Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Affirmed. Los Angeles County Super. Ct. No. YA066846
Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ASHMANN-GERST, J.
Jack M. Stinson (defendant) appeals from the judgment entered following a jury trial in which he was convicted of a petty theft with a prior conviction (Pen. Code, § 666; count 1), and two counts of second degree commercial burglary (§ 459; counts 2 & 3), with a trial court finding that he had a prior conviction of a serious felony that required sentencing pursuant to the three strikes law (§§ 667, subds. (b)-(i); 1170.12).
All further statutory references are to the Penal Code unless otherwise indicated.
He raises four sentencing contentions, as follows: (1) the trial court committed Cunningham error (Cunningham v. California (2007) 549 U.S. ___ 127 S.Ct. 856] (Cunningham)); (2) applying the provisions in Senate Bill No. 40 to him at sentencing constituted the application of an ex post facto law; (3) apart from any constitutional error, the trial court abused its discretion when it imposed an upper term for count 1; and (4) the trial court abused its discretion when it failed sua sponte to strike his prior serious felons conviction as authorized by the decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We affirm the judgment.
FACTS
During trial and sentencing, defendant proceeded in propria persona.
I. THE TRIAL EVIDENCE
Late in the morning on November 29, 2006, defendant entered the Manhattan Beach Target Store. In the electronics aisle, defendant used a pocket knife to pry a packaged Verizon cellular telephone loose from its display. He secreted the cellular telephone in his waistband and left the store. Michael Cove (Cove), a Target security agent, observed defendant commit the theft.
Over two hours later, a Hawthorne Costco employee found defendant lying in their parking lot, perhaps asleep or under the influence of an intoxicating substance, holding onto a shopping cart. Inside the shopping cart were two plumbing items, a Xenon flashlight, and a bicycle lamp, all contained within various stores’ packaging. On his person, with its charger, defendant had a brand new Verizon cellular telephone. Defendant was arrested, but released after several days because the Hawthorne police officers could not connect him to a Hawthorne theft.
On the afternoon of November 29, 2006, Manhattan Beach Detective Michael Trani was assigned the investigation of the Target Store theft. He looked at the photograph of the thief produced by the store’s security system. Trani recognized defendant as the thief and knew that defendant was a local transient. Trani recalled that not a half hour before the theft, Trani and other police officers had contacted defendant in front of the Manhattan Beach Marriott Hotel.
In the few days after the theft, Detective Trani could not locate defendant. Eventually, the detective discovered that defendant was in jail. The Hawthorne Police Department gave Trani the Verizon cellular telephone that was found in defendant’s possession upon his arrest.
On December 7, 2006, defendant reentered the Target store, and Cove saw him steal a T-Mobile cellular telephone. Cove followed defendant around the store. Defendant apparently saw Cove following him, and defendant left the store. A Target employee telephoned the Manhattan Beach Police Department to report the theft, and a couple of blocks away, the police detained him. Cove identified defendant as the thief.
The detaining officers found no T-Mobile cellular telephone on defendant’s person. Cove recalled that before leaving the store, defendant had left his sight momentarily in the store’s garden area. Cove had another employee examine that area, and she found the stolen T-Mobile cellular telephone intact in its packaging at the location described.
Cove identified the Verizon telephone in Detective Trani’s possession as the same model telephone that had been stolen from Target on November 29, 2006.
During trial, the jury was shown the Target’s videotapes of the thefts.
In defense, defendant declined to testify and presented no evidence.
II. THE SENTENCING PROCEEDINGS
Prior to sentencing, the prosecutor produced official documents proving that defendant had pled guilty to an Arkansas residential burglary on October 30, 1997. The trial court made a finding that the Arkansas offense was a California felony and found the allegations concerning a prior serious felony to be true.
