Opinion
A154877
11-15-2019
THE PEOPLE, Plaintiff and Respondent, v. DOMINIC G. TURNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17SF013872A)
Defendant Dominic Turner pleaded no contest to one felony count of fleeing a pursuing peace officer while driving in a willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)) and admitted a prior felony conviction. He then filed a Romero motion asking the trial court to strike his prior felony conviction in the interests of justice under Penal Code section 1385. The trial court denied the motion and sentenced defendant to a prison term of four years (double the two-year middle term for the offense). On appeal, defendant argues the trial court misunderstood the scope of its discretion because it mistakenly believed its choices were limited to (1) granting the Romero motion and granting him probation, or (2) denying the motion and sentencing him to the maximum four-year term under the plea agreement. We disagree and affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was in the front passenger seat of a vehicle that was stopped by police officers in Foster City at around 4:00 a.m. When asked to identify himself, defendant gave the officers a false name. After the officers ordered the driver out of the vehicle, defendant jumped into the driver's seat of the vehicle and drove away. In the ensuing chase, defendant drove at speeds in excess of 120 miles per hour. He drove erratically through residential areas at approximately 60 to 80 miles per hour and ran two red lights.
Defendant was charged by information with felony counts of driving a vehicle without consent (Veh. Code, § 10851, subd. (a); count 1) and fleeing a pursuing peace officer while driving with a willful or wanton disregard for the safety of persons (Veh. Code, § 2800.2, subd. (a); count 2), and a misdemeanor count of giving false information to a police officer (§ 148.9, subd. (a); count 3). The information also alleged that defendant had one prior serious or violent felony conviction for robbery (§ 211) in 2007. Defendant entered a plea of no contest to count 2 and admitted the prior felony conviction. At the plea hearing, the trial court stated that defendant would be sentenced "to not more than four years" in state prison, and that the court would "consider a Romero motion" at the time of sentencing.
Defendant filed a Romero motion asking the trial court to strike his prior felony conviction on the grounds that his current offense was not inherently violent or life-threatening given the early morning hour in which the crime took place and the absence of any injury to persons or damage to the vehicle. The motion noted that defendant's prior felony offense was remote in time and that his other prior criminal convictions were either misdemeanors or less serious than the robbery offense. Defendant also claimed he had not been able to recover from traumatic life events, including his brother's death and his mother's suicide. Finally, defendant informed the court of his acceptance into the Jericho Project, a treatment program for drug addiction.
At the sentencing hearing, the trial court indicated that it had read the probation report and the Romero motion. Defendant's counsel reiterated that defendant had entered the Jericho program and requested the court to consider that "as an avenue." The court acknowledged the adversity in defendant's life and his desire to enter a residential treatment program. However, the court observed from the probation report that defendant had not attempted to enter the county jail's in-house drug program, which in the court's view indicated a lack of seriousness to address his substance abuse issues. And in addition to his prior felony conviction, the court observed, defendant had committed domestic violence and stalking offenses and had previously absconded from two treatment programs. The court also found that his current offense was "particularly reckless" and dangerous to public safety. Based on the totality of these factors, the court denied the Romero motion. The court then denied defendant's request for probation and sentenced him to prison for four years—which reflected the middle term of two years (§ 18, subd. (a) [felony punishable by imprisonment for 16 months, or two or three years]), doubled for the prior felony conviction (§ 667, subd. (e)(1)).
After judgment was entered, defendant filed a timely notice of appeal and a request for a certificate of probable cause, which was granted.
DISCUSSION
Defendant appeals on the sole ground that the trial court abused its discretion in denying his Romero motion.
In Romero, the Supreme Court held that section 1385, subdivision (a), permits a trial court to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising this discretion, the court must consider "whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] 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 [or she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
A trial court's refusal to strike a prior conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) Abuse occurs, for example, where the trial court was not " 'aware of its discretion' " or where it considered impermissible factors in declining to dismiss. (Id. at p. 378.) Where the record is silent or demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, the ruling is affirmed. (Ibid.)
The gist of defendant's argument on appeal is that the record is ambiguous as to whether the trial court understood the full scope of its discretion. According to defendant, the trial court considered only the alternatives of granting the Romero motion and giving him probation, or denying the motion and sentencing him to the maximum four-year term under the plea agreement. Defendant contends the court never considered whether to deny the motion and sentence him to double the lower prison term of sixteen months, or to grant the motion but sentence him to prison for sixteen months, or two or three years. We are not persuaded.
