Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05-582, 05-1644, 05-1662, 06-564
NICHOLSON, J.
Defendant Scott Allen Spaulding was sentenced to an aggregate prison term of eight years eight months, in connection with numerous criminal complaints filed against him. On appeal, he contends the trial court abused its discretion when it denied his motion to dismiss his prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.
BACKGROUND
On April 2, 2005, defendant punched John Blunt, Jr. in the face after Blunt pointed a .38 Special handgun at defendant. Defendant then ran to his mother’s house. Shortly thereafter, defendant saw Blunt in his mother’s backyard. Defendant retrieved his mother’s shotgun, went out to the backyard, pointed the shotgun at Blunt, and fired two shots into the air. Blunt jumped over the fence and left the scene in his car. Police were called to the area but left after defendant’s mother told the officers she did not know who fired the shots.
Defendant and his mother then got into an argument over the incident. Defendant’s mother called defendant’s brother, who was next door. Defendant and his brother got into a physical fight, after which defendant pointed the shotgun at his brother and threatened to kill him if he did not leave. Police came back out to the residence and defendant was arrested.
On May 17, 2005, an amended information was filed in case No. 05-582 charging defendant with making criminal threats with personal use of a firearm (Pen. Code, §§ 422, 12022.5, subd. (a) -- count 1), discharging a firearm in a grossly negligent manner (§ 246.3 -- count 2), unlawful possession of a firearm (§ 12021, subd. (c)(1) -- count 3), unlawful possession of ammunition (§ 12316, subd. (b)(1) -- count 4), grand theft of a firearm (§ 487, subd. (d)(2) -- count 5), exhibiting a firearm (§ 417, subd. (a)(2) -- count 6), and battery (§ 242 -- counts 7 and 8).
Further undesignated statutory references are to the Penal Code.
On July 6, 2005, defendant pled guilty in case No. 05-582 to discharging a firearm in a grossly negligent manner (§ 246.3 -- count 2), and unlawful possession of a firearm (§ 12021, subd. (c)(1) -- count 3), and the remaining charges were dismissed. Defendant also admitted to violating his probation in two earlier cases (case Nos. 04-1833 and 04-1081). Defendant entered into a Cruz waiver, was ordered to report to the probation department within 24 hours, and was ordered back in court for sentencing on August 3, 2005.
People v. Cruz (1988) 44 Cal.3d 1247; see also section 1192.5.
Defendant did not report to the probation office or appear in court on August 3, 2005. A warrant was issued for defendant’s arrest and case No. 05-1644 was filed, charging defendant with felony failure to appear (§ 1320, subd. (b)). The complaint also alleged that defendant had committed the offense while released on bail or his own recognizance (§ 12022.1, subd. (b)) and that defendant had sustained a prior strike conviction within the meaning of sections 667, subdivision (e), and 1170.12, subdivision (c).
On September 5, 2005, another criminal complaint was filed (case No. 05-1662), charging defendant with disobeying a domestic violence restraining order (§ 273.6, subd. (d)). The complaint also alleged that defendant had committed the offense while released on bail or his own recognizance (§ 12022.1, subd (b)) and that defendant had sustained a prior strike conviction within the meaning of sections 667, subdivision (e), and 1170.12, subdivision (c).
In October 2005, defendant pled not guilty in case Nos. 05-1644 and 05-1662, and the court ordered a psychological evaluation of defendant. The evaluation was performed by Dr. Kent Caruso in November 2005 and filed with the court on December 6, 2005.
On January 10, 2006, defendant changed his pleas and pled guilty in case No. 05-1644 to failure to appear and admitted the on-bail enhancement and strike allegation. He also pled guilty in case No. 05-1662 to disobeying a restraining order, as reduced to a misdemeanor. Defendant also admitted to having again violated his probation in case Nos. 04-1833 and 04-1081. Defendant entered into Cruz waivers and was ordered to appear for sentencing on February 7, 2006. Prior to accepting the plea, however, the trial court expressed concern regarding defendant’s prior failures to appear, and emphasized to defendant the terms of the Cruz waivers and the consequences for violating those terms.
Prior to the February 7, 2006, sentencing hearing, another complaint was filed (case No. 06-332) charging defendant with several misdemeanor offenses relating to his disruption of two businesses, indecent exposure (§ 314) and resisting peace officers (§ 148, subd. (a)(1)).
The record on appeal does not contain a copy of the criminal complaint in case No. 06-332.