At sentencing, the trial court read and considered a probation report setting out defendant’s criminal history. In 1976, defendant was convicted of the misdemeanor offense of being drunk in public. In 1978, he was convicted of the sale or transportation of marijuana and was granted probation, which was terminated in 2003 with an order that he serve a one-year jail term. In 1980, defendant was convicted of misdemeanor carrying a concealed weapon and granted probation. In 1984, in Arizona, he was convicted of driving while intoxicated. In 1992, he was convicted of a 1992 Arkansas burglary. In 1995, he was convicted of a 1994 offense of possessing stolen money orders and sentenced to 11 months with three years of supervised release. (The terminology used to describe this offense suggests that this offense was a federal offense.) In June 1995, defendant was received in federal prison and paroled the following December 1995. Thereafter, defendant’s parole was violated three times, and he served terms in state prison beginning in January 1997, July 1997, and October 1998. In 1997, he was convicted of the previously mentioned Arkansas residential burglary and sentenced to state prison.
In 2004, in California, he was convicted of misdemeanor possession of an open container of alcohol. In January 2006 and February 2006, he was convicted of misdemeanor trespassing offenses and granted probation. In May 2006, he was convicted of the violation of a city ordinance prohibiting unlawful camping and granted probation. In August 2006, he was convicted of possessing a restricted substance (Health & Saf. Code, § 11377) and granted probation. After this latter conviction, he was required to serve an additional 30 days in jail on one of the above summary probation matters, but he was retained on probation. In December 2006, he was arrested for the current offenses.
In his report, the probation officer indicated that defendant was a known transient who abused methamphetamine and alcohol. The probation officer said that defendant had a lengthy multi-state record, which spanned 30 years, and defendant had received numerous grants of monitored supervision. Nevertheless, defendant had continued his criminal lifestyle, preying on local businesses for his livelihood. Listed in aggravation were the following factors: (1) the crimes indicate planning, sophistication, and professionalism, (2) his prior convictions as an adult are numerous or of increasing seriousness, (3) he had served a prior prison term, (4) he was on probation or parole when the crime was committed, and (5) his prior performance on probation or parole was unsatisfactory. The probation officer cited one factor in mitigation: defendant suffered from drug and/or alcohol addiction that significantly reduced his culpability for the crime. The probation officer also indicated that Target had suffered only a minimal loss from the theft. The probation officer recommended the imposition of an upper term in state prison.
At the sentencing hearing, the trial court listened to the parties’ arguments as to a prospective sentence.
The prosecutor detailed defendant’s criminal history and pointed out that defendant had been almost continuously on probation or parole when arrested for new offenses, and for that reason, defendant had performed poorly during supervision. The prosecutor asserted that a maximum term should be imposed: an upper term on count 1, doubled pursuant to the three strikes law, making the principal term six years. The prosecutor urged that consecutive to the principal term, the trial court should impose a doubled, subordinate term of one year four months, making the total term of imprisonment seven years four months. The prosecutor suggested that pursuant to section 654, the trial court should stay the term imposed for count 3.
The trial court asked defendant whether he wished to comment, and defendant replied that he believed the trial court would “make an appropriate sentence.” The trial court urged defendant to comment, and defendant said the following: “It speaks for itself. I’ve been in California for four years and I picked up four misdemeanors because I’ve been homeless. I really haven’t been in no serious trouble since 2000. [Sic] And I feel that that needs to be taken into consideration. And I realize I made a big mistake. That’s it.”
The trial court said that pursuant to Senate Bill No. 40, it was empowered to exercise its full discretion to select an appropriate term of punishment. Addressing defendant, the trial court said: “You’ve shown . . . that you . . . commit a lot of crimes. And you say, well, it happened because you’re homeless. There are homeless people that don’t need to commit crimes. And in this case you went into the Target Store twice and it was painfully obvious that you went in there for the purpose of stealing a cell[ular] phone each time.” The trial court pointed out that it took the jury only 15 minutes to return its guilty verdict.
