Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct. No. SWF024443. John M. Monterosso, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
Defendant and appellant Cassandra Marie Walton pled guilty to robbery. (Pen. Code, § 211.) She also admitted that she (1) personally used a firearm during the robbery (§ 12022.53, subd. (b)), (2) committed the crime in association with a gang with the intent to promote or further gang activity (§ 186.22, subd. (b)(1)(C)), and (3) had a prior serious felony conviction (§ 667, subd. (a)). Defendant contends the trial court abused its discretion by failing to strike the gang enhancement. We affirm.
Unless otherwise noted, further statutory references are to the Penal Code.
BACKGROUND
Defendant, along with other members of her gang, robbed a gas station. After pleading guilty, defendant was informed of the sentencing range, but was given “no promises” as to whether the trial court would strike or impose the gang enhancement.
Defendant had been a gang member since the age of 12. She voluntarily chose the gang life because she did not like everyone in her family being “upper class, white-collar.” She told the probation officer she could not be out of custody for more than 90 days without getting into trouble, and that she was asked to commit the robbery to help a fellow gang member get money for food and rent because it was known that if she was asked to do something she would do it.
At sentencing, the trial court stated: “As to the gang enhancement under [section] 186.22[, subdivision] (b), the Court’s discretion is not limitless as to whether to impose the ten years or not. I have to operate within certain parameters and certain guidelines. I must impose that ten years unless I find this is an unusual case or the interests of justice dictates that I strike the punishment for that enhancement. [¶] I thought about this long and hard, I reviewed this very closely, and I could find none that would allow me to do so in good conscience. [¶] [Defendant]—and she has been honest about the fact that she is a gang member, and I appreciate that. Even if she denied it, it’s obvious to all just based upon the tattoos that she has and her history, and I think what’s very telling to me is this: [¶] I appreciate your upbringing, I appreciate the support that you had, but I find that that works against you. I spent many years as a prosecutor handling gang cases, and one of the things I noticed [was] many of these kids who got involved in gangs did so because that was their outlet because they had no support from anybody else. They saw that as their only means to ratify themselves, to ratify their existence. It wasn’t an excuse, but at least there was some rationale that drove them to it. [¶] You, on the other hand, [defendant], willingly, knowingly, and proudly accepted membership into a gang. You sought that out. You didn’t have to do that. You wanted that. And you’ve been totally committed to the gang and criminal lifestyle since you made that choice, the choice that you easily could have avoided. [¶] I also don’t think that this is an unusual case where the interests of justice would allow me to strike the punishment because, as I read your statement to the probation officer, a lot of what you say seems to deflect blame to others. You seem to deflect blame to your co-defendant for making a wrong turn [that] allowed you to get caught. You seem to be disappointed at the small take that occurred during the robbery. So you say you are remorseful here, and I will accept that, but your comments to the probation officer along those lines seem to contradict that remorse. [¶] More importantly, you know, not only were you a direct participant, you seemed to be the leader of the pack. You were the one who threatened the—to kill the people in the store while holding a gun on them. That can’t be ignored, so that this is not an unusual case and the interests of justice doesn’t—does not allow me to strike that punishment. [¶] I do appreciate your desire to help others. I do. That is something you can do whether I sentence you to 28 years or 18 years. I hope that you do that still because there are far greater things that we strive for in life, because once you get out of prison, you have other things you have to—you have—you do have responsibilities still, and there’s still time for you. [¶] So, nonetheless, then, as to the allegation under [section] 186.22[, subdivision] (b), I will impose the prescribed term of ten years in prison consecutively served to Count 1.”
STANDARD OF REVIEW
A trial court’s decision not to strike a factual allegation, such as the gang enhancement or its additional punishment, is reviewed for abuse of discretion. (People v. Hernandez (2000) 22 Cal.4th 512, 523.) In reviewing for abuse of discretion, we may not substitute our judgment for that of the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 377.) Even if we might have ruled differently in the first instance, we will affirm the trial court’s ruling as long as the record shows the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (Id. at p. 378.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “ ‘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.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez).)
DISCUSSION
Defendant contends that her case was unusual because (1) even without the gang enhancement her sentence would be lengthy, (2) even without the gang enhancement her sentence would be a deterrent to gang crimes, (3) her crime was not sophisticated, and (4) her “life, character and prospects were not so un-redeeming as to require an additional ten year enhancement.” We find no abuse of discretion in the trial court’s decision not to strike the gang enhancement.
Subdivision (g) of section 186.22 permits a trial court to strike an enhancement under section 186.22 “in an unusual case where the interests of justice would be best served.” There is a strong presumption that a trial court properly exercises its discretion in refusing to deviate from a sentencing norm. (See In re Large (2007) 41 Cal.4th 538, 551.) If the statutory limitations on striking gang enhancements are to have any substantial scope and effect, “unusual case” and “interests of justice” must be narrowly construed. (See People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229 [requiring narrow construction of similar language providing limited exception to prohibition against probation for certain crimes].)
The trial court’s statement when it rendered its decision indicates it exercised its discretion in a considered manner. While defendant may assign greater weight to what she considers factors that made her case unusual, this is not sufficient to meet the heavy burden necessary to overcome the presumption that the trial court appropriately exercised its discretion to achieve legitimate sentencing objectives. (See Alvarez, supra, 14 Cal.4th at pp. 977-978.) Because exceptions for unusual cases are to be narrowly construed, and because the record does not indicate that the trial court misunderstood its discretion or failed to weigh the analytical factors before it, we hold that the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.