Defendant did not appear at the February 7, 2006, sentencing hearing. Consequently, a warrant was issued for his arrest and a new complaint (case No. 06-564) was filed charging defendant with felony failure to appear (§ 1320, subd. (b)). The complaint also alleged that defendant had committed the offense while released on bail or his own recognizance in two cases (§ 12022.1, subd. (b)) and that defendant had sustained a prior strike conviction within the meaning of sections 667, subdivision (e), and 1170.12, subdivision (c).
On August 29, 2006, another criminal complaint was filed (case No. 06-1795) charging defendant with misdemeanor resisting arrest (§ 148, subd. (a)(1)).
Defendant appeared in custody on August 30, 2006. On September 29, 2006, after a hearing, the trial court found defendant in violation of his January 10, 2006, Cruz waivers.
On December 12, 2006, defendant pled guilty in case No. 06-564 to felony failure to appear (§ 1320, subd. (b)). All other remaining counts, allegations, and cases were dismissed.
On December 19, 2006, defendant filed an application requesting the trial court dismiss his prior strike pursuant to Romero. Defendant’s request was denied and the trial court sentenced defendant to an aggregate term of eight years, eight months, as follows: the upper term of three years, doubled to six years, for failing to appear (§ 1320, subd. (b) -- case No. 05-1644); a consecutive eight months (one-third the middle term) for discharging a firearm (§ 246.3 -- case No. 05-582); a concurrent eight months (one-third the middle term) for unlawful possession of a firearm (§ 12021, subd. (c)(1) -- case No. 05-582); a consecutive two years for the on-bail enhancement (§ 12022.1, subd. (b) -- case No. 05-1664); and a concurrent upper term of three years, doubled to six years, for failing to appear (§ 1320, subd. (b) -- case No. 06-564). Defendant’s probation status on his prior cases (case Nos. 04-1833 and 04-1081) was terminated as unsuccessful and he was sentenced to time served for his misdemeanor in case No. 05-1662.
DISCUSSION
Defendant contends the trial court abused its discretion in denying his Romero motion. He contends the trial court’s “principal failing was the court’s exclusive focus on the [defendant’s] criminal history without examining the circumstances of those offenses as well as [defendant’s] personal circumstances for the purpose of understanding the reasons for that criminal history.” We are not persuaded.
A trial court has discretion to strike a prior serious felony conviction only if the defendant falls outside the spirit of the “Three Strikes” law. (§ 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Romero, supra, 13 Cal.4th at pp. 529-532.) In deciding whether to do so, the court “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.” (Williams, supra, at p. 161.)
The trial court’s “failure to . . . strike a prior [felony] conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “[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].” (Id. at p. 378.) In reviewing for abuse of discretion, we are “guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts 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.” (Id. at pp. 376-377.)
Thus, only in “an extraordinary case -- where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ” -- would the failure to strike a prior felony conviction be an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
In support of his motion to strike the prior felony conviction, defendant requested the trial court consider the presentence probation report and the psychological evaluation prepared by Dr. Caruso in November 2005. The trial court specifically noted that it had reviewed and considered those reports.
The presentence probation report provided the following summary of defendant’s criminal history prior to the six cases (case Nos. 05-582, 05-1644, 05-1662, 06-332, 06-564, 06-1795) summarized above: a 1994 conviction for assault with a deadly weapon or by means likely to produce great bodily injury (§ 245, subd. (a)(1)), a 1997 conviction for threatening with a deadly weapon or using a deadly weapon in a fight (§ 417, subd. (a)(1)), a 2001 conviction for driving under the influence (Veh. Code, § 23152, subd. (b)), a 2001 conviction for driving with a suspended license (Veh. Code, § 14601.1), a 2002 conviction for driving with a suspended license (Veh. Code, § 14601.1), a 2004 conviction for driving with a license that was suspended due to driving under the influence (Veh. Code, § 14601.2), a 2004 conviction for driving under the influence (Veh. Code, § 23152, subd. (b)), a 2004 conviction for attempting to evade a peace officer while driving recklessly (Veh. Code, § 2800.2), a 2004 conviction for violation of a protective order (§ 273.6), a 2004 conviction for willfully resisting or obstructing a peace officer (§ 148, subd. (a)(1)), and a 2004 conviction for failing to appear (§ 853.7).
The trial court considered this criminal history, along with defendant’s current convictions for discharging a firearm in a grossly negligent manner, unlawful possession of a firearm, two instances of failing to appear, and violation of a restraining order, and reasonably concluded that defendant’s criminal history reflected an increasing threat of violence, a pattern of disrespect for the law, and an unwillingness to comply with rules. In reaching this conclusion, the trial court considered not only the large number of prior convictions, but also the fact that defendant’s history reflected a continuous course of criminal conduct with no significant gaps since 1994 and the nature of defendant’s offenses.
