Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA075991, Philip S. Gutierrez, Judge.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Raul Vejar, appeals from the judgment entered following his conviction, by jury trial, for possession of heroin with prior prison term and prior serious felony conviction findings (Health & Saf. Code, §11350, subd. (a); Pen. Code §§ 667.5; 667, subd. (b)-(i)). Sentenced to state prison for five years, Vejar claims there was sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
On July 22, 2006, Officer Peter Lopez responded to a call in El Monte and contacted the person who had requested the police. Lopez discovered defendant Vejar with his hands bound behind his back with speaker wire. Lopez arrested Vejar and searched him, finding a plastic bag which contained a “dark tar-like substance.” Lopez believed the substance was heroin.
According to the probation report, Vejar had been attempting to sell tools and car speaker equipment out of a shopping cart. He approached a man who believed the goods belonged to him. After the man informed Vejar that the goods were his, Vejar attempted to run away. The man tied up Vejar with the speaker wire and called the police.
Thomas McCleary, a senior criminalist at the Los Angeles County Sheriff’s Criminalistics Laboratory, tested the substance for narcotics. His results showed the substance contained 0.19 grams of heroin.
The trial court sentenced Vejar to two years for possession of heroin, which was doubled under the Three Strikes law. The trial court dismissed four prior prison term findings (§ 667.5), but imposed a fifth, which resulted in a total sentence of five years. Vejar contends the trial court erred by doubling his sentence.
CONTENTION
The trial court erred by not dismissing Vejar’s prior conviction under the “Three Strikes” law.
DISCUSSION
Trial court properly refused to dismiss the Three Strikes prior.
Vejar contends the trial court erred by refusing to dismiss, for Three Strikes purposes under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, his 1985 first degree burglary conviction. He contends the trial court did not consider all of the relevant factors, as outlined in People v. Williams (1998) 17 Cal.4th 148, in making its determination to reject his Romero motion. Vejar argues: “From the statement of the sentencing court, it is clear that the court failed to balance all of the factors which a proper exercise of discretion required it to balance. The court effectively relied solely upon the three-page length of appellant’s rap sheet, and the fact that it spanned 20 years. [¶] The court was in error. Appellant’s background, character, criminal history, the remoteness of his strike offense, the facts of the current offense and his history of addiction weigh in favor of appellant deserving a lesser punishment than that to which he was sentenced.”
We are not persuaded by Vejar’s argument.
1. Proceedings below.
The trial court had before it the probation report, which indicated that among Vejar’s prior adult convictions were the following: disorderly conduct (1970); burglary (1972); possession of dangerous drugs (1972); possession of a controlled substance (1974); petty theft (1974); burglary (1974); petty theft (1974) disorderly conduct (1975); possession of a controlled substance (1977); burglary (1977); drunk driving (1979); petty theft (1981); first degree burglary (1985); petty theft (1987); corporal injury on a spouse or cohabitant (1988); possession of a controlled substance (1989); felony theft (1989); possession of a controlled substance (1991); petty theft with a prior (1995); and, petty theft with a prior (1998). In addition, Vejar had committed parole violations in 1991, 2000 and 2002.
There were several letters submitted to the trial court by the defense, apparently addressing issues of Vejar’s character and future prospects. Defense counsel informed the trial court that a group called Friends From The Outside had done a preliminary screening and determined Vejar was “amenable and suitable for placement in a residential treatment program.”
When defense counsel argued, “[Y]ou look at his priors, we are not having an escalation of violence. We are not having an escalation in predatory conduct. We have a man who is more self-destructive than he represents a danger to society,” the trial court said, “No, I agree. We spent a lot of time together. He represented himself. He was always – [¶] . . . [¶] – polite. He’s been respectful. He didn’t play games at trial. He did the trial. I respected that.”
Defense counsel urged the trial court to dismiss the Three Strikes prior, impose a sentence in the range of six years, but suspend that sentence and put Vejar on probation with a requirement that he get treatment.
The trial court ultimately rejected this suggestion and denied Vejar’s Romero motion, saying: “I . . . looked at his three pages of the rap sheet from 1970, last conviction ‘98, but there’s a violation of parole 2002. That’s 32 years of history. [¶] I mean under Williams and Romero . . . I’d like to believe that Mr. Vejar’s prospects for the future are good, but I’m looking at the history and I don’t think I can say that with regard to the violations of parole and things like that.”
2. Discussion.
The factors to be considered in ruling on a Romero motion are set forth in People v. Williams, supra, 17 Cal.4th at p. 161: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, 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.”
“[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 (2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we 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 legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] 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.’ ” ’ [Citations.] 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.)
