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People v. Sherman

Court of Appeals of California, Second Appellate District, Division Two.
Nov 19, 2003
No. B163260 (Cal. Ct. App. Nov. 19, 2003)

Opinion

B163260.

11-19-2003

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND SHERMAN, Defendant and Appellant.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.


A jury convicted appellant Raymond Sherman of five counts of second degree robbery in violation of Penal Code section 211 (counts 1 and 3-6). Appellant admitted four prior serious felony convictions within the meaning of sections 667, subdivisions (b) through (i), 1170.12, subdivisions (a) through (d), and 667, subdivision (a)(1).

All further references to statutes are to the Penal Code unless otherwise stated.

After denying appellants Romero motion, the trial court sentenced appellant to a total term of 145 years to life in state prison. In count 1, the court imposed 25 years to life as a third-strike offense and five years for each of the four admitted prior serious felony convictions, for a total of 45 years to life on that count. In each of the four remaining counts, the court imposed consecutive terms of 25 years to life as third-strike offenses.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)

On appeal appellant contends: (1) the trial court abused its discretion by denying appellants motion to strike his prior felony convictions, and (2) under section 667, subdivision (a)(1), one of the four 5-year terms imposed was improper and should be stricken.

FACTS

Because appellants arguments relate to only sentencing issues, a brief statement of facts is sufficient. Appellant was convicted of committing five separate bank robberies in 2002. We recite the facts in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

On January 19, 2002, appellant approached a teller, Roderick Berris, at a Washington Mutual Bank on Seventh Street in Los Angeles, handed him a note saying it was a holdup, and requested certain denominations of bills. The note said appellant had a gun. Appellant told the teller to hurry up because "you dont want to get messy . . . ." Berris handed over the money, and appellant left the bank. Berris identified appellant in a photographic lineup and in court.

On March 12, 2002, appellant approached a merchant teller, Inocencio Co, at a Union Bank of California office on South Main Street in Los Angeles. He handed the teller a note saying that appellant had a gun and specifying the denominations of bills appellant wanted. Appellant had his hand in his pocket. Co got up and spoke with his supervisor, Ray Valles. Valles went to the teller window, and appellant showed Valles the note. Valles told Co to give appellant the money. Co identified appellant at trial. A security guard who witnessed the robbery identified appellant in a photographic lineup and at trial.

On March 22, 2002, appellant approached a teller, Jorge Callejas, at a Cal Fed Bank on Wilshire Boulevard in Los Angeles. Appellant handed Callejas a note that said it was a robbery and that he had a gun. The note specified the denominations of loose bills that appellant wanted and told the teller to smile and have a good day. Appellant left the bank with the money. Callejas identified appellant from a photographic lineup and at trial.

On March 27, 2002, appellant approached a teller, Azucena Alcaraz, at a Washington Mutual bank on Seventh Street and handed her a note telling her it was a robbery and he had a gun. The note specified the denominations of bills requested and bore a "smiley face" and the words "Have a nice day." A teller nearby, Richard Bohm, realized there was a robbery in progress. When he attempted to leave the area, appellant ordered him to come back. Appellant put the money that Alcaraz handed him into his pockets and left the bank. Alcaraz and Bohm identified appellant from a photographic lineup and at trial.

On April 13, 2002, appellant approached a teller, Yestera Kachanyan, at a Bank of America branch on South Hill Street in Los Angeles. Appellant gave the teller a note saying it was a robbery and he had a gun. The note specified the bill denominations requested and bore a "happy face" and the words, "Have a nice day." Appellant told Kachanyan he would pretend to write a check and she should pretend to enter information into the computer. Appellant told Kachanyan he had AIDS and was going to die anyway. Appellant took the money that Kachanyan gave him and left. Kachanyan identified appellant at trial.

Appellant left the check he pretended to write at the Bank of America counter. The check, which bore a name very similar to appellants and appellants former address, led to appellants arrest on April 19, 2002, by federal law enforcement. A palm print taken from the counter at the same Bank of America matched appellants.

DISCUSSION

I. Trial Courts Denial of Romero Motion

Appellant argues that the trial court abused its discretion in denying his motion to strike his prior serious felony convictions. He contends the court based its ruling on appellants past criminal record rather than an individualized consideration of the relevant factors in his case. Appellant claims that the age of the prior convictions and the lack of violence in the current offenses tipped the balance of relevant factors in appellants favor. Appellant also notes that supporting his long-standing drug and alcohol addiction was the underlying purpose in the current crimes.

We review the trial courts ruling for abuse of discretion. (Romero , supra, 13 Cal.4th at p. 530.) The burden is on the party attacking the sentence to establish that the sentencing decision was irrational or arbitrary. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434; People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) "It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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 courts ruling, even if we might have ruled differently in the first instance." (People v. Myers, supra, 69 Cal.App.4th at p. 310; see also People v. Romero, supra, 99 Cal.App.4th at p. 1434.)

