Opinion
E052280 Super.Ct.No. SWF025538
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES THERON TURNER, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant James Theron Turner, going approximately 90 miles an hour, rear-ended another car that was going approximately 70 miles an hour. The other driver survived but suffered a broken rib and a broken finger. According to eyewitnesses, immediately before the accident, defendant was driving recklessly and aggressively. He was weaving in and out of lanes, straddling lanes, and cutting off other drivers. Two or three times, he zoomed up behind another car, then put on the brakes just as he was about to hit it.
When the police responded, defendant told them that he thought he had hit a guardrail. He appeared to be intoxicated. He failed various sobriety tests. However, a blood alcohol test was negative. He told officers that he had a back injury and he had taken one Soma and one Vicodin earlier in the day.
A jury found defendant guilty of driving under the influence and causing injury (Veh. Code, § 23153, subd. (a)) and reckless driving (Veh. Code, § 23103, subd. (a)). One "strike" prior (Pen. Code, § 667, subds. (b)-(i), 1170.12) and five 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were found true.
The jury was unable to reach a verdict on a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)) and on one count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); the trial court eventually dismissed these.
The trial court sentenced defendant to a total of 11 years in prison, plus applicable fines and fees.
Defendant contends:
1. The trial court erred by denying defendant's "Batson/Wheeler motion." A Batson/Wheeler motion asserts that the prosecution has exercised one or more of its peremptory challenges based on a juror's membership in a racial or other cognizable group. (See generally Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258.)
2. The trial court erred by denying defendant's "Romero motion." A Romero motion is a motion to dismiss a strike prior in the interest of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
3. The trial court erred by refusing to strike any prior prison term enhancements.
We find no error. Hence, we will affirm.
I
BATSON/WHEELER MOTION
Defendant contends that the trial court erred by denying his Batson/Wheeler motion, which was based on the prosecutor's peremptory challenges to two of the three African-Americans in the venire.
A. Additional Factual and Procedural Background.
1. Prospective juror B.G.
Prospective juror B.G. was an African-American man. He was unmarried, had no children, and was not employed. He had never served on a jury before.
2. Prospective juror T.S.
Prospective juror T.S. was an African-American woman. She was married, with four adult children; she was not employed outside the home.
Defense counsel posed the following hypothetical question: "[I]f [the prosecutor] calls fans . . . to say who won [a Lakers game], and they're all wearing Lakers gear, Lakers jerseys, Lakers shorts, would you be able to consider that . . . ? Like, wait a minute, he's saying the Lakers won, but he's wearing Lakers gear. Would you be okay with considering more than what people say, but also their motive and their biases?"
A prospective juror responded, "[Y]ou mean like if it's a police officer?" Defense counsel agreed, "It could be a police officer," but he asked the jurors to stick with his Lakers hypothetical. T.S. was not one of the jurors who was actually asked to answer this question.
When it was the prosecutor's turn, he asked T.S.:
"[THE PROSECUTOR]: Would you automatically discredit an officer just because they say, oh, I pulled someone over. Here is what I saw? [¶] . . . [¶]
"[T.S.]: No, I wouldn't.
"[THE PROSECUTOR]: Okay. So do you think you will be able to judge the evidence and how people testify based on what you actually hear, and you can consider other things, but you'll just base it on the evidence that you hear?
"[T.S.]: Um, just base it on evidence. Um
"[THE PROSECUTOR]: Well, I'll put it another way. You weren't at the scene on this day, were you?
"[T.S.]: No.
"[THE PROSECUTOR]: Okay. And that's why we have juries, to determine what happened. Because you weren't there, and you're unbiased, and you don't know anything right now, right?
"[T.S.]: No.
"[THE PROSECUTOR]: Okay. So . . . what you're to base your decision on is what we call evidence, which comes from the witnesses who testify, and documents or exhibits you get, and that's what you're to base your decision on. Do you think that you'll be able to do that?
"[T.S.]: Yes."
3. The Wheeler motion.
The prosecutor used his fifth and sixth peremptory challenges to remove B.G. and T.S., respectively. At that point, defense counsel made a Batson/Wheeler motion. He noted that there had been only three African-Americans in the venire, and the prosecutor had challenged two of them.
The trial court had dismissed a fourth African-American because he had arrived late.
The trial court found a prima facie showing of discrimination and asked the prosecutor to explain his challenges.