We find that Vejar’s overall record and his recidivism constituted a sufficiently compelling reason for the trial court to deny his Romero motion. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 [“the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career”]; see also People v. Carmony, supra 33 Cal.4th at p. 378 [“ ‘[w]here 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’ ”].)
Vejar argues the trial court erred by not considering the basically non-violent nature of his criminal background as evidenced by the probation report. However, the record shows the trial court gave consideration to this factor. In response to the argument that Vejar’s record did not hold a consistent theme of violence and predation, the trial court said: “I mean that’s why . . . it’s not a nine year case. It’s not an eight year case, not a seven year case.” This comment demonstrates the trial court used its discretion to significantly mitigate Vejar’s sentence, in consideration of his background, by imposing a five-year prison term when it could have imposed a nine-year term.
Vejar argues the court did not properly weigh his drug addiction as a mitigating factor, asserting that “his history of addiction weigh[ed] in favor of . . . a lesser punishment.” But Vejar’s drug history did not necessarily count in his favor. “Drug use or drug addiction at the time of an offense is an example of a disputable factor in mitigation. The sentencing court may find that drug use did not significantly affect the defendant’s capacity to exercise judgment or, in the case of an addiction of long standing, that the defendant was at fault for failing to take steps to break the addiction.” (In re Handa (1985) 166 Cal.App.3d 966, 973-974; see People v. Gaston (1999) 74 Cal.App.4th 310, 322 [“Although ‘drug use appears to be an underlying factor in [appellant’s] criminal behavior, and in fact may be the root cause thereof,’ the record is barren of any attempts by Gaston to ‘root out’ such destructive drug dependency. Accordingly, his drug dependency does not fall into the category of mitigating circumstances.”]; People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [“[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.”].)
Vejar argues the trial court should have considered both his age and the remoteness of his strike prior as factors in deciding his Romero motion. He points out he was 53 years’ old at the time of sentencing and that his strike prior was from 1985. He cites People v. Bishop (1997) 56 Cal.App.4th 1245, 1251, which said: “[T]he nature and timing of a defendant’s crimes may also operate as mitigation, such as in this case where the present crime is a petty theft and the prior violent offenses are remote. The length of the sentence to be imposed also presents an open-ended inquiry because, when considered in conjunction with the defendant’s age, it presents the trial court with an opportunity to evaluate factors such as how long the state maintains an interest in keeping the defendant as a public charge and after what period of incarceration he is no longer likely to offend again.”
Vejar’s reliance on Bishop is misplaced. First, given that the “burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary” (People v. Carmony, supra, 33 Cal.4th at p. 376), Bishop is of little help to Vejar because Bishop merely affirmed a trial court’s dismissal of strike priors. “A comparison of the cases is of little assistance to the defendant upon appeal. The Bishop holding does not establish that had the trial court denied Bishop’s motion such a decision would have been arbitrary or irrational. [Citation.] Rather, the holding only establishes that the trial court did not abuse its discretion in striking the two prior felony convictions. [Citation.] [¶] The Court of Appeal in Bishop indicated that it might have denied Bishop’s motion had it been the trial court.” (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.)
Second, “since Bishop predates Williams, it did not apply [its] facts to the applicable standard under Williams [citation]. Instead, the Bishop court merely suggested that the nature of the present crime (petty theft) and the remoteness of the defendant’s prior violent offenses may operate to mitigate his Three Strikes sentence. It never addressed the overall question whether the defendant should be deemed outside the scheme’s spirit.” (People v. Strong, supra, 87 Cal.App.4th at p. 342.)
Third, although the defendant in Bishop was slightly younger than Vejar, he received a 12-year term and apparently would have been older than Vejar when he completed his sentence. In any event, advanced age is not necessarily a mitigating factor. (See People v. Strong, supra, 87 Cal.App.4th at p. 332 [“middle age, considered alone, cannot take a defendant outside the spirit of the law; otherwise, the very factor that takes a defendant within the spirit of the law – a lengthy criminal career with at least one serious or violent felony – would have the inevitable consequence – age – that would purportedly take him outside it”].) And neither is the remoteness of the strike prior. (See People v. Gaston, supra, 74 Cal.App.4th at p. 321 [“the remoteness in time of the 1981 strike priors is not significant in light of Gaston’s continuous crime spree, which has substantially spanned his entire adult life”]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [“Where, as here, the defendant has led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating about a 20-year-old prior. Phrased otherwise, the defendant has not lead a ‘legally blameless life’ since the 1976 prior.”].)
In sum, we cannot agree the trial court abused its discretion when it denied Vejar’s Romero motion. (See People v. Carmony, supra, 33 Cal.4th at p. 377 [“trial court does not abuse its discretion [in denying Romero motion] unless its decision is so irrational or arbitrary that no reasonable person could agree with it”].)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY J., KITCHING J.