The record shows that the trial court appropriately considered the nature and circumstances of defendant's present offense, his prior felony conviction and other prior offenses, and his background, character, and prospects in concluding that he should not be deemed outside the spirit of the Three Strikes law. (Williams, supra, 17 Cal.4th at p. 161.) And no ambiguity appears in the record suggesting that the trial court misunderstood its discretionary authority in the manner defendant contends, i.e., that the court believed its denial of the Romero motion necessarily meant it had to deny probation. Rather, we may reasonably infer from the court's comments at the hearing that it exercised its discretion to deny probation given defendant's continuing criminal conduct and his failed history and lack of seriousness with regard to treatment programs.
Nor does the record suggest that the trial court believed it lacked discretion to impose any sentence other than the maximum four-year term under the plea agreement after it denied the Romero motion. Under California's determinate sentencing law, when a statute specifies three possible terms of imprisonment, the court "shall" impose the middle term unless there are circumstances "in aggravation or mitigation of the crime." (§ 1170, subd. (b).) Here, the trial court rejected defendant's argument that his offense was minor and non-life-threatening, finding instead that the offense was reckless and dangerous to the public. This reasonably indicates the court found no mitigating circumstances to justify imposition of the lower term. In sum, the record amply supports the trial court's awareness of the scope of its discretion in deciding the Romero motion and determining the appropriate sentence.
As to whether the trial court understood that it could grant the Romero motion and sentence defendant to a prison term of sixteen months or two or three years, the record is simply silent in this regard. On a silent record, we presume the trial court correctly understood the law and affirm the judgment. (Carmony, supra, 33 Cal.4th at p. 378.)
People v. Lua (2017) 10 Cal.App.5th 1004 (Lua), cited by defendant, is inapposite. In that case, the defendant received a sentence of 17 years after a jury found him guilty of possession and transportation of a controlled substance for sale, and the trial court found true the allegations of five drug-related prior convictions, resulting in five sentence enhancements under Health and Safety Code section 11370.2, subdivision (c). During the general sentencing hearing, the court remarked that the 17-year sentence was "the lowest sentence possible" and the "minimum." (Lua, at p. 1011.) Based on these remarks, the Court of Appeal found the record ambiguous as to whether the court was aware of its authority to impose a lower sentence by striking one or more of the enhancements. (Id. at p. 1021.)
Here, it goes without saying that the trial court was aware of its discretion to strike the prior felony conviction, as this was the issue squarely presented in the Romero motion, and there was no argument that judicial discretion on the matter was wholly lacking. And unlike the situation in Lua, the court here did not refer to the four-year sentence as "the lowest possible sentence" or the "minimum" sentence it could impose, nor does defendant cite any other remarks by the court suggesting a mistaken belief in the scope of its discretion. The court's statement at the plea hearing that defendant would be sentenced "to not more than four years" in state prison reasonably suggests its understanding that a lower prison sentence could be imposed.
In his reply brief, defendant cites People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), an opinion issued by Division Five of this court after defendant filed his opening brief. In Morrison, the defendant was convicted of first-degree murder with an enhancement under section 12022.53, subdivision (d), for personally and intentionally discharging a firearm and proximately causing great bodily injury or death. He had been initially charged with lesser firearm enhancements under section 12022.53, subdivisions (b) and (c), but they were eventually dismissed, leaving only the more serious enhancement under subdivision (d). (Morrison, at p. 221.) After the Legislature amended section 12022.53 to give courts the discretion to strike firearm enhancements, the trial court recalled the defendant's sentence, but ultimately denied his request to strike the section 12022.53, subdivision (d), enhancement. (Morrison, at p. 220.) Because no published case had yet held that an uncharged lesser firearm enhancement could be imposed in connection with striking a greater enhancement, and because the record was unclear whether the trial court understood it had this discretion (id. at pp. 223-224), Morrison remanded for resentencing, concluding the trial court could have imposed the lesser, though uncharged, firearm enhancements under section 12022.53, subdivisions (b) and (c). (Morrison, at pp. 221-223.) Here, in stark contrast, the matter does not involve an undecided legal question regarding the trial court's sentencing discretion. As discussed, the record amply demonstrates the trial court's awareness and proper exercise of its discretion under the governing law.
The section 12022.53, subdivision (b), enhancement applies when a firearm is personally used in the commission of a felony. The section 12022.53, subdivision (c), enhancement applies when a firearm is personally and intentionally discharged in the commission of a felony.
DISPOSITION
The judgment is affirmed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Petrou, J.