Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FCH06121Craig S. Kamansky, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
INTRODUCTION
A jury found defendant guilty of assault with a deadly weapon by a state prisoner. (Pen. Code, § 4501.) The jury also found true the allegation that defendant inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) The court found true the allegations that defendant suffered five prior strike convictions. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Defendant filed a Romero motion requesting that his prior strike convictions be dismissed. The court dismissed two of defendant’s prior strike convictions. Defendant contends that the trial court abused its discretion by failing to consider all the relevant factors prior to denying defendant’s Romero motion as to the other three prior strike convictions. We affirm the trial court’s ruling.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In his appellant’s opening brief, defendant asserts that the trial court failed to consider all the relevant factors when choosing not to dismiss three of his prior strike convictions; however, he asserts that the court only abused its discretion by not dismissing two of his prior convictions because a second strike sentence would be more than adequate. For clarity, we will construe defendant’s argument as alleging an abuse of discretion in the trial court’s decision not to dismiss defendant’s three remaining strike convictions.
FACTS
On June 21, 2003, defendant was in custody at the California Institute for Men in Chino. The victim was defendant’s cell mate. The victim awoke with defendant on top of him. Defendant cut the victim’s neck and stabbed his chest. Defendant testified that another inmate told him to attack the victim, who was in custody for a sex offense, or be attacked himself; however, defendant claimed that he refused to attack the victim and that defendant was stabbed, in a separate incident, for not carrying out the attack. Defendant testified that the victim was stabbed by an inmate who was walking by their cell on his way to the prison yard.
The second amended information alleged that defendant suffered from the following five prior strike convictions: (1) burglary (§ 459) in March 1986; (2) burglary (§ 459) in March 1986; (3) robbery (§ 211) in September 1991; (4) first degree robbery (§ 212.5, subd. (a)) in April 1993; and (5) burglary (§ 459) in April 1993.
Defendant filed a Romero motion requesting that the trial court strike all of his prior strike convictions. The court dismissed the two 1986 convictions due to the “situational aspect” of those crimes; however, the court felt it would be an abuse of its discretion to dismiss the three remaining strike convictions.
DISCUSSION
Defendant contends the trial court erred by not considering all the relevant factors prior to denying defendant’s Romero motion as to two of his prior strike convictions. We disagree.
We review a decision regarding striking a prior conviction under the “Three Strikes” law for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375; People v. Gillispie (1997) 60 Cal.App.4th 429, 435.) When a lower court rules on whether to strike a prior strike conviction, and when we review a ruling on the matter, the following issue must be considered: Whether a defendant should be deemed to be outside the spirit of the Three Strikes sentencing scheme, in whole or in part, given (1) the nature and circumstances of his present and prior convictions; (2) his background; (3) his character; and (4) his prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)
When considering the first factor—defendant’s present and prior convictions—the trial court discussed the facts of each offense. First, as to the two 1986 robbery convictions, the trial court stated, “I believe those [1986 robbery convictions] were youthful situations, and [the court]’ll take your attorney’s and the statements from your father and the grandmother into consideration that those were youthful transgressions that were against family members due to an out of control and escalating drug problem . . . .”
When analyzing defendant’s 1991 strike conviction, the court stated, “And you can, you know, kind of sugar coat, I suppose the ‘91 incident you claim was simply stealing food with a bad check or something, but the problem is the nature of robbery itself involves the use of force or fear or threat of force or fear of violence. And you were charged with robbery, you were convicted of robbery, and you were sentenced to state prison for robbery and that is a crime, you know, involving violence.”
When discussing defendant’s 1993 convictions, the trial court declared, “You got out on parole and the next thing you know you’re involved in a serious incident. You know, we have—just because he—I know there was a drug problem. . . . [Y]ou know, you signed a plea agreement in that case in 1993 and under Term 20 of the plea bargain there’s a box initialed which says, ‘I offer the Court the following fact as a basis to enter my plea of guilty to a felony on 2/16/93. While in Orange County I entered the residence of [the victim in the 1993 case] . . . with intent to commit theft. I took profit by force and fear after assaulting [the victim in the 1993 case] and inflicting great bodily injury. I have previously been convicted of serious felonies.’” The court went on to further discuss the facts and consequences of defendant’s 1993 offense.
When considering defendant’s current offense, the court stated, “And then we have this incident . . . . There’s another situation where, you know, now you use a weapon to inflict great bodily injury upon another prisoner who was—I listened to the facts and circumstances and he was no threat to you. Prison is bad enough. And when people go in there—and yes, I know there’s a lot of problems there. Nobody comes out of there better, but the fact of the matter is you were locked up for eight years or so and so you weren’t out doing other robberies. [¶] That’s all I can say. That’s a harsh reality and, you know, I’m sorry that these things happened to you with the drugs or whatever, but to me you’ve had more than enough notice and opportunity to work your way out of the problems.” The court further discussed its thoughts concerning defendant’s offense in the instant case.
Given the trial court’s thorough analysis of defendant’s current and prior convictions, we conclude the court properly considered the first factor.
In considering the second factor—defendant’s background—the court recognized that defendant struggled with drug addiction, which was a probable catalyst for the crimes he committed. The court also noted that the prison environment is problematic and that it too likely affected defendant.
In analyzing the third factor—defendant’s character—the trial court “read the declarations from [defendant’s] father and . . . grandmother.” The court also noted that defendant’s crimes had escalated to violent acts.
In regard to the fourth factor—defendant’s prospects—the trial court noted that defendant was “locked up from 1993 through . . . 2000 and then [defendant’s] parole was violated one, two, three, four times, five times within three years so [defendant was not] . . . able to be out in the community.” We infer from the court’s statement that it did not believe defendant had good prospects for avoiding criminal activity if it were to grant the Romero motion in its entirety.
We conclude that the trial court considered all the proper factors in denying, in part, defendant’s Romero motion. Accordingly, we find no abuse of discretion.
Defendant contends the trial court erred by not considering six relevant factors. First, defendant argues that the court did not consider defendant’s history of drug abuse; however, the court mentioned defendant’s drug problems several times. Second, defendant contends the court should have considered that defendant’s 1991 robbery conviction was for writing a bad check; however, the court did thoughtfully consider the facts of defendant’s 1991 conviction, as quoted ante. Third, defendant asserts the court failed to consider that he pled guilty in his prior cases; however, the court considered all of defendant’s prior offenses and quoted “Term 20” of defendant’s plea bargain for his 1993 conviction, as quoted ante. Fourth, defendant contends the court should have considered that he is married and has a young child. We infer that the trial court considered defendant’s family when it read the declarations of defendant’s father and grandmother. Fifth, defendant asserts the court failed to consider that other inmates forced him to commit the crime in the instant case by threatening him. We note that the trial court explicitly stated that the prison environment is problematic. The court also concluded that defendant inflicted great bodily injury upon another prisoner who was “no threat” to defendant. Sixth, defendant argues the court should have considered that the prison system facilitated the attack in the instant case by placing a known sex offender in the general population where officials knew he would be attacked. The trial court noted that the prison environment is problematic and that “[n]obody comes out of [prison] better . . . .” From that comment, we infer that the trial court considered the issues defendant confronted while in prison. Accordingly, we conclude that defendant’s arguments have no merit.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J. KING, J.