Regarding B.G., the prosecutor stated: "He was unemployed, single, no children." He added, "And yesterday he was late coming back from a break. Anybody who's not here on time, I don't want on my jury. I . . . take that as a sign of not being responsible."
Regarding T.S., the prosecutor stated: "[I]t was actually on a line of questioning brought around by [defense counsel] when he was talking about Lakers fans and would they have a bias. And he was talking about that with [another prospective juror], who was seated right next to [T.S.]. And [the other prospective juror] indicated that she would not think that they were biased just because they were Laker's [sic] fans.
"However, right next to her, [T.S.] was nodding her head, shaking her head yes up and down." He continued, "And I went back to [T.S.] afterwards, and I asked her about bias. . . . [¶] And [T.S.] had a tough time answering that question . . . . I even had to rephrase it a couple times to indicate, are you going to base your decision on evidence. . . . [¶] And she sort of hesitated for a while, and then ultimately she did say that she would base her decision on the evidence that was presented, which is the answer that we all hope for, but her initial inclination when [defense counsel] was questioning [the other prospective juror] was that she felt people could be biased because they're wearing the uniform.
"And I interpreted that to mean that she thinks police officers may be biased . . . . [¶]. . . And if she's inclined to think that someone wearing a uniform has a bias, I don't want that person on the jury.
"She was the only one . . . who hesitated and indicated that there might be a bias just because someone is wearing a uniform. And that is why I kicked [T.S.]."
The trial court denied the motion. It explained: "Regarding [B.G.], I can understand he's unemployed, single, no children, then he is late coming back. Not somebody [the prosecutor] wants on his jury. He said, ['L]ook, it's disrespecting the court. He doesn't work. You put all of that together, he might not be the most responsible person, and that's why I excluded him.['] And I can understand that . . . that has nothing to do with race.
"Now, on a different issue for [T.S.], although [the prosecutor] concedes, look, she answered the question, she would be okay based on the evidence, which is the answer we all want, of course.
"But I think it is also a race-neutral reason to dismiss someone when you're listening to an example, the Lakers, a person wearing a Lakers uniform, about bias. And then you could translate, based on her answers, you know what, a police officer is in uniform. That police officer may be biased."
B. Analysis.
1. General legal background.
"'"Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias."' [Citation.] . . . [W]hen challenges such as defendant's are made[,] "[f]irst, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' [Citations.] Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes. [Citations.] Third, 'if a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.' [Citation.]"' [Citations.]" (People v. Vines (2011) 51 Cal.4th 830, 848.)
"Here, the trial court found that defendant had made a prima facie showing, so the burden shifted to the prosecutor to explain his conduct. 'A prosecutor asked to explain his conduct must provide a "'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." [Citation.] "The justification need not support a challenge for cause, and even a 'trivial' reason, if genuine and neutral, will suffice." [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice would not be supported by a legitimate reason.' [Citation.]" (People v. Jones (2011) 51 Cal.4th 346, 360.)
"'"[W]e review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges 'with great restraint.'" [Citation.] The trial court's determination is a factual one, and as long as "'"the trial court makes a 'sincere and reasoned effort' to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal"'" when they are supported by substantial evidence. [Citation.]' [Citation.]" (People v. Thomas (2011) 51 Cal.4th 449, 474.)
"'"[R]ace-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie '"peculiarly within a trial judge's province"' [citations], and we have stated that 'in the absence of exceptional circumstances, we would defer to [the trial court].' [Citation.]"' [Citation.]" (People v. Jones, supra, 51 Cal.4th at p. 361.)
2. Prospective juror B.G.
The prosecutor explained that he challenged B.G. because he was unemployed, single, with no children, and also because he had come back late from a break. The trial court found that this was a legitimate, race-neutral reason. There is substantial evidence to support this finding.
Defendant argues that many people are unemployed due to economic conditions, rather than irresponsibility. He also argues that unemployment must have been a pretext, because the prosecutor did not ask B.G. why he was unemployed. Nevertheless, there is a common-sense correlation between being unemployed, unmarried, and childless and not being a fully responsible member of society. A juror's limited life experience has been recognized as a valid reason for a peremptory challenge. (People v. Gonzales (2008) 165 Cal.App.4th 620, 631, and cases cited.) Another prosecutor might not excuse such a juror, but that is not the standard.
