Opinion
D071371
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. COLERIDGE BERNARD STROUD, Defendant and Appellant.
Benjamin Boyce Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Barry Carlton and Christopher Pratt Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD261604) APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed. Benjamin Boyce Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Barry Carlton and Christopher Pratt Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
In the present case (case No. SCD261604), Coleridge Bernard Stroud pleaded guilty to carjacking (Pen. Code, § 215, subd. (a); count 1), kidnapping (§ 207, subd. (a); count 2), robbery (§ 211; count 3), evading officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 4), and misdemeanor sexual battery (§ 243.4, subd. (e)(1); count 5). Stroud admitted the allegations that he committed the counts 1 through 4 felonies while released from custody on bail (§ 12022.1, subd. (b)) and he had suffered a prior felony conviction as well as two prior strike convictions under the "Three Strikes" law (§ 667 subds. (a); (b)-(i)). In exchange, the People dismissed the counts against Stroud in cases Nos. SCE348887 and SCD265623. The court sentenced Stroud to 38 years to life in state prison. Stroud contends the court abused its discretion by denying his motion to strike his prior strikes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.
Statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Stroud stipulated that the preliminary hearing transcript provides the factual basis for his plea. D.P. testified at that hearing that on April 12, 2015, at around 9:05 p.m., she was driving in downtown San Diego to pick up her boyfriend. When she stopped at a traffic light, Stroud forced his way into her car and ordered her to drive away or he would hurt her. Stroud told her he was going to a house to buy drugs. Stroud took away her phone and when her boyfriend called, told him D.P. was safe and was doing Stroud a favor by giving him a ride. Stroud directed her to park near a house that was under construction. Stroud turned off the ignition and lights, and took the car keys. Stroud touched D.P. on her vagina over her clothing. They fought in the vehicle and, eventually, D.P. ran away and called the police.
Shortly afterwards, a San Diego Harbor Police officer saw D.P.'s vehicle, which had been reported stolen. The officer activated his emergency lights and sirens. Stroud, who was driving D.P.'s vehicle, continued driving at about 60 miles per hour in a 45-mile-per-hour zone. Stroud crashed into a pole, refused police orders to get on the ground, and jumped into the San Diego bay.
The probation report set forth Stroud's history of criminal convictions starting in 1989. That year, Stroud was already over 21 years old when he was convicted of felony drug possession and receiving stolen property. In 1991, he was convicted of receiving stolen property and, in a separate incident, unlawful driving or taking of a car. In 1992, he was convicted of his two strike offenses of armed robbery and attempted second degree robbery, for which he was sentenced to ten years eight months in prison. The probation officer's report of that incident stated: "The two victims in this matter are apparently husband and wife. They were sitting on a curb by a shopping center, waiting for a bus. They observed [Stroud] arrive at the location in a car and to pull into the parking lot. [Stroud] approached the victims from behind, and handed them a sheet of paper with an address on it, and asked [one of the victims] if she knew where it was. [¶] [Stroud] then pulled out a chrome plated pistol and grabbed the victim's purse, gaining control of the purse. [Stroud] then walked up to the [second victim] and pointed the pistol at him and stated, 'give me your wallet, mother fucker.' The victim, who apparently speaks little, if any, English did not understand, and began to unstrap his watch. At this point, [Stroud] began to slowly back up to his car, got in the car, and drove off."
In his Romero motion, Stroud argued that under section 1385, the court should exercise its discretion and dismiss his 1992 strike convictions because they did not result in violence common to robbery offenses, no one was injured, the offenses were remote in time, he had since been rehabilitated, the punishment under the Three Strikes law was disproportionate to the severity of his current offense, and his criminal history results from his addiction to controlled substances. He argued in mitigation that he had "spent nearly twenty years as a successful businessman, pastor, homeowner, husband, and father. When his wife filed for divorce in 2012, his life spun out of control and he began using illegal drugs again after more than 20 years of sobriety." He claimed the evidence in the current case showed he was under the influence of drugs at the time of the incident.
Section 1385 subdivision (a) provides: "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The Court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading." --------
In opposition to Stroud's motion, the prosecution argued he has not been able to remain law abiding: "[Stroud] was out on bail and non-compliant and he report[e]dly was using controlled substances throughout his release. [Stroud] was granted several opportunities to attend treatment and alter his criminal conduct. However, he failed and was eventually sentenced to prison in several cases."
In denying the Romero motion, the court stated Stroud came within the spirit of the Three Strikes law: "This case is one in which the court takes the exercise of discretion very seriously. The case has features that many cases do not in similar circumstances. . . . [¶] The court has taken into consideration not only the nature of the strikes, but also the length of time that has elapsed since those strikes occurred. The court also notes that the strike offenses occurred within a relatively short period of time, at a time before Mr. Stroud was, I think, even 25 years of age. Before the occurrence of the present offenses, the court has taken also into consideration what for most of the individuals who come before this court is an extraordinary period of good works of what appears to be honest citizenship, service to the community, service to his family. The court is also taking into consideration the offense and the nature of the current offense, which if his previous 20 years was extraordinary, the current sequence of crimes is quite extraordinary as well." The court additionally declined to exercise its Romero discretion separately as to count 4.
DISCUSSION
Stroud contends the court abused its discretion by denying his motion to dismiss the prior strikes allegation, claiming he fell "outside the spirit of the [T]hree [S]trikes law because he had two prior strikes stemming from a single incident, then had a drug relapse after nearly two decades as a crime-free, productive member of society."
The trial court's power to dismiss an action in the furtherance of justice under section 1385, subdivision (a), includes the lesser power to strike allegations or vacate findings relevant to sentencing, including allegations or findings that a defendant has prior felony convictions. (People v. Williams (1998) 17 Cal.4th 148, 151 (Williams).) We review a trial court's decision whether to dismiss or strike a sentencing allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-374 (Carmony).)
"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." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
In ruling whether to strike or vacate a prior conviction allegation or finding under section 1385 "or in reviewing such a ruling, 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 . . . spirit [of the Three Strikes law], 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, 17 Cal.4th at p. 161.)
"Thus, the [T]hree [S]trikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) In light of that presumption, a trial court abuses its discretion in failing to strike a prior felony conviction allegation only in limited circumstances, such as where it was unaware of its discretion to strike the allegation, considered impermissible factors in declining to strike the conviction, or where " '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." (Ibid.)
Applying these principles, we see no abuse of discretion in the court's decision to deny Stroud's Romero motion. The court was fully aware of its discretion to strike a strike and based its decision not to do so largely on the grave nature of Stroud's prior convictions and the "extraordinary" nature of the current offenses. Like the trial court, we are aware Stroud remained crime-free for a significant time. However, both his strikes and the current crimes involved serious unprovoked confrontations with vulnerable individuals. Further, he continued to commit crimes despite having being incarcerated. In fact, he committed the present crimes while he was released on bail. The court's decision was reasonable in light of Stroud's criminal record.
As the California Supreme Court noted in Carmony, "[b]ecause 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 [T]hree [S]trikes scheme must be even more extraordinary." (Carmony, supra, 33 Cal.4th at p. 378.) No such extraordinary circumstances exist in the present case. Considering Stroud's extensive criminal history, we find no violation of the spirit of the Three Strikes law or abuse of discretion in the court's refusal to strike Stroud's prior strike conviction allegation. In challenging the court's exercise of discretion, Stroud emphasizes that none of his prior convictions were violent felonies. The court presumably considered that fact in exercising its discretion. Therefore, this argument does not alter our conclusion.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.