Opinion
D059311
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. DWIGHT L. VANZANDT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD225208/SCD222394)
APPEAL from a judgment of the Superior Court of San Diego County, Frank A. Brown, Judge. Affirmed.
In December 2010, Dwight L. Vanzandt pleaded guilty to four counts of residential burglary (counts 1-4), two counts each of robbery (counts 5-6) and kidnapping for robbery (counts 7-8), and one count of kidnapping a victim under fourteen years of age (count 9). Vanzandt admitted allegations that he: (1) committed counts 5 through 9 while released on bail; (2) used a deadly weapon (a screwdriver) while committing the robbery in counts 5 and 6; (3) had a prior serious felony conviction; and (4) had a strike prior conviction in 1984.
The court denied Vanzandt's motion to dismiss the strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and sentenced him to life with the possibility of parole plus 28 years. Vanzandt contends the court abused its discretion by denying his Romero motion to dismiss the strike. He also asserted that the trial court erroneously imposed multiple separate prior offense enhancements notwithstanding that only one was charged and admitted. He withdrew this argument in his reply brief in light of this court's decision in People v. Misa (2006) 140 Cal.App.4th 837. Based on this concession, we do not address this argument. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Counts 1 through 4 pertain to four separate residential burglaries committed between July and August 2009 in San Diego. The victims reported the burglaries in their respective homes to police, and DNA left at the scene of entry in count 3 matched Vanzandt.
Counts 5 through 9 pertain to a burglary committed on January 17, 2010. Vanzandt entered an occupied residence armed with a screwdriver. He then forced the male resident and the resident's wife and baby to take him in their car to obtain money from an ATM. Vanzandt forced the wife to hold the baby in the passenger seat. The male resident stopped the car and refused to drive unless the baby was in the car seat. Ultimately, Vanzandt fled on foot after telling his victims that he would kill them if they called the police.
Vanzandt's strike arises out of a 1984 residential burglary conviction. At sentencing, Vanzandt addressed the court, apologized for his actions and asked the court to strike his strike prior under Romero. Vanzandt argued that this was appropriate because: (1) the strike prior occurred in 1984; (2) he had no other violent crimes on his record aside from the counts in the current case; and (3) he pleaded guilty to the current offenses, allowing the court to avoid a jury trial. He also argued that since 1991, he has had only one other felony, which was drug-related and that it was his drug problem that led him to commit the current offenses.
The court denied the Romero motion, noting it could not justify granting it in light of Vanzandt's criminal record and most recent behavior, which included "crimes against the person."
DISCUSSION
There is a "legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law." (People v. Carmony (2004) 33 Cal.4th 367, 376.) Only extraordinary circumstances justify departure from this presumption. (Id. at p. 378.) The question is "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." (Id. at p. 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.) We review the trial court's denial of a Romero motion for abuse of discretion. (People v. Carmony, supra, at p. 376.)
Notwithstanding Vanzandt's age (50), the nature of the offenses, his drug addiction, and the separation of time between serious offenses, the court found that it could not justify dismissing the strike based on the conviction of kidnapping for theft. Vanzandt contends the court abused its discretion when it refused to dismiss the strike. He asserts he is "nothing like the type of people for which the 'Three Strikes Law' was enacted."
In denying the Romero motion, the court considered Vanzandt's extensive criminal history dating back to 1984 when he was convicted of residential burglary. He was sentenced to six years, and while serving his prison term, Vanzandt was given an additional 16 months in prison for possessing drugs. In 1992, Vanzandt pleaded guilty to possessing cocaine while armed with a firearm. Between 1995 and 2004, Vanzandt was convicted three separate times for driving under the influence. Also, Vanzandt pleaded guilty for transporting or selling cocaine in 2005. Vanzandt's criminal record and the span of time that has elapsed, supports a conclusion that he has not taken sufficient steps to rehabilitate himself.
Additionally, the court considered the aggravated circumstances of the current offenses. Here, Vanzandt entered an inhabited dwelling armed with a screwdriver, and threatened and kidnapped a family, including a six-month-old baby.
The court also considered "the particulars of his background, character, and prospects," (People v. Williams, supra, 17 Cal.4th at p. 161) including his age, the fact that he has a sixteen-year-old son, and that his wife and ex-wife remain supportive and were present in court. Nonetheless, the court could not justify striking the strike because of Vanzandt's criminal record and most recent behavior, which included "crimes against the person" involving multiple victims.
To show an abuse of discretion, Vanzandt must demonstrate 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 [the] prior convictions." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) Here, while reasonable people may disagree with the trial court's conclusion, Vanzandt has not met his burden of showing that the decision was irrational or arbitrary. Accordingly, we conclude the trial court did not abuse its discretion in denying the Romero motion.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J. WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.