It commented that in 1980 defendant was convicted of carrying a concealed weapon. Defendant protested that he had suffered no such conviction. The trial court said that defendant had any number of prior theft-related convictions apart from his prior serious felony conviction, the Arkansas residential burglary, and that defendant was on probation in five matters when he committed the current offense. It characterized defendant as a habitual thief. It said that it had attempted to find something mitigating in the probation report so as to avoid the imposition of an upper term. However, it was unable to find any mitigation in the record. The trial court said that defendant was a “career criminal,” and that it had no hope for his rehabilitation.
The trial court then imposed the term suggested by the prosecutor, which was a doubled upper term of three years, or six years, for count 1, and also imposed a doubled subordinate term of one year four months.
The trial court calculated presentence credits and inquired whether defendant had a substance abuse problem with drugs or alcohol. Defendant replied, “No, not no more.” The trial court told defendant that the trial court would recommend housing in Donovan State prison if defendant wanted treatment. The trial court told defendant that he should not let his pride interfere with an opportunity to obtain substance abuse treatment. Defendant replied, “I want to go to work in fire training, if possible” and that he wanted to “work and earn some money.” The trial court told defendant that it would recommend fire camp.
The trial court observed that defendant was age 48, and it told him that it was time for him to change his lifestyle. It terminated probation in the four unrelated pending probation matters. It asked whether defendant wanted a “forthwith” commitment. Defendant said, “Yes, please,” and the trial court said, “Good luck to you.”
The prosecutor made several comments regarding the case for the record. Then defendant asked, “What’s my total sentence?” The trial court replied, “Seven years, four months” and indicated that defendant’s presentence credit was 186 days.
Defendant inquired whether he would earn credit at “50 percent or 80?” The trial court replied that because defendant was sentenced pursuant to the three strikes law, he could earn credit at only 20 percent. Defendant said aloud, “Seven years.” The trial court explained: “Well, 80 percent of seven years, four months minus the 186 days. So 80 percent of six years and 10 months” after the presentence credit was deduced from the term. It said, “All right, Mr. Stinson, go ahead and go with Deputy Tsubaki.”
DISCUSSION
I. INTRODUCTION
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme court held that a defendant has a constitutional right to have the jury, not the trial judge, decide all facts that increase the penalty for a crime beyond the prescribed statutory maximum. (See also Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely); Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 860].)
In Cunningham, the high court overruled, in part, the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that the provisions of California’s determinate sentencing law (DSL), authorizing the trial court to find the facts permitting an upper term sentence, did not violate a defendant’s right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 860.) The United States Supreme Court concluded that because California’s DSL “authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871, fn. omitted.) The court held that the middle term in California’s DSL was the relevant statutory maximum for the purpose of applying Blakely, supra, 542 U.S. 296 and Apprendi, supra, 530 U.S. 466. (Cunningham, supra, at p. 868.)
The court in Cunningham reaffirmed the exception enunciated in Almendarez-Torres v. United States (1998) 523 U.S. 224 and affirmed in Apprendi: “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, supra, 127 S.Ct. at p. 860, see also Apprendi, supra, 530 U.S. at pp. 488, 490.) The court explained that California’s DSL violates Apprendi’s bright-line rule: “Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, at p. 868.)
In response to Cunningham, the California Legislature passed Senate Bill No. 40, which went into effect as urgency legislation on March 30, 2007. (Stats. 2007, ch. 3, § 3, (Sen. Bill No. 40).) Senate Bill No. 40 amended section 1170 so as to eliminate the presumptive middle term of imprisonment. In lieu thereof, section 1170 now provides that the choice of an appropriate term within the triad of determinate terms in the DSL rests within the sound discretion of the trial court. Senate Bill No. 40 also amended section 1170.3 to require that the Judicial Council to adopt new court rules in conformity with the changes Senate Bill No. 40 had made to section 1170. The Judicial Council did so, on May 23, 2007, putting into effect amendments to the court rules that conformed to the amendments in Senate Bill No. 40. (See, e.g., Cal. Rules of Court, rule 4.420 [concerning the selection of the term of imprisonment]; People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval) [setting out in more detail how Senate Bill No. 40 changed the existing provisions of the DSL law].)