Defendant similarly argues that lateness must have been a pretext, because the prosecutor did not ask B.G. why he was late. The prosecutor could fairly reason that B.G. would not necessarily have been truthful. Also, jurors generally stay near the courtroom during a break; there is rarely a good reason for them to come back late. Even if this is not true in every case, the prosecutor could still rely on broad generalities.
3. Prospective juror T.S.
The prosecutor explained that he challenged T.S. because she appeared to agree that witnesses wearing Lakers regalia could not be relied on to testify truthfully about the Lakers, and moreover, that a similar principle applied to police officers. The trial court found that this was a legitimate, race-neutral reason. The fact that T.S. was nodding and the fact that she was hesitant to agree to base her decision on the evidence are impossible to prove or disprove using the cold record; thus, these are the kind of matters of attitude and demeanor that are committed to the trial judge to determine.
Defendant argues that a witness in Lakers attire is not analogous to a police witness — "of course a 'uniform'-clad Lakers fan is going to be biased in favor of the Lakers . . . ." This overlooks the fact that another prospective juror explicitly drew the connection between a Lakers uniform and a police uniform; moreover, defense counsel expressly agreed that his hypothetical could just as easily have been about a police officer. (This may have been when T.S. was nodding.) To her apparent acceptance of the analogy must be added the fact that she was apparently reluctant to agree that she would not "automatically discredit" the testimony of a police officer. On this record, we cannot say the trial court erred by finding the prosecutor's reasons both genuine and legitimate.
II
ROMERO MOTION
Defendant contends that the trial court erred by denying his Romero motion.
A. Additional Factual Background.
Defendant was born in 1959; thus, at sentencing, he was 51. He had the following prior convictions:
1979: Receiving stolen property (former Pen. Code, § 496.1), a felony. Defendant was placed on probation for three years.
1982: Petty theft (Pen. Code, §§ 484, 488), a misdemeanor. Defendant was placed on probation for three years.
1984: Forgery (Pen. Code, § 470), a felony. Defendant was sentenced to three years in prison.
1985: Forgery (Pen. Code, § 470), a felony. Defendant was placed on probation for three years.
1986: First degree burglary (Pen. Code, § 459), a felony. Defendant was sentenced to four years in prison.
This was the strike prior.
1989: Petty theft with a prior (Pen. Code, § 666), a felony. Defendant was sentenced to 16 months in prison.
1991: Forgery (Pen. Code, § 470), a felony. Defendant was sentenced to two years in prison.
1995: Simple possession of a controlled substance (Health & Saf. Code, § 11350), a felony. Defendant was sentenced to three years eight months in prison.
1999: Driving under the influence (Veh. Code, § 23152, subd. (a)), a felony. The probation officer was unable to determine what sentence defendant received.
2001: Possession of a controlled substance for sale (Health & Saf. Code, § 11378, a felony. Defendant was sentenced to four years in prison.
Defendant had violated probation five times and parole three times.
Until his 2001 incarceration, defendant was a regular heroin user. He claimed that, during that incarceration, his mother had a heart attack; as a result, upon his release in 2003, he "set out to change his lifestyle and avoid further encounters with law enforcement." He had started a successful business. According to defendant, he had remained drug free.
Defendant told the probation officer that the accident happened because he bent down while reaching for his ringing cell phone and thus "t[ook] his eyes off the road."
Several of defendant's friends and relatives appeared at the Romero hearing and gave unsworn statements in his support.
B. Additional Procedural Background.
Before sentencing, defendant filed a written Romero motion. In it, he argued that "in light of the particular aspects of the current offense, the lack of any use of violence[] or . . . a weapon, his cooperation with law enforcement immediately after the incident, the remoteness of [the strike], . . . his otherwise law-abiding and honest life since being released from prison in 2003, and the support that is demonstrated by his family and friends, he is outside the spirit of the Three Strikes provisions." The People filed written opposition.
Defendant had already filed a previous Romero motion before trial. The trial court had denied that motion, without prejudice, ruling that it would be more appropriate to hear it after trial.
