Opinion
A159293
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANTHONY VENTURA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-730846-1)
Robert Anthony Ventura pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count one) and guilty to vandalism causing over $400 in damage (§ 594, subd. (a); count two). He admitted he had two prior strike convictions (§§ 667, subd. (d), 1170.12, subd. (b)) but invited the trial court to dismiss the prior strikes pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Ventura appeals, contending the court abused its discretion in denying his request. We affirm.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
A.
In August 2019, Ventura threw a rock through the passenger-side window of his ex-girlfriend's car. Ventura's ex-girlfriend was sitting in the parked car with a friend, waiting to pick up her children from school. The friend was in the passenger seat, with the window rolled up. The rock shattered the glass and hit the friend in the chest and arms. When the police arrived, the friend was crying and covered in dried blood. She had abrasions on her wrist, arm, and knee, complained of chest pain, and was transported to the hospital.
Ventura later asserted he did not know the car was occupied because the windows were tinted and the car was parked in the shade. He stated he was trying to break into the vehicle to retrieve his methamphetamine stash.
B.
After pleading to the assault and vandalism charges and admitting the prior strike allegations, Ventura urged the trial court to exercise its discretion to dismiss the prior strikes.
He argued that although he had committed a number of offenses when he was younger, his prior strike offenses did not involve actual violence. His 2002 robbery conviction involved brandishing a replica air gun and taking $200 from a gas station, and his 2007 threat conviction was based on leaving a threatening voicemail message. With respect to the current assault offense, he was "wholly unaware" that the car was occupied when he threw the rock. He "misperceived the situation" because he was on methamphetamine at the time and was trying to retrieve some methamphetamine that he thought belonged to him.
Moreover, since his last release from prison he had "turned his life around" by staying sober and employed, and had not committed any crimes for a nearly five-year period. His recent relapse into substance abuse occurred after he lost his home in the 2019 Guerneville floods. His relapse led to "poor choices," including the current offenses. However, he was taking an eight-week correspondence course on anger management and had been accepted into a residential substance abuse treatment program.
In a presentence report, the probation officer detailed Ventura's criminal history. Ventura's adult record included 12 prior convictions spanning from 1992 to 2007, including six felonies (receipt of stolen property, grand theft, burglary, two robberies, and making a criminal threat) and six misdemeanors (petty theft, resisting a peace officer, making an obscene or threatening telephone call, battery, falsely representing oneself to a peace officer, and trespass), as well as parole and probation violations. One robbery conviction involved demanding money after displaying an object that looked like a handgun; the other involved brandishing a replica of a semi-automatic pistol accompanied by a demand to "[g]ive me all your money, motherfucker." Ventura's criminal threat conviction involved at least nine threatening voicemail messages left for an ex-girlfriend, including one in which Ventura threatened, "You want to see psycho bitch. I'm going to fucking kill you." He also followed the ex-girlfriend, called her at all hours, and became angry when she refused to meet him. Based on Ventura's history, the probation officer observed, "[t]he defendant has engaged in violent conduct which indicates a serious danger to society."
The presentence report also provided information concerning Ventura's history of substance abuse and treatment. Ventura struggled with alcohol, marijuana, and methamphetamine from a young age. However, he participated in various treatment programs and meetings, and completed a six-month residential treatment program in 2006 as well as a 90-day treatment program in 2014.
According to the presentence report, from his release from prison in 2014 until February 2019, Ventura was employed in the wine industry as a housekeeper, server, and dishwasher, as well as in production and manufacturing. After the flood, he found full-time employment through a temporary staffing agency, but at the time of the offense, he was working intermittently doing "labor clean up."
The presentence report noted that Ventura expressed remorse for the assault and vandalism offenses and recognized his need for further substance abuse treatment.
The prosecutor opposed Ventura's request, contending that the Three Strikes sentencing scheme was "designed specifically for people like Mr. Ventura who has lived a life of criminality from a very young age." He argued that the fires and floods should not be viewed as a mitigating factor because they had impacted many people in Sonoma County, but others had not turned to substance abuse or crime as a result. He also disputed Ventura's account of the assault and argued that it was implausible that he thought the car was unoccupied when the two women were waiting at a school bus stop.
The trial court declined the invitation to dismiss Ventura's prior strikes. The court began by stating, "I've had a lot of time to sit here with the documentation on your case and review it repeatedly." The court acknowledged that Ventura's counsel "pointed out how you were doing very well and then you were tremendously impacted by the fires and then the floods, or the community was, and you were specifically impacted by the floods." However, "a great many people in this community were [impacted], sir . . . . I hear what you are saying as far as that being an explanation for how you began to spiral, but I certainly don't feel that that is any kind of an explanation for the resulting criminality."