Sections 1170 and 1170.3 of the DSL were further amended by Assembly Bill No. 1539, effective January 1, 2008, and operative January 1, 2009. (Stats. 2007, ch. 740, § 2, (Assem. Bill No. 1539).) For our purposes, the Assembly Bill did not effect any change in the DSL beyond those made in Senate Bill No. 40. Critically, the Legislature amended subdivision (b) of section 1170 to provide, as follows: “(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of an appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.”
On April 9, 2007, the trial court sentenced defendant. Defendant had committed the theft and burglaries in 2006.
Subsequent to defendant’s sentencing, on July 19, 2007, the California Supreme Court filed its decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and Sandoval, supra, 41 Cal.4th 825. In Black II, the court recognized that under the DSL the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (See § 1170, subd. (b); Black II, supra, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.) It held that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, supra, at p. 812.) Also, “any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options did not violate the defendant’s right to jury trial.” (Ibid.) The “imposition of the upper term does not infringe upon the a defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at pp. 815-816.)
In Sandoval, the court addressed the remedy to be employed on remand after a finding of Cunningham error. The Sandoval court explained that in briefing in that case, the Attorney General suggested reforming the statute by eliminating any presumption that the middle term was the appropriate term of imprisonment and giving the trial court full discretion to select one of the triad of terms set out in the DSL. The Sandoval court considered the Attorney General’s proposal. It observed that the Legislature had already responded to Cunningham by amending section 1170 in just that fashion. Consequently, as a remedy for the constitutional error, the court adopted the Attorney General’s proposal as the most practical and best-authorized procedure for judicial reformation. (Sandoval, supra, 41 Cal.4th at pp. 848-852.)
The Sandoval court rejected the defense proposal that the proper remedy was a remand for resentencing, with the additional requirement that where the prosecutor proposed the imposition of an upper term, the defendant would be afforded a jury trial on aggravating factors. The Sandoval court concluded that it was unnecessary to fashion judicial reformation that was any different than that already enacted by the Legislature. It ordered resentencing on remand after a finding of Cunningham error consistent with the newly-enacted Senate Bill No. 40. (Sandoval, supra, 41 Cal.4th at pp. 845-846.)
In reaching its decision on judicial reformation, the Sandoval court commented on prospectivity without deciding that issue. It observed that it was unclear whether the Legislature intended the amendments in Senate Bill No. 40 to apply on remand to resentencing after a reviewing court found Cunningham error. But it commented that Senate Bill No. 40 was probably intended to be prospective because the changes effected therein appear to be procedural in nature and thus would apply to all sentencing proceedings subsequent to its effective date. (Sandoval, supra, 41 Cal.4th at pp. 845, 849-850; see generally, Elsner v. Uveges (2004) 34 Cal.4th 915, 936-937; Tapia v. Superior Court (1991) 53 Cal.3d 282, 287-289.)
The Sandoval court also commented on the ex post facto effect of the new sentencing procedures set out in Senate Bill No. 40. It explained that a retroactive law—one applying to events occurring before its enactment—does not violate the ex post facto clause if it “‘does not alter “substantial personal rights,” but merely changes “modes of procedure which do not affect matters of substance.”’ [Citation.]” (Sandoval, supra, 41 Cal.4th at p. 853.)
It concluded that “the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstances is not intended to—and would not be expected to—have the effect of increasing the sentence for any particular crime.” (Sandoval, supra, 41 Cal.4th at p. 855.) It pointed out that judicial reformation is not subject to the ex post facto limitations in the federal and California Constitutions and that prior authorities on the subject establish that judicial reformation is subject only the requirements of “‘core due process concepts of notice, foreseeability, and . . . the right to fair warning.’ [Citation.]” (Ibid.) The Sandoval court held that for due process purposes, there was no constitutional prohibition in fashioning its remedy for judicial reformation: the particular statutes setting out the relevant punishment in the DSL and stating the upper term gave defendants sufficient notice of the potential punishment. (Id. at p. 857.)
