Opinion
E069256
12-04-2018
THE PEOPLE, Plaintiff and Respondent, v. GEORGE TREVINO, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17002083) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
While on parole, defendant and appellant George Trevino used another person's credit card to buy a Costco membership and over $1,300 in merchandise. A jury found defendant guilty of identity theft (Pen. Code, § 530.5, subd. (a); count 1) and felony grand theft (§ 487, subd. (a); count 2). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms (§ 667.5, subd. (b)). After the trial court denied defendant's motion to dismiss his prior strike conviction pursuant to section 1385, defendant was sentenced to a total term of eight years in state prison with 270 days of credit for time served as follows: the upper term of six years on count 1, plus consecutive one-year terms for two of the four prior prison term enhancements; sentence on count 2 was stayed pursuant to section 654; and the court struck two of the prior prison term enhancements. On appeal, defendant contends the trial court abused its discretion in denying his motion to dismiss his prior 2015 strike conviction for criminal threats pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We find no error and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
In April 2017, the victim lived in Oregon and was not in California. The victim had a Citibank Visa credit card account ending in 9831 and did not give anyone permission to use his account. In May 2017, a representative from Citibank contacted the victim regarding irregular use of his Citibank card at a Costco in Rancho Cucamonga on April 28, 2017. The victim informed the Citibank representative that he had not made the Costco purchases. Citibank closed the victim's account and issued him a new credit card.
On April 28, 2017, at approximately 8:30 p.m., a supervisor at Costco in Rancho Cucamonga observed defendant purchasing high-end items, such as a laptop and several $100 gift cards, totaling $1,425.98, that raised suspicions. The supervisor asked defendant to wait and reviewed defendant's membership information and shopping history with other Costco managers. Defendant appeared to be agitated that the supervisor took defendant's receipt and did not give defendant his products immediately. Defendant's Costco membership had been opened that same day prior to his purchases. The Costco manager instructed the supervisor to give defendant the products and let him leave the store.
On April 29, 2017, the Costco supervisor reported the potential fraud incident to a Costco loss prevention agent. The Costco loss prevention agent investigated the incident and learned that defendant had paid $55 for his Costco membership and had used a Visa credit card to pay for it. When defendant signed up for his Costco membership, defendant used his name, George Trevino, and his identifying information. The Costco loss prevention agent also reviewed surveillance video of defendant shopping at the Costco on April 28, 2017. After reviewing the video, the Costco loss prevention agent made a copy of the surveillance video and reported the incident to San Bernardino County Deputy Sheriff Daniel Lopez. The Costco loss prevention agent informed Deputy Lopez that Costco was waiting for a chargeback from the credit card company, halting payment.
The surveillance video showing defendant shopping at the Costco was played for the jury at the time of trial.
On May 6, 2017, the Costco loss prevention agent received two chargebacks on the Citibank Visa credit card ending in 9831 in the amounts of $55 and $1,425.98 for transactions that occurred on April 28, 2017. The Costco loss prevention agent thereafter contacted Deputy Lopez, informing him that he had confirmed the fraudulent use of a Costco Citibank credit card and prepared a packet for Deputy Lopez.
On May 17, 2017, Deputy Lopez responded to the Costco in Rancho Cucamonga and spoke to the Costco loss prevention agent. Deputy Lopez also reviewed the surveillance video and receipts of defendant's purchases on April 28, 2017. Afterwards, Deputy Lopez contacted the victim. The victim informed the deputy that he was not responsible for the two transactions and that he did not know defendant. The victim also stated that he had not given defendant permission to make the purchases.
On May 19, 2017, Deputy Lopez interviewed defendant. After being advised of his constitutional rights, defendant spoke with Deputy Lopez, who recorded the conversation. Defendant stated that he went to the Costco, bought a Costco membership with a prepaid debit card, and paid for several items using the same prepaid debit card. Defendant repeatedly denied buying any laptop computers and claimed he had only spent $80 or $90. Defendant stated that he had bought the prepaid debit card on the street from an unknown man and did not know the charges would appear on someone else's account. He also asserted that he had not committed any fraud but had acted negligently in purchasing a prepaid card and informed Deputy Lopez that he wanted to reimburse Costco or the person who was charged for the items.
The taped conversation was played for the jury at the time of trial. --------
III
DISCUSSION
Defendant argues the trial court abused its discretion in denying his motion to dismiss his 2015 prior strike conviction for criminal threats because, in considering the factors, he does not fall within the spirit of the Three Strikes law. As explained below, defendant has failed to show an abuse of discretion.
A. Additional Background
Before sentencing, defendant filed a Romero motion to dismiss his prior strike conviction, arguing the current offenses were non-violent, the victim was reimbursed by his financial institution, and the crimes did not reflect criminal sophistication because he had used his true name and address while carrying them out. He also asserted that most of his prior convictions were drug-related offenses and that he had cooperated with investigators during the investigation.
