Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BF115862A. Lee P. Felice, Judge.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Gomes, J. and Dawson, J.
OPINION
Alfredo Torres pled no contest to a felony count of recklessly fleeing from a pursuing peace officer (Veh. Code, § 2800.2), admitted he had a prior conviction that constituted a strike within the meaning of Penal Code section 667, subdivisions (b) through (j), and admitted he had served a prior prison term within the meaning of section 667.5, subdivision (b). In exchange for Torres’s plea, the People agreed to dismiss count two, felony vehicle theft (Veh. Code, § 10851, subd. (a)), and agreed to dismiss a second allegation that Torres had served a prison term within the meaning of section 667.5, subdivision (b). In addition, the trial court agreed it would impose a maximum sentence of 44 months in prison. The length of the sentence was calculated by imposing a mitigated term of 16 months for count 1, doubled due to the strike prior, plus one year for the prior prison term enhancement.
All further statutory references are to the Penal Code unless otherwise stated.
Prior to sentencing, Torres filed a Romero motion requesting the trial court exercise its discretion and dismiss the prior conviction that constituted a strike. The trial court denied the request. Torres argues the trial court abused its discretion in so doing. We affirm the judgment.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
In People v. Superior Court (Romero), supra, 13 Cal.4th 497, the Supreme Court held that a trial court retains discretion to strike a prior conviction that constitutes a strike within the meaning of the three strikes law pursuant to the provisions of section 1385, subdivision (a). (Romero, at pp. 529-530.) We review the trial court’s decision not to strike a prior conviction for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) “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 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 p. 376.)
“[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.] Where the record is silent [citation], or ‘[w]here 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’ [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 described in [People v.] Williams [(1998)] 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 376.)
Before applying these rules, we first dispense with the People’s suggestion that the sentence imposed on Torres was part of the plea agreement, thus preventing Torres from arguing the trial court had discretion to dismiss the prior conviction. Although a reading of the transcript of the hearing at which the trial court accepted Torres’s plea supports the People’s position, in ruling on Torres’s request the trial court did not find the plea agreement included an agreed-upon sentence. Under these circumstances, we must conclude the agreement was for a maximum sentence, not a specific sentence.
On the merits, it is clear Torres’s argument must be rejected. He is not the type of career criminal who all reasonable people would agree falls outside of the spirit of the three strikes law. The facts of this case provide adequate evidence to support our conclusion. Torres took his girlfriend’s car without permission. She immediately reported the theft to the police. When officers located Torres driving the stolen car, he led them on a high-speed chase that reached speeds of 50 miles per hour in residential areas and speeds of 100 miles per hour on the highway. Torres took the time during the chase to “salute” pursuing officers with his middle finger. The chase ended when the car Torres stole ran out of gas.
Torres’s explanation for his conduct was that he did not realize what he was doing because he was high or drunk, or both. This explanation compounds the seriousness of the crime. Not only was Torres driving at dangerous speeds, he was doing so while not in complete control of his faculties. While it is fortunate that Torres did not harm anyone during the chase, it seems to us that result can be credited only to good luck. Torres does not deserve any special consideration for his good luck.
Carmony commands us to look at Williams for guidance in conducting our review. Williams holds that “in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law … 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.” (People v. Williams, supra, 17 Cal.4th at p. 161.) We now turn to these factors.
Torres’s criminal history began in 1993 when he was arrested three times. In January he was arrested for petty theft (§ 488) and placed on three years’ probation. In April he was arrested for driving under the influence of alcohol (Veh. Code, § 23152) and placed on three years’ probation. In December he was arrested for resisting arrest (§ 148) and battery (§ 243, subd. (b)) and again placed on three years’ misdemeanor probation. Torres was convicted of armed robbery (§ 211) in 1995 and served a prison sentence. He was paroled in August 2000 and was returned to prison one year later for violating his parole. He again was paroled in December 2001. In February 2002 Torres was convicted of possession of a controlled substance (Health & Saf. Code, § 11350) and was sentenced to prison. He was paroled in January 2003. He violated parole in February. Over the next three years, through May 2006, Torres was paroled five times and violated parole each time, the last time when he stole his girlfriend’s car.
In essence, Torres has spent the vast majority of the years between 1995 and the date of his arrest in prison for the crimes he committed. To argue he somehow falls outside the spirit of the three strikes law is absurd.
This conclusion is supported by the plea agreement made by Torres. In exchange for his plea, he negotiated a mitigated term sentence. He was exposed to an aggravated sentence based on his criminal record alone. The trial court reasonably could conclude that any lenience to which Torres was entitled was provided in the negotiated maximum sentence.
There is nothing in Torres’s background, character, or prospects that would lead us to a different conclusion. Torres argues his longtime drug and/or alcohol addiction, when combined with his claim of gainful employment, somehow transports him outside of the spirit of the three strikes law. We do not agree. First, the record belies Torres’s claim of long-term employment. He was last paroled on August 3, 2006, and he was arrested for the current offense on August 22, 2006. We do not see anything remarkable in his long-term prospects that would entitle Torres to special consideration. Nor do we find that the fact Torres has a long history of substance abuse to be such a strong factor that Torres becomes the exception to the three strikes law.
The probation report indicates that Torres had worked since July 2006. The difference is insignificant.
Torres’s primary argument is that the trial court failed to give his request the consideration he felt it deserved. At the sentencing hearing, the trial court gave each party an opportunity to argue and then stated it was denying the request “based in part on the recency of [Torres’s] release from prison on that commitment and his subsequent conviction and performance on parole.”
Torres complains that the trial court misstated his record and places too much emphasis on his criminal history and does not take into account his personal attributes. We have reviewed his criminal record above. We see nothing in his personal attributes or prospects that would transform this case into the extraordinary case that falls outside of the three strikes law. The trial court understood it had discretion and exercised that discretion in a reasonable fashion.
DISPOSITION
The judgment is affirmed.