The trial court denied the motion. In a thorough explanation of its reasons, it found that "his lengthy criminal history indicates someone who has absolutely no regard for the rule of law." It rejected defense counsel's claim that the current offense was merely negligent: "It was an intentional crime. He got behind the wheel, drove down the highway at excessive speed . . . ." "He could have easily killed that poor woman . . . ." "Defense counsel notes that the strike was remote . . . . But taken in context with all of his convictions, . . . it fits within an overall pattern of the defendant's criminal behavior." "[D]espite the fact that the defendant has held down jobs . . . , it cannot be said that employment alone can outweigh his criminal conduct and lengthy time spent behind bars as a result of his conduct . . . ."
Defendant concedes that the trial court "conscientiously considered and ruled on" the Romero motion.
C. Analysis.
In Romero, the Supreme Court held that a trial court has discretion to dismiss a three-strikes prior felony conviction allegation under Penal Code section 1385. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The focus of the analysis must be on "'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.' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony, supra, 33 Cal.4th at p. 375.) "[W]e 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."' [Citation.] 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.'"' [Citation.] 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 pp. 376-377.)
"[T]he three strikes law . . . creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper." (People v. Carmony, supra, 33 Cal.4th at p. 378.) "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 . . . manifestly support the striking of a prior conviction and no reasonable minds could differ — the failure to strike would constitute an abuse of discretion." (Ibid.)
There are no extraordinary circumstances in this case. Defendant had a long and persistent history of felony offenses, peppered with probation and parole violations. This criminal record amply demonstrated that he was within the spirit of the three strikes law.
Defendant's single best argument is that after December 2003, when he was released from his last previous imprisonment, he had rehabilitated himself. He was a successful businessman, and (at least according to him) he had stopped using illegal drugs. Moreover, his current offense was not particularly heinous; taking an overdose of legal pain medication and, as a result, driving badly is the sort of crime that even a normally law-abiding person can at least imagine committing.
The trial court, however, was entitled to take the opposite view — that defendant was a normally non-law-abiding person, and in committing the current offense, he had returned to his old ways. Defendant was evidently abusing Soma and Vicodin. One of the charges on which the jury failed to reach a verdict was being under the influence of a controlled substance. (Health & Saf. Code, § 11550, subd. (a).) Vicodin (hydrocodone) is a controlled substance. (Health & Saf. Code, §§ 11055, subd. (b)(1)(I), 11550, subd. (a).) It is a defense to this crime that the controlled substance at issue had been lawfully prescribed. (Health & Saf. Code, § 11550, subd. (a); see People v. Martinez (1953) 117 Cal.App.2d 701, 708.) Defendant, however, presented no evidence that he had a prescription for Vicodin. He told officers he was not currently under a doctor's care. Moreover, defendant was a former heroin addict. A combination of Soma and Vicodin, known as a "Las Vegas cocktail," is said to mimic the effects of heroin. (<http://www.justice.gov/ndic/pubs10/10913/10913p.pdf>, as of Sept. 26, 2011.) The trial court could also properly consider the fact that defendant was not just driving badly; he was driving aggressively, almost as if inviting an accident.
Soma (carisoprodol) is not a controlled substance in California. (See Health & Saf. Code, §§ 11054-11058.)
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Defendant argues that the current offense did not involve intentional violence. Even so, it involved reckless violence, as well as actual injury. As the trial court properly observed, the victim could have been killed. She survived strictly due to luck, not due to anything that defendant did.
Similarly, defendant argues that his prior convictions, including the strike prior, did not involve violence. The three strikes law, however, applies to serious or violent crimes. The legislature has determined to list first degree burglary as a strike. (Pen. Code, §§ 667, subd. (a)(4); 1192.7, subd. (c)(18).) The facts and circumstances of the strike prior are not in the record. Thus, we cannot say that anything about it took defendant outside the spirit of the three strikes law.
Next, defendant argues that his offenses — including his current offense — "stem from his drug problems." In general, however, "when a defendant has a drug addiction or substance abuse problem, where the defendant has failed to deal with the problem despite repeated opportunities, where the defendant shows little or no motivation to change his life style, and where the substance abuse problem is a substantial factor in the commission of crimes, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence." (People v. Reyes (1987) 195 Cal.App.3d 957, 963; accord, People v. Williams (1998) 17 Cal.4th 148, 163 [defendant's failure to "follow through in efforts to bring his substance abuse problem under control" favored denial of Romero motion].)
Defendant also argues that the strike prior is remote. "The argument that [strike priors] are remote in time is without merit where, as here, the defendant has led a continuous life of crime. [Citation.]" (People v. Pearson (2008) 165 Cal.App.4th 740, 749.)