II. THE CLAIM OF CUNNINGHAM ERROR
Defendant contends that the procedures used to sentence him violated the Sixth Amendment as established by the United States Supreme Court’s decision in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].
We are not persuaded.
There is no Cunningham error here because the trial court applied Senate Bill No. 40 at sentencing. The Sandoval court observed the following. “[T]he United States Supreme Court repeatedly has made clear that . . . it ‘ha[s] never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. [Citations.] . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.’ (United States v. Booker (2005) 543 U.S. 220, 233 . . .; see Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 871 [noting that California has the option of complying with Sixth Amendment requirements by allowing sentencing courts ‘“to exercise broad discretion . . . within a statutory range].”’” (Sandoval, supra, 41 Cal.4th at p. 844.) In Senate Bill No. 40, the Legislature mandated sentencing that complied with the requirements of the Sixth Amendment and Cunningham. It established a sentencing scheme in which the trial court exercises its discretion within a defined range of statutory terms.
On federal constitutional issues, we are bound by the decisions of the United States and California Supreme Courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As Apprendi, Cunningham, and Sandoval have generally approved in dicta the type of sentencing scheme the Legislature adopted in Senate Bill No. 40, we hold that sentencing defendant pursuant to the new law complied with the requirements of the Sixth Amendment.
III. EX POST FACTO LAW
Defendant contends that the trial court’s application of the new provisions in Senate Bill No. 40 at sentencing “violat[es] the ex post facto rule.”
We disagree.
In making this contention, defendant cites the test for an ex post facto law from Collins v. Youngblood (1990) 497 U.S. 37, 41-42, and Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390. On the basis of the Collins-Calder test, he makes the following argument: “the trial court believed it could impose the upper term in this case pursuant to SB 40. However, the trial court completely overlooked the fact that the offense was committed in 2006. As such, the [trial] court’s use of SB 40 to impose an upper term was in violation of the ex post facto rule.”
The ex post facto clauses of the federal and state Constitutions are interpreted identically and prohibit legislation that makes the punishment for a crime more burdensome after its commission. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9; People v. McVickers (1992) 4 Cal.4th 81, 84, citing Collins v. Youngblood, supra, 497 U.S. 37, 42; Tapia v. Superior Court, supra, 53 Cal.3d at p. 295.) “Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Collins v. Youngblood, supra, at p. 43, italics omitted.)
The decision in Sandoval addressed only the judicial reformation of section 1170 following a finding of Cunningham error on review. That decision did not specifically address whether Senate Bill No. 40 was an ex post facto law when it was applied to offenses committed prior to its effective date. Nevertheless, the Sandoval court commented on whether its reformation procedure, which is identical to the provisions in Senate Bill No. 40, violated ex post facto principles. (Sandoval, supra, 41 Cal.4th at p. 853.) It concluded that the changes made by its reformation and Senate Bill No. 40 “‘create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment . . . and such conjectural effects are insufficient’” to establish there is an ex post facto effect to applying this new law. (Sandoval, supra, 41 Cal.4th at pp. 854-855.)
Insofar as the decision in Sandoval applies here, it is dicta. However, “[a]lthough dicta of the California Supreme Court does not control our decisions, it ‘carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic. [Citations.]’ [Citation.]” (People v. Smith (2002) 95 Cal.App.4th 283, 300.)
