional felony convictions for false imprisonment (Pen. Code, § 236), assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)), and the use of a deadly weapon in his commission of the other crimes. (Pen. Code, § 12022.) The assault for which defendant sustained the latter conviction formed the basis of his prior strike conviction. Although defendant's conviction was remote, and defendant now suffered from a serious disease, the record adequately reflects defendant had sufficient time and energy to terrorize his neighbors rather than put his vigor into more productive channels. The current convictions involved multiple acts that readily could have caused serious injuries to the victims (swerving his vehicle towards theirs) and unambiguous threats of injury and death. Defendant minimized his behavior and showed no remorse. Defendant cannot be said to be outside the spirit of the "Three Strikes" Law.
Finally, defendant's reliance on People v. Bishop (1997) 56 Cal.App.4th 1245, 1248 is misplaced. First, the Bishop court, in deferentially reviewing the trial court's act of striking two of the defendant's prior strike convictions, upheld that exercise of discretion. Here, we deferentially review the court's denial of defendant's motion to strike his prior strike conviction. As discussed above, the court considered the proper criteria in ruling on defendant's motions, and we may not substitute our own judgment. (Id. at pp. 1250-1251; People v. Carmony, supra, 33 Cal.4th at p. 377.) Second, Bishop predates People v. Williams (1998) 17 Cal.4th 148, and consequently did not apply the appropriate standard: whether the defendant should be deemed to fall outside the scheme's spirit. Instead, the Bishop court indicated the nature of the present crime and the remoteness of the defendant's prior violent offenses operated to mitigate his Three Strikes sentence. However, the Three Strikes law provides: "[t]he length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence." (§ 667, subd. (c)(3).) Thus, remoteness does not take a defendant outside the spirit of the very law that expressly rejects remoteness as a basis for avoiding it. Indeed, the Supreme Court in Williams found "not significant" the fact that 13 years passed between defendant's prior serious and/or violent felony convictions and the current felony conviction. (Williams, at p. 163.) The court in People v. Gaston (1999) 74 Cal.App.4th 310, also found the remoteness of prior strike convictions insignificant where the defendant had not led a legally blameless life in the interim. (Id. at p. 321 [recidivism a factor in reversal of dismissal of 17-year-old strike].) "[T]he overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career. [Citations.]" (People v. Strong (2001) 87 Cal.App.4th 328, 338.) Here, defendant committed criminal acts over the course of the preceding four years. The trial court acted within its discretion in declining to strike defendant's prior conviction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
____________
MILLER
J.
We concur:
____________
McKINSTER
Acting P. J.
____________
CODRINGTON
J.