Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. F07903046, Wayne R. Ellison, Judge.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Hill, Acting P.J., Kane, J. and Poochigian, J.
PROCEEDINGS
Appellant, Raymond Whitall, was found guilty after a jury trial of second degree burglary (Pen. Code, § 459, count one), attempted extortion (§ 524, count two), and impersonating a public officer, investigator, or inspector (§ 146a, subd. (b), count three). In a bifurcated proceeding, appellant waived his right to a jury trial and admitted four prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (a)-(i) & 1170.12, subds. (a)-(d)).
Unless otherwise noted, all statutory references are to the Penal Code.
On December 2, 2008, the trial court denied appellant’s request pursuant to section 1385 to strike one or more of his prior serious felony convictions. The court sentenced appellant to prison for 25 years to life on count one. It imposed the same sentence on counts two and three, but stayed sentence on those counts pursuant to section 654. The court imposed a restitution fine and awarded applicable custody credits.
Appellant contends the trial court abused its sentencing discretion in failing to dismiss one or more of his prior serious felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTS
Current Offense
Adriana and Humberto Gomez (collectively, the Gomezes) purchased the Zamora Carnitas Mexican Restaurant from Jose Gonzales in January 2007. Gonzales continued to visit the restaurant after selling it and was there on April 14, 2007. At 5:00 p.m., appellant entered the restaurant with a badge and introduced himself as a Cal/OSHA inspector.
California Division of Occupational Safety and Health (Cal/OSHA).
Appellant said there had been a complaint from an employee and he was conducting a safety inspection. Adriana expressed surprise because it was a Saturday. Appellant explained that inspectors conduct inspections on Saturdays. Adriana was again surprised because she did not have any full-time employees, only one employee who worked once or twice a week. Adriana was unaware of any complaints.
Appellant had a clipboard and a checklist and announced he was inspecting the entire restaurant, including an outside storage room. An inspector from the labor department had been at the restaurant earlier that week and gave the Gomezes a pamphlet of requirements and permits from other departments. Adriana showed appellant information on the pamphlet indicating that their business was exempted from Cal/OSHA because they had fewer than 25 employees. Appellant said the other inspector did not know what she was talking about.
Appellant told Adriana she was in violation for not having exit signs over doors and for having cleaning agents like bleach and detergent without a material safety data sheet. Adriana said the fire department had just inspected the restaurant and said nothing to her about the exit signs. Appellant conducted his inspection for about four hours. Appellant told Adriana the fines for violations totaled $23,000. They would have to go to court on Monday and a judge would charge her $23,000. Appellant said that for every day they stayed open, they would have to pay an additional $1,600 in fines.
When Adriana became upset, appellant told her not to cry. He performed his routine again, this time not checking off any violations. Appellant told Adriana everything would be alright now and she could give the new report to the judge. Appellant said he could come back during the week as a counselor and assist the Gomezes with all the paperwork they would need and there would be just a minimal fine.
Adriana thought appellant was trying to ask her for money. After an hour, appellant wrote $2,000 on a piece of paper and said if the Gomezes gave him that amount of money, things would work out. Adriana told appellant she did not have that much money. Appellant reduced the amount to $500, an amount Adriana explained she also did not have. Appellant then offered to accept $100 that day and $100 the next day. Adriana refused. Appellant said he would come back Monday, do the paperwork, help her fix the violations because his employer did not prohibit him from counseling on the side, and he would accept $100.
Adriana viewed appellant’s offer as a bribe. Adriana suspected that appellant was either a crooked inspector, or a fake. Adriana noticed that there was no government car outside. Usually inspectors have metal clipboards, appellant’s was orange plastic and it had a torn piece of paper on it with a basketball. Appellant’s belt was torn, his shirt was stained, and his pants were worn out. His appearance was unprofessional. Adriana could smell alcohol on appellant’s breath. Appellant, however, was not drunk.
Gonzales had owned the restaurant for two and a half years before selling it to the Gomezes. Gonzales had never dealt with anyone from Cal/OSHA. When Adriana began to cry, Gonzales told appellant that he had never seen anyone from Cal/OSHA do any inspection or the type of inspection appellant had performed. Appellant said he was with a new department started in the 1990’s. After the appellant began asking for money, Gonzales realized he was not a true inspector. Gonzales had never seen anything like this before.
The police were contacted. An officer with the Fresno Police Department entered the kitchen while Adriana was talking to appellant. Officer Victor Miranda was dispatched to the restaurant at approximately 10:00 p.m.
When Miranda asked appellant if he worked with Cal/OSHA, appellant replied he did and he was conducting an inspection. Appellant was wearing an identification card on his shirt that said he was from Cal/OSHA. When appellant handed the card to Miranda, however, he appeared very nervous. Appellant said his supervisor was Pamela Shafer and gave Miranda a 1-800 number that appellant said belonged to his supervisor. Miranda called the number, but it was an answering service for Cal/OSHA. He could not contact Pamela Shafer.
Jerry Walker, a district manager for Cal/OSHA, testified that appellant was not an inspector with Cal/OSHA. The identification badge appellant used was identical to those actually used by Cal/OSHA employees except that appellant’s card did not have his photograph on the card. Brian Daudendistel, a senior special investigator with Cal/OSHA, testified that appellant was not a legitimate employee of Cal/OSHA.
Appellant’s Romero Request
Appellant had a lengthy criminal history. According to the probation report, as a juvenile, appellant had sustained petitions for burglary and assault. As an adult, appellant was convicted of second degree murder