We examined defendant’s claim in light of the United States Supreme Court’s decisions, as well as the decision in Sandoval and the general ex post facto principles recently summarized in People v. Delgado (2006) 140 Cal.App.4th 1157, 1163-1171. As did the Sandoval court, we conclude that the sentencing scheme enacted in Senate Bill No. 40 creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment. (California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 509.) Also, it is a defendant’s burden to demonstrate the ex post facto effect of a new law. Mere speculation is insufficient to support such a claim. (Id. at pp. 509-514 & fn. 6; People v. Delgado, supra, 140 Cal.App.4th at p. 1166.) Defendant’s argument in this case was conclusional, and he has presented no reasons that lead us to the conclusion that sentencing him in conformity with the provisions of Senate Bill No. 40 risked increased punishment.
IV. ARBITRARY SENTENCING
Defendant contends that apart from his constitutional claims, the trial court’s choice of the upper term was “arbitrary or irrational.”
We disagree.
Defendant claims that the trial court’s use of the upper term for count 1 lacks support in the record because the offense was not serious, no one was hurt, the value of the property was relatively insignificant, and the cellular telephones were recovered after the thefts. He asserts that the trial court’s comment there was no mitigation was erroneous because the probation report stated that defendant suffered from drug and alcohol addiction, a condition that significantly reduced his culpability for the crime.
The People assert that defendant’s sentencing claim is waived as defendant raised no objection in the trial court on the grounds asserted on appeal. In his reply brief, defendant responds that objecting after the sentence was imposed would have been futile and that he requested that the trial court consider his homelessness and that he was not involved in any serious trouble after the year 2000.
We agree that the record shows a forfeiture. As a general rule, neither party may initiate on appeal a claim that the trial court failed to make or articulate a “‘discretionary sentencing choice[].’” (People v. Gonzalez (2003) 31 Cal.4th 745, 751, 752 (Gonzalez); see People v. Scott (1994) 9 Cal.4th 331, 351-354 (Scott) [when the trial court fails to make or properly articulate a discretionary sentencing choice, the defendant must object in order to preserve the claim on appeal].) However, the record must disclose that there was a meaningful opportunity to object. (Gonzalez, supra, at p. 751.) A meaningful opportunity to object is presented where the parties are advised of the trial court’s intended sentence during the hearing itself or when the defendant has an adequate opportunity to make objections during the sentencing proceedings. (Id. at p. 752.)
Here, the prosecutor set out its proposal for sentencing, arguing for an upper term pursuant to the three strikes sentencing scheme. The trial court gave defendant an opportunity to have the trial court consider his comments before sentencing, and defendant mentioned that he deserved some leniency because he was homeless and had not been convicted of any serious offense since the year 2000. The trial court then imposed a doubled upper term pursuant to the three strikes law. After the trial court completed sentencing, defendant and the trial court had a leisurely discussion about the trial court’s recommendation for prison housing, the length of the sentence, and a calculation of the length of his term in light of available presentence credit. At that time, defendant had a meaningful opportunity to raise any objections to the factors in aggravation and to any failure to consider the probation officer’s claim of mitigation. Defendant showed no interest in arguing about whether an upper term was appropriate—during sentencing, he expressly deferred to the trial court’s discretion with respect to the specific term to be imposed. His only argument was that his criminal history was not aggravated because he had committed no serious offense since 2000 and he was homeless.
We conclude that defendant had a meaningful opportunity to object in the trial court on the grounds he now raises on appeal. As he failed to do so, pursuant to the decisions in Scott and Gonzalez, the contention is forfeited.
Furthermore, we would not order a reversal based on the merits of defendant’s claims. A “trial court is not required to set forth its reasons for rejecting a mitigating factor.” (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317; People v. Reid (1982) 133 Cal.App.3d 354, 371.) Also, “a trial court’s failure to exercise [sentencing] discretion must be demonstrated in the same manner as any other error. ‘We must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error-it will not be presumed. [Citation.]’” (People v. Tang (1997) 54 Cal.App.4th 669, 677-678.) Unless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria. (Cal. Rules of Court, rule 4.409; People v. Holguin, supra, 213 at pp. 1317-1318.)
Here, the record shows that the trial court considered defendant’s substance and alcohol abuse at sentencing, but probably determined that it was not mitigating as defendant had had an ample opportunity for rehabilitation and had not sought treatment for his addiction. Also, at sentencing, defendant denied substance abuse. On this record, it appears that the trial court properly reviewed the entire record and used proper criteria to reach a conclusion that the upper term was appropriate to defendant’s circumstances. (See Sandoval, supra, 41 Cal.4th at pp. 846-847.) Substantial evidence supports the trial court’s exercise of discretion. (People v. Hubbell (1980) 108 Cal.App.3d 253, 259-260.)
IV. THE ROMERO ISSUE
Defendant contends that the trial court abused its discretion by failing sua sponte to strike a prior conviction so as to sentence defendant as a first-time offender.
The contention lacks merit.
A. The Relevant Legal Principles
In Romero, supra, 13 Cal.4th 497, the court held that the three strikes law did not remove or limit the trial court’s section 1385 power to strike sentencing allegations. The court settled that in a three strikes case, the trial court can, on its own motion and over the prosecutor’s objection, strike a prior conviction allegation in furtherance of justice. (Romero, supra, at pp. 504, 529-530.) However, the trial court’s sentencing discretion is limited. (Id. at p. 530.) In exercising its discretion, the trial court must consider both the constitutional rights of the defendant and the interests of society represented by the People. (Ibid.)
In People v. Garcia (1999) 20 Cal.4th 490, quoting from the decision in Romero and other decisions, the court summarized the law with respect to striking a prior conviction. It reiterated that a trial court may not strike a sentencing allegation solely to accommodate judicial convenience or because of court congestion. Nor may a trial court strike a sentencing allegation simply because the defendant pleads guilty or when it is guided solely by a personal antipathy for the effect that the three strikes law would have on a defendant, while ignoring the defendant’s background, present offenses and other individualized considerations. (People v. Garcia, supra, at pp. 497-498.)
In People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony), the court said: “Consistent with the language of and the legislative intent behind the three strikes law, [the court has] established stringent standards that sentencing courts must follow in order to find such an exception. ‘[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 Penal Code section 1385(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.]” (Accord, People v. Garcia, supra, 20 Cal.4th at pp. 498-499.)
The Carmony court explained, “‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)
The trial court’s exercise of discretion to strike is reviewed for an abuse of discretion. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) “Under that standard [a defendant] . . . must demonstrate [on appeal] that the trial court’s decision was irrational or arbitrary. 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 court’s ruling, even if we might have ruled differently in the first instance.” (Id. at p. 310; see also People v. Garcia, supra, 20 Cal.4th at p. 503.)
B. The Analysis
The “three strikes law has, as its central focus, the status of the defendant as a repeat felon -- i.e., whether the defendant proceeded to commit a subsequent felony after already having been convicted of one or more serious or violent felonies.” (People v. Benson (1998) 18 Cal.4th 24, 34.) Defendant argues that his prior conviction was 10 years old and remote in time, and thus, should have been striken. However, defendant is a recidivist. He continued to commit crimes following his commission of the Arkansas residential burglary. The trial evidence and the probation report show that defendant was making his living and supporting his substance abuse by repeated thefts of expensive electronic and automotive products from local discount stores. Defendant had not performed well on recent grants of probation. An examination of his criminal history showed that he was just the sort of revolving-door offender that the three strikes law was designed to punish. (People v. Gaston (1999) 74 Cal.App.4th 310, 320.) Given defendant’s criminal history, lack of rehabilitation, and future prospects, the trial court had no obligation to raise the issue with defendant of striking the prior conviction. (See, e.g., People v. Philpot (2004) 122 Cal.App.4th 893, 907 [trial court’s failure to grant a Romero motion was proper in light of defendant’s continuous criminal history, parole violations, lack of prospects for rehabilitation, lack of meaningful crime-free periods, and the seriousness of his present and past offenses].)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.