The People opposed the motion, arguing defendant was within the spirit of the Three Strikes law. The People also asserted that defendant's prior strike offense for criminal threats occurred two years previously and was a serious felony and that defendant's criminal history dated back to 1994 when he was 18 years old. The People also pointed out that in 1994, defendant was convicted of first degree burglary, attempted robbery, and assault with a firearm on a person with a firearm, and was sentenced to 10 years in state prison. The People further noted that since those convictions, defendant had not remained free from prison custody for five years and that he was on parole at the time he committed the instant offenses.
The probation report set forth defendant's criminal history and background. It showed that defendant had accumulated 13 felony convictions, one of which was reduced to a misdemeanor, and four misdemeanor convictions. Defendant had also violated parole twice. The probation report stated that defendant tried to minimize his offenses and that defendant had admitted he was on parole when he committed the instant offenses. The probation report further indicated that defendant had admitted guilt and that he needed to change with whom he associated, as well as his own behavior. The probation report also noted that defendant used marijuana daily, heroin twice a week, and methamphetamine on a daily basis until recently and that he was gainfully employed for the last three months. In the recommendation section of the probation report, the probation officer recommended that defendant be sentenced to an aggravated term in prison "based on the sophistication displayed and his history."
At the sentencing hearing, after the parties submitted, the trial court denied defendant's motion to dismiss his prior strike conviction. In denying the motion, the court noted that it had reviewed the probation report and the motions filed by the parties. The court considered the factors set out in People v. Williams (1998) 17 Cal.4th 148 (Williams). The court found that in the present case, the identity theft was a serious crime, noting the monetary loss was substantial, and that even though defendant may have cooperated with law enforcement, he was not truthful during his interview with law enforcement In considering defendant's criminal history, the court found that defendant's prior strike conviction for criminal threats occurred "just in 2015" and showed potential violence. The court also noted that defendant's convictions from 1994 were very serious crimes, he was sentenced to 10 years, and he had been to prison five times for other convictions. The court also indicated that defendant's criminal history included prior offenses for driving under the influence and evading arrest, reflecting he was a danger to public safety, and that defendant was on parole when he committed the instant offenses. The court thereafter sentenced defendant to a total term of eight years in state prison.
B. Legal Principles and Standard of Review
"As the Supreme Court explained in Romero, section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the Three Strikes law, in the interests of justice." (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213, citing Romero, supra, 13 Cal.4th at pp. 529-530.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation . . . 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." (Williams, supra, 17 Cal.4th at p. 161.)
The purpose of the Three Strikes law is "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses." (§ 667, subd. (b).) The Three Strikes law "establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike," unless the trial court determines the defendant falls outside the scheme's spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338 (Strong).) "[E]xtraordinary must the circumstance be 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." (Id. at p. 338.) Thus, the Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
"The trial court is not required to state reasons for declining to exercise its discretion under section 1385." (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) The trial court "is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).)
A trial court's decision not to strike a prior conviction allegation is reviewed under the abuse of discretion standard. (Carmony, supra, 33 Cal.4th at p. 371.) "Under that standard an appellant who seeks reversal must demonstrate 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." (Myers, supra, 69 Cal.App.4th at pp. 309-310.)
C. Analysis
Here, the trial court properly denied defendant's Romero motion. Contrary to defendant's assertion, nothing in the record suggests defendant falls outside the spirit of the Three Strikes law. When denying the Romero motion, the trial court explained that it had reviewed the probation report and the motions filed by the parties which included the factors set out in Williams. The probation report and the motions filed by the parties described the nature of defendant's present offenses, defendant's statements to law enforcement, and defendant's criminal history. The probation report also noted defendant's statements concerning his ongoing substance abuse. Given the trial court's statements that it had reviewed the probation report and the motions filed by the parties, we cannot conclude that the trial court erred in denying defendant's motion or that it failed to consider the Williams factors in denying the motion. Indeed, the record affirmatively demonstrates that the trial court considered the nature of the present offenses, his prior serious and/or violent felony convictions, his criminal history, and his background, character, and prospects. Identity theft is a serious crime (see People v. Liu (2018) 21 Cal.App.5th 143), defendant lied to law enforcement concerning his crimes, he was on parole for the criminal threats conviction when he committed the instant offenses, and his prior strike conviction was less than two years old.
In sum, defendant cannot show that the trial court abused its discretion in denying his Romero motion. Given the trial court's statement that it had reviewed the probation report and the motions filed by the parties, we must conclude that it engaged in the requisite consideration of defendant's "background, character, and prospects." (Williams, supra, 17 Cal.4th at p. 161.) Moreover, although the record shows that defendant struggled with substance abuse, he may have been remorseful, and he was employed at the time he committed the instant offenses, those circumstances did not require the trial court to grant defendant's Romero motion. Rather, the probation report shows that defendant repeatedly committed crimes over a 23-year period, despite prior efforts on probation and parole. On this record, the trial court could rationally conclude that defendant was "a career criminal" with a "long and continuous criminal record" who should not "be deemed to fall outside the spirt of" the Three Strikes law. (Strong, supra, 87 Cal.App.4th at p. 338.) We cannot find an abuse of discretion in the denial of defendant's Romero motion.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.