The Romero court stated that a courts power to dismiss a prior conviction is to be limited by the concept that the dismissal should be in the "`"furtherance of justice."" (Romero , supra, 13 Cal.4th at p. 530; see § 1385, subd. (a).) According to People v. Williams (1998) 17 Cal.4th 148 (Williams), in order to "render Penal Code section 1385(a)s concept of `furtherance of justice somewhat more determinate," justice should be sought within the "interstices" of the particular sentencing scheme, because the scheme itself suggests its spirit. (Williams, supra, at p. 160.) This search must be "informed by generally applicable sentencing principles" relating to matters such as the defendants "background, character, and prospects," which are intrinsic to the scheme. (Id. at pp. 160, 161.) The court cautioned that the standard for review of an exercise of discretion is "deferential," although not "empty," requiring the reviewing court to determine whether a ruling exceeds the bounds of reason under the law and relevant facts. (Id . at p. 162.)

We conclude the trial court did not abuse its discretion in refusing to strike one or more of appellants prior convictions. The record shows that the court made the required assessment of the particulars of appellants background, character, and prospects — with unfavorable results for appellant. (Williams, supra, 17 Cal.4th at p. 161.) These particulars were presented to the court in the probation report, appellants motion papers, defense counsels argument, and, according to the record, by appellants own words to the court in the form of a letter. Absent affirmative evidence to the contrary, the court is presumed to have considered all relevant factors. (Evid. Code, § 664; Cal. Rules of Court, rule 4.409; People v. Myers, supra, 69 Cal.App.4th at p. 310.)

The court stated it had read and considered appellants letter. That letter is not part of the record on appeal.

The trial court stated it had looked at appellants criminal record and his present conduct and could not overcome the fact that appellant had committed five separate bank robberies currently and had been convicted of four robberies previously. The court recognized that appellant had undergone "some hard times" in his life. But the court also recognized that the current offenses were classified as violent felonies and appellant was the sole participant in the crimes. The court acknowledged that appellants prior convictions were older and that the last was in 1986. The court noted, however, that the four priors were also robberies, and appellant had not led a crime-free life since his release from prison for the 1986 conviction. In 1996 appellant was returned to state prison for a parole violation. The court noted that appellant was approximately 40 years old and had spent most of the last 20 years in prison. The fact that appellant had committed five separate bank robberies within a period of four months did not augur well for a law-abiding future. For all of these reasons, the court found that appellant fell within the spirit of the three strikes sentencing scheme.

We agree with the trial court. When appellants current convictions are considered with his prior criminal conduct, which is not minimal, it is clear that it cannot be said that he falls outside the spirit of the three strikes law. The fact that the prior crimes were committed in the 1980s does not significantly assist appellant. Appellant was born in 1962, and his adult criminal record began in 1980. In 1982 he was sentenced to four years in prison for one robbery and five years in prison for another robbery. He was paroled in December 1984 and convicted of another robbery in August 1986, for which he was sentenced to 15 years. Appellant apparently served less than ten years, since the record shows he was arrested in January 1996 for a narcotics offense and released due to insufficient evidence. He was returned to prison, however, in July 1996 for a parole violation. He was arrested again in 2000, but there was no disposition indicated in the record. Appellant was arrested for the instant offenses in April 2002. Although it appears appellant did not have a gun during the bank robberies, he nevertheless created a dangerous situation in which innocent people could have been harmed. Considering that appellant has spent a substantial portion of his life in custody and was still on parole, he has clearly demonstrated an inability to become a law-abiding member of society.

We cannot say that the courts assessment of appellants background, character, and prospects was arbitrary or capricious. The court clearly believed appellant was a danger to society. In People v. Garcia (1999) 20 Cal.4th 490, the California Supreme Court reiterated that, when deciding whether to strike prior convictions under section 1385, the trial court must consider not only the constitutional rights of the defendant, but also the "`"`interests of society represented by the People. . . ."" (People v. Garcia , supra, at pp. 497-498, citing Romero, supra, 13 Cal.4th at p. 530.)

Nothing in the record before us suggests that appellant fell outside the spirit of three strikes scheme. The trial court did not abuse its discretion.

II. Imposition of Four Enhancements Under Section 667, Subdivision (a)(1)

Appellant contends that his four prior convictions for serious felonies arose out of only three separate cases. Therefore, he argues, the trial courts imposition of a fourth 5-year term under section 667, subdivision (a)(1) was error and the term should be stricken from the judgment.

Section 667, subdivision (a)(1) states in pertinent part that ". . . any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." In order to satisfy the condition that the prior convictions must have been brought and tried separately, the proceedings must have been distinct from filing to adjudication of guilt. (People v. Wiley (1995) 9 Cal.4th 580, 585; In re Harris (1989) 49 Cal.3d 131, 136.)

The record here shows that two of appellants prior robbery convictions were from the same case number; i.e., case No. A453889. Therefore, one 5-year term pursuant to section 667, subdivision (a)(1) was improperly imposed and we will order one of the 5-year prior serious felony conviction enhancements stricken.

DISPOSITION

The second 5-year enhancement pursuant to section 667, subdivision (a)(1) stemming from case No. A453889 is stricken, and appellants sentence is reduced accordingly to 40 years to life on count 1. The superior court is directed to correct the abstract of judgment in appellants case and forward the corrected version to the Department of Corrections. In all other respects, the judgment is affirmed.

We concur: P.J. BOREN, J. NOTT.


Summaries of

People v. Sherman

Court of Appeals of California, Second Appellate District, Division Two.
Nov 19, 2003
No. B163260 (Cal. Ct. App. Nov. 19, 2003)
Case details for

People v. Sherman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAYMOND SHERMAN, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Two.

Date published: Nov 19, 2003

Citations

No. B163260 (Cal. Ct. App. Nov. 19, 2003)