The court further considered "the criteria to consider eligibility for probation, sentencing factors in aggravation and mitigation in order to determine how this Court feels about this particular case and all the attending circumstances." The court continued:
Mr. Ventura, just to be frank with you, sir, your criminal history is atrocious. You have previously been sentenced to 25 years to life, and you stand now back before the Court with a new felony conviction for a crime of violence, and I know I read somewhere in the report that this case or your priors don't all constitute crimes of violence because no one was actually hurt. I take issue with that description of a crime of violence. No one has to be hurt in order for a crime of violence to have occurred.
You're asking too much, sir, and I simply can't find, given the number of prior felony convictions I see here, the fact that at least three of them are prior strikes, two of which are alleged here, and the current offense is a [section] 245(a)(4) in which the victim was bloodied. I simply can't make the finding that you fall outside the spirit of the three strikes law, so I'm going to decline to grant the Romero and strike the strikes.
The trial court next stated, prior to pronouncing Ventura's sentence: "Considering all the factors I previously described for the record, I went through each of them with the guidance of [defense counsel's] brief, and found that there really only are a couple of factors in mitigation. One of which [defense counsel] argued is the mental or physical condition, that being your drug addition [sic], affecting your culpability for this particular offense, and looking at your history, I do see that you've had opportunity for treatment many times, so I'm not particularly persuaded by that as a factor in mitigation. I do hear that you are making positive steps now while you're here."
For count one, the trial court sentenced Ventura to the mid-term of three years in prison, doubled to six years as a result of the prior strike convictions. For count two, the court imposed a concurrent sentence, selecting the mid-term of two years in prison, which was doubled to four years as a result of the prior strike convictions.
DISCUSSION
A.
" '[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.] To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." ' " (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony), italics added.)
Romero held that pursuant to section 1385, subdivision (a), "a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice.' " (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) In ruling on an invitation to dismiss a prior strike allegation, the trial court 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." (Id., at p. 161.)
We review the decision not to dismiss a strike for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) A trial court does not abuse its discretion unless it was unaware of its discretion, it based its ruling on impermissible reasons, or "its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377; see id. 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, [the reviewing court] shall affirm the trial court's ruling, even if [it] might have ruled differently in the first instance.' " (Id. at p. 378.)
B.
Ventura contends that the trial court abused its discretion because it failed to consider all of the relevant factors and instead rendered its decision solely on the basis of his criminal record. Because the record of the court's reasons does not support this contention, we affirm.
The trial court expressly weighed multiple factors before reaching its decision. The court considered Ventura's arguments that he had been "doing very well" and that he was "specifically impacted by the floods." With respect to the floods, the court stated: "I hear what you are saying as far as that being an explanation for how you began to spiral, but I certainly don't feel that that is any kind of an explanation for the resulting criminality." In addition, the court was aware that Ventura had sought substance abuse treatment, stating, "I do see that you've had opportunity for treatment many times, so I'm not particularly persuaded by that as a factor in mitigation." Further, the court considered the circumstances of the current offenses - noting that the assault left the victim "bloodied" - and considered and rejected Ventura's argument that his prior strikes were not violent in character. The court also reasoned that Ventura's history reflected at least three prior strikes.
Although Ventura argues that the court failed to consider whether he is a danger to society, the court's discussion of the circumstances of the current offenses and his prior strikes reflects an implicit conclusion that he posed a danger. Such a conclusion was supported by the record, as the present case involved an assault by force likely to produce great bodily injury (§ 245, subd. (a)(4)), he has a prior battery conviction (§ 242), and his robbery and threat convictions involved threats of violence. While Ventura contends an assault by throwing a rock through a car window "is neither serious nor violent," a conclusion to the contrary is not unreasonable, particularly given that the victim was sent to the hospital as a result of her injuries. (Cf. Williams, supra, 17 Cal.4th at p. 165 [a "dangerous offense which often poses a threat of serious injury . . . may appropriately be considered in deciding whether punishment under the provisions of the Three Strikes law is warranted regardless of whether death or injury actually occurred"].)
Ventura also asserts that the trial court failed to consider the maximum, non-strike sentence that it could have imposed and suggests that a six-year sentence for throwing a rock through a car window is unwarranted. However, in pronouncing Ventura's sentence, the court clearly concluded that the maximum, non-strike sentence would have been inadequate. Further, "in evaluating the severity of a three strikes sentence relative to the gravity of the charge, the court must remain cognizant that the present violation of law only triggers the mandated penalty, which ultimately is the consequence of both that offense and the defendant's recidivist status." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979-980.)
As the record reflects, the court balanced a number of considerations but determined that Ventura's criminal history, the character of his prior convictions, and the circumstances surrounding the current offenses outweighed the other factors advanced by Ventura. None of the considerations relied upon by the court were impermissible or unsupported by the record. While Ventura may disagree with the trial court's balancing of these factors, that does not render its ruling an abuse of discretion. (See Carmony, supra, 33 Cal.4th at p. 379 [appellate court erred in finding an abuse of discretion where it "simply disagreed with the [trial] court's weighing of the[] factors"].)
DISPOSITION
The judgment is affirmed.
/s/_________
BURNS, J. We concur: /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.