Defendant argues that he falls outside the spirit of the Three Strikes law because he is not a danger to society. Given defendant’s criminal history, we disagree. Defendant’s strike offense involved the use of a firearm. His criminal history includes at least one other instance, in addition to his strike offense, where he utilized a deadly weapon (threatening with a deadly weapon or use of such weapon in a fight) and an additional instance of assault, either with a deadly weapon or by force likely to produce great bodily injury. The nature of these offenses, along with his series of offenses that demonstrate a refusal to comply with the rules, do not suggest defendant falls outside the spirit of the Three Strikes law.
Defendant appears to rely on Williams, supra, 17 Cal.4th 148, as the benchmark for measuring when a prior should not be dismissed. He argues that, since he is significantly different from the defendant in Williams, his prior should have been dismissed. His analysis fails.
In Williams, unlike the instant case, the trial court dismissed the defendant’s prior strike, even though the defendant had a total of 17 prior convictions, including serious and violent crimes. (Williams, supra, 17 Cal.4th at pp. 154, 158, 163-164.) The People appealed and the appellate court reversed, finding the trial court had abused its discretion by dismissing the strike. (Id. at p. 157.) The California Supreme Court agreed that the order dismissing the strike fell outside the bounds of reason under the applicable law and relevant facts. (Id. at pp. 162-164.) Williams was a case wherein the trial court’s decision to dismiss a strike was found to be an abuse of discretion. It does not, however, set a benchmark to describe the only circumstances under which a prior conviction should not be dismissed. Accordingly, defendant’s comparison of himself with the defendant in Williams is unhelpful.
Defendant next argues that the trial court erred by overemphasizing his criminal history and did not give sufficient weight to his character and prospects. Defendant cites People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 and People v. Garcia (1999) 20 Cal.4th 490, where the Supreme Court held that a defendant’s criminal history is relevant, but not singularly dispositive. We disagree with defendant’s contentions. The trial court gave appropriate consideration to both the nature of defendant’s crimes and to his character and prospects.
Defendant acknowledges that he “did not perform on his grants of probation,” but argues that his criminal history, “while reflecting a disregard for criminal sanctions, must be viewed in the context of a gainfully employed citizen . . . .” Along these lines, he emphasizes that he has been employed in various jobs throughout his adult life. Yet, the mere fact that defendant is employed does not mean he is not a career criminal or necessarily places him outside the spirit of the Three Strikes law.
Defendant next claims the trial court did not appropriately assess the impact of Dr. Caruso’s findings as set forth in the psychological evaluation “in terms of explaining [defendant’s] criminal behavior.” We disagree. Dr Caruso’s evaluation noted that defendant exhibits a number of psychological deficits, including the fact that defendant is “quite psychologically uninsightful,” is “hypomanic” and grandiose, a “very emotionally rather than intellectually dominated problem solver,” shows a “propensity toward denial and/or exaggeration,” and views himself as highly intelligent although he functions in the borderline mental retardation range. The trial court expressly stated that it considered the evaluation and concluded that “[a]lthough it’s true that Dr. Caruso’s report contains some mitigating information, particularly concerning [defendant’s] immaturity and borderline intellectual capacity, in my view, this doesn’t come close to presenting reasons why the spirit of the three-strikes law does not apply to him.”
While defendant may disagree with the trial court’s conclusion, it was a discretionary judgment well within the bounds of reason. Moreover, the Supreme Court in People v. Carmony, supra, 33 Cal.4th 367, specifically warned that basing reversal of a trial court’s decision not to dismiss strikes on an analysis of a single factor improperly substitutes the appellate court’s judgment for the judgment of the trial court. (Id. at p. 379.)
In sum, the trial court gave appropriate consideration to whether defendant, in light of the nature and circumstances of his present and prior convictions, and the particulars of his background, character and prospects, is deemed outside the three strikes sentencing scheme. (See People v. Carmony, supra, 33 Cal.4th at p. 378.) We find no abuse of discretion in the trial court’s decision not to dismiss defendant’s prior felony conviction.
We do, however, note an error in the preparation of the abstract of judgment. Defendant was sentenced to a concurrent eight months (one-third the middle term) for unlawful possession of a firearm (§ 12021, subd. (c)(1) -- case No. 05-582) and a concurrent upper term of three years, doubled to six years, for failing to appear (§ 1320, subd. (b) -- case No. 06-564). Although the abstract of judgment notes the existence of these concurrent terms, it does not include the length of the terms imposed. The abstract of judgment must be corrected accordingly.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the concurrent terms imposed as set forth in this opinion and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P.J., DAVIS, J.