Defendant argues that he was remorseful. The probation report stated that he "appeared" remorseful. However, he also minimized his responsibility. Contrary to the testimony of eyewitnesses that defendant was driving aggressively and had come close to hitting other cars, defendant claimed that the accident happened simply because he was reaching for a ringing cell phone and took his eyes off the road.
Defendant notes that he had previously entered into a plea bargain that provided for a seven-year sentence; he argues, "Thus, the prosecution and the court felt that a sentence of less than 11 years was fair." The fact that a sentence of seven years was fair does not mean that a sentence of 11 years was unfair. Presumably defendant subjectively thought he was getting a better sentence by entering into the plea bargain. In any event, the plea bargain had been nullified precisely because the sentence had not been calculated correctly. The People could not be bound by a failed bargain.
Defendant relies on People v. Bishop (1997) 56 Cal.App.4th 1245. There, however, the People appealed from an order granting the defendant's Romero motion (Bishop, at p. 1248); the appellate court merely held that this was not an abuse of discretion. Thus, Bishop sheds no light on whether the trial court here abused its discretion by denying defendant's Romero motion. Indeed, in Bishop, the court observed, "While the People and perhaps even this court may be of the opinion that Bishop appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude. Rather, what counts is what the trial court in this case concluded . . . ." (Bishop, at p. 1251.)
In sum, then, defendant has not shown that the trial court abused its discretion by denying his Romero motion.
III
REFUSAL TO DISMISS ANY PRIOR PRISON TERM ENHANCEMENTS
Defendant contends that the trial court erred by refusing to strike any prior prison term enhancements.
A. Additional Factual and Procedural Background.
The probation officer recommended that the trial court dismiss three of the five prior prison term enhancements, explaining that "defendant has remained crime free since 2001."
At sentencing, defense counsel asked the trial court to follow this recommendation. The trial court nevertheless imposed all five prior prison term enhancements.
B. Analysis.
Under Penal Code section 1385, the trial court has discretion to dismiss charges and enhancements "in furtherance of justice . . . ." (See also People v. Bradley (1998) 64 Cal.App.4th 386, 392-397 [discretion to strike prior prison term enhancement].)
Much like the three strikes law, the prior prison term enhancement statute — Penal Code section 667, subdivision (b) — creates a strong presumption that any enhancement imposed pursuant to it is both rational and proper. Indeed, it is hard to imagine a situation in which it would be an abuse of discretion to refuse to dismiss a prior prison term enhancement. Certainly defendant cites no case so holding.
In connection with this contention, defendant raises many of the same arguments that he is raising in connection with his Romero motion. We reject these for the reasons already stated in part II.B, ante.
Defendant's only additional contention is that the trial court was already using his prior criminal record to impose the upper term, as well as to deny the Romero motion. Defendant forfeited this contention by failing to raise it below. (People v. Scott (1994) 9 Cal.4th 331, 356.) Alternatively, even if not forfeited, it lacks merit.
With respect to the upper term, the trial court stated that it was relying on a number of aggravating factors, including that "defendant's convictions are becoming increasingly serious"; defendant "has not gotten control of his addiction and, thus, remains a very serious threat to the community"; "defendant has consistently shown an inability to comply with . . . probation or parole"; the victim was particularly vulnerable; and defendant should have been aware of the dangers of driving under the influence because he had a prior conviction for it. Defendant has not cited any case holding that increasing seriousness and prior prison terms are the same "fact" for dual use purposes. In any event, even assuming that they are, the trial court cited so many other aggravating factors that its use of any one prohibited factor would be harmless error. (People v. Leon (2010) 181 Cal.App.4th 452, 468-469.)
With respect to the Romero motion, there is simply no dual use prohibition on using the same prior as the basis for both a strike and a prior prison term enhancement. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1516-1520; People v. Cressy (1996) 47 Cal.App.4th 981, 989-993.)
Perhaps it would not have been an abuse of discretion to grant defendant's request to dismiss one or more prior prison term enhancements on the theory that imposing them would be at least analogous to a true dual use. We cannot say, however, that it was an abuse of discretion to deny the request. This is particularly true because the legislature has commanded the imposition of the punishment; in other words, punishment is the rule, and dismissal is the exception, reserved for the extraordinary case. Defendant has not shown that this was such a case.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
MILLER
J.