Opinion
F075106
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. TIENGKHAM NOY SINGANONH, Defendant and Appellant.
Carolyn D. Phillips, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16902969)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Carolyn D. Phillips, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Defendant Tiengkham Noy Singanonh was convicted by jury trial of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). He admitted having suffered a prior felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court denied defendant's Romero motion to dismiss or strike the prior felony conviction allegation under section 1385, and the court sentenced him to six years in prison: the upper term of three years, doubled pursuant to the Three Strikes law. On appeal, defendant contends the trial court abused its discretion when it denied his motion to strike the prior felony conviction allegation. We affirm.
All statutory references are to the Penal Code unless otherwise noted.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). A defendant's request for this type of leniency is commonly referred to as a "Romero motion," although defendants do not actually have a right to make motions under section 1385, subdivision (a). (People v. Carmony (2004) 33 Cal.4th 367, 375, 379 (Carmony).)
FACTS
On May 11, 2016, Detective Rick Harrell, who was assigned to the vehicle theft team, was on patrol in an unmarked vehicle. He saw defendant driving a 1996 Honda that was a commonly stolen model. Harrell confirmed that the car was listed as stolen.
Harrell followed defendant to an apartment complex where defendant got out, spoke to a man, then returned to the car and parked it in a nearby stall. Harrell and other officers then approached and contacted defendant. Harrell observed that the Honda's steering column and ignition were severely damaged and its stereo was missing. This type of damage was consistent with vehicle theft. When the ignition was removed, a stolen car could be started with a screwdriver or even a popsicle stick.
Harrell gave defendant a Miranda warning and then questioned him about the car. Defendant initially stated the car was his and he had recently bought it for $500- $600, although he said he did not know where he got it. He said the bill of sale was in his backpack. Harrell, however, could not locate it in the backpack. Confronted, defendant admitted he knew the car was stolen, but claimed he did not steal it.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
The undamaged, locked car had been stolen from the owner's apartment parking lot during the night of May 6, 2016, and the owner did not know defendant or give him permission to drive his car. When he received his recovered car, he could not start it with his key because the ignition had been removed.
DISCUSSION
Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) " 'A court's discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with ... section 1385[, subdivision] (a).' " (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 ["a primary purpose of the Three Strikes law was to restrict judicial discretion"].) The Three Strikes law establishes " 'a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,' " unless the sentencing court finds a reason for making an exception to this rule. (Carmony, supra, 33 Cal.4th at p. 377.) There are "stringent standards that sentencing courts must follow in order to find such an exception." (Ibid.) In order to dismiss a prior strike conviction, "the court in question must consider whether, in light of the nature and circumstances of [the defendant's] 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." (People v. Williams, supra, at p. 161.)
The defendant bears the burden of clearly showing the trial court's decision not to strike a prior felony conviction allegation was arbitrary or irrational. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, 33 Cal.4th at pp. 376-377.) "[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.] [¶] But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] ... Because the circumstances must be 'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors ... manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Id. at p. 378.)
In this case, defendant's prior juvenile dispositions, which began when defendant was 12 years old, included the following: in 1993, burglary of an inhabited building (§§ 459, 460) and vehicle theft (Veh. Code, § 10851); in 1995, vehicle theft (Veh. Code, § 10851); in 1997, corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)). Defendant's prior adult convictions included the following: in 2002, misdemeanor disorderly conduct and resisting arrest; in 2005, possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); in 2005, federal bank robbery (18 U.S.C. § 2113). Defendant violated his supervised federal release multiple times until it was revoked for the last time on June 25, 2012, to be followed by 12 months in prison. The federal bank robbery conviction formed the basis of the prior strike conviction allegation admitted by defendant.
The probation officer concluded that "[b]ased on the defendant's past criminal record and his continued involvement in criminal activity, he is not a suitable candidate for a grant of probation. No mitigating factors were located in this matter." The probation officer recommended the upper term of three years, doubled pursuant to the Three Strikes law.
Defendant's Romero motion argued that (1) a Three Strikes sentence would be unjust compared to even the maximum term for receiving stolen property; (2) the current offense was relatively minor in that it was not violent and did not involve weapons, and no evidence established that defendant was responsible for the damage done to the vehicle; (3) the nature and circumstances of the prior conviction were mitigating because defendant took responsibility for the crime at an early stage by pleading no contest (Cal. Rules of Court, rule 4.423(b)(3)); (4) the prior conviction was remote in that it occurred 10 years prior to the current offense, and although defendant had parole violations, his only prior convictions were for possession of a controlled substance and bank robbery; (5) the nature and circumstances of the current offense were mitigating because defendant took responsibility for the crime at an early stage by acknowledging he knew the vehicle was stolen in his statement to law enforcement (rule 4.423(b)(3)) and, if not for the strike, defendant would be eligible for probation (rule 4.432(b)(4)).
All references to rules are to the California Rules of Court. --------
Defendant made the following statement:
"That's my side job. I told the officer I didn't steal the car. I didn't know the car was stolen. I cooperated. But when he started questioning me and saying that you drive the car, and I said, I just came to work on the car, and the report when they first came in, he said that they saw me exit the passenger of the car .... They're saying that they saw me drive the car, and I never drove the car, and Detective Harrell said that he never followed me for the half mile that he said he followed me. And the owner of the car himself said the car was not drivable, it would not even start.
"I was doing mechanic work, the starter, the sparkplugs, and the distributor cap and the AC air unit. That's what I was doing. When they pointed the gun at me, I didn't even know what was going on, that's why I was, what the heck. And I had two more guys come with the guns pointed at me. That when I was, like, oh, what's going on.
"But I didn't steal no car. I'm a self-taught paralegal. I've changed my life. I never caught any new crime. I've been helping my community. It was just this one mistake that I've—and you guys heard Mr. Harrell. He was at another block looking for the one I was working for, the subject in the street, and then he said that he had the canine in another area. That's when, I guess, the owner of the car, I was looking at him when they pulled up, when they took off.
"I didn't steal no car. I wasn't even driving it. I was working when they approached me. I didn't run. I said I didn't know the car was stolen. That's when I—I didn't want to speak to him. Well, he's saying I stole the car. I go, I don't know what's going on. [¶] That's all I have, Your Honor."
The trial court stated it had considered the probation report and defendant's motion, and it denied the motion to strike the prior conviction allegation without further discussion.
In our opinion, this is not an extraordinary case in which all reasonable people would agree that defendant falls outside the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 378.) On the record in this case, we cannot call the trial court's denial of the Romero motion an abuse of discretion. Defendant's prior convictions were not so remote to suggest he had otherwise led a crime-free life. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 ["remote" carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect on the error of his ways].) Indeed, defendant repeatedly violated his supervised federal release following his most recent conviction and was ultimately returned to federal prison with no further release allowed. Assuming defendant was released from federal prison in June 2013, as planned, defendant's potentially crime-free period was three years at the most. As for the lack of violence in the current offense, it has been held that a criminal career need not have consisted entirely of violent or serious felonies to bring the defendant within the spirit of the Three Strikes law. (See People v. Strong (2001) 87 Cal.App.4th 328, 340.) Defendant's criminal career began at 12 years of age and had escalated to federal bank robbery. His record does not suggest he had reformed his life, as he contended. We also note that at sentencing, he retracted any responsibility he had earlier taken for the crime, now claiming that he did not even know the car was stolen. In sum, defendant has not shown that the trial court's decision not to strike a prior felony conviction allegation was arbitrary or irrational. We see no abuse of discretion.
DISPOSITION
The judgment is affirmed.