Opinion
B158036.
7-25-2003
THE PEOPLE, Plaintiff and Respondent, v. EVERETT TOY, Defendant and Appellant.
Saiid Arjomand, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Jeffrey B. Kahan, Deputy Attorneys General, for Plaintiff and Respondent.
Everett Toy appeals from the judgment after a jury convicted him of burglary, grand theft auto, and vehicle theft (Pen. Code, §§ 459 ; 487; Veh. Code, § 10851). The trial court found Toy had a prior serious felony conviction for which he had served a separate prison term. He was sentenced to a total term of 14 years 4 months (Pen. Code, §§ 667, subd. (a); 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b)). Toy contends the trial court abused its discretion by denying his motion to strike his prior conviction under People v. Superior Court (Romero) (1966) 13 Cal.4th 497, 917 P.2d 628. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The trial evidence established that as officers watched, Toy and Tracy Griffen removed items from a residence and placed them in a Volkswagon and a stolen pickup truck parked in the driveway. Toy was wearing a bright orange vest. The owners of the residence were away on a trip. Two days earlier the residence had been burglarized and a copy of the owners travel itinerary had been taken. After about 30 minutes, Griffen left in the Volkswagon and Toy drove away in the pickup truck. Officers stopped both vehicles. In the bed of the pickup truck, they found electronics, jewelry, computers and other personal property belonging to the owners of the residence, who were away on a trip. Toy and Griffen were arrested. The owners returned and found their home had been broken into and ransacked. Much of their personal property, including their Volkswagon, was gone.
Tracy Griffen pled guilty to residential burglary and received formal probation on condition that she serve a one-year jail term. She is not a party to this appeal.
Toy testified in his defense that he was a construction worker. He agreed to help his friend Kenny by moving the belongings of Kennys uncle into storage. Kenny loaned Toy the pickup truck. Toy enlisted his friend Griffen to help him. Toy gave police the keys to the storage facility.
In rebuttal a police officer testified he found no storage receipt or keys in the pickup truck. Toy said he was a construction worker, but he could not recall his employers name or telephone number. Nor could Toy provide any identifying information about Kenny. Tracy Griffen testified that when they were inside the residence, Toy directed her to take "the small stuff." She assumed they were going to split the proceeds from the sale of the stolen property. A neighbor testified that two days before the burglary, he saw Toy emerge from the pickup truck, wearing an orange safety vest.
The jury convicted Toy of first degree burglary, grand theft auto (Volkswagon), and one count of vehicle theft (pickup truck), and acquitted him of one count of vehicle theft (Volkswagon). In a bifurcated proceeding, the trial court found that Toy had a Mississippi conviction for raping a child under the age of 14, which the court analogized to Californias serious felony of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)) for purposes of sentencing. The court denied appellants Romero motion and sentenced Toy to 14 years four months, consisting of an eight-year term for the residential burglary, a consecutive one-year four-month-term for the vehicle theft, and a five-year enhancement for the prior rape or serious felony conviction. The court imposed a sentence of one year four months for the grand theft auto, which it stayed pursuant to Penal Code section 654 .
DISCUSSION
Toy contends the trial court abused its discretion by declining to strike his 1989 Mississippi rape conviction because it is too remote and Toys only subsequent conviction was for trespass in July 2001. He also characterizes the rape as "non-forcible" and stresses that he was sentenced to probation.
Toys claim he had a trespass conviction in July 2001 is not supported by the record. According to the probation report, Toy was arrested for possessing drug paraphernalia in July and for grand theft auto and burglary in August 2001 before committing the current offenses.
A trial court may exercise its discretion to strike a prior conviction in furtherance of justice. (Pen. Code, § 1385, subd. (a); People v. Romero, supra, 13 Cal.4th at pp. 529-530; People v. Williams (1998) 17 Cal.4th 148, 151-152, 948 P.2d 429.) "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 . . . 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 [Three Strikes] schemes 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 Williams, supra, at p. 161.)
"The striking of a prior serious felony conviction is not a routine matter. It is an extraordinary exercise of discretion, and is very much like setting aside a judgment of conviction after trial. [Citation.]" (People v. McGlothin (1998) 67 Cal.App.4th 468, 474.) It is a conclusion "that an exception to the [sentencing] 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." (Ibid.)
Applying this standard, the trial court properly exercised its discretion in denying appellants Romero motion. Before ruling on Toys motion, the court considered his current and prior offenses, as well as his character and background. In addition, the court read the probation report. The probation officer suggested several unfavorable factors, found no favorable factors and recommended sentence to state prison. The court also listened to the arguments of counsel before deciding against leniency under Romero. Defense counsel urged the trial court to consider favorable factors akin to those Toy has recited on appeal.
The trial court was presented with evidence that when Toy committed the rape in 1985, he was 20 and his female victim was 13 years old. According to the victims account, the rape was forcible. Toy pulled her into his residence, removed her clothing and repeatedly sexually assaulted her before she was able to escape. (CT 247) In 1989 the court imposed a five-year suspended sentence and placed Toy on probation. In 1992 the court found Toy committed a probation violation, revoked his probation, and imposed the previously suspended sentence. Toy was discharged in July 1993.
The People were unable to determine why Toy was not convicted of the offense until 1989.
Toys most recent offenses were committed in August 2001. As the court noted, Toys eight-year conviction-free hiatus was relatively short and did not outweigh the seriousness of his past and present felonies. The court also considered the nature and circumstances of the current crimes. The "brazen" day-time burglary and car theft involved considerable planning and sophistication, including the use of a disguise and staking out the residence days earlier. Additionally, Toy expressed neither responsibility nor remorse for his actions. Instead he "concocted, . . . a story that was totally false" and was extremely "glib" during his testimony.
Based on this evidence, the trial court acted well within its discretion by finding Toy could not be "deemed outside the [Three Strikes] schemes spirit, in whole or in part" (People v. Williams, supra, 17 Cal.4th at p. 161) and denying his Romero motion.
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, Acting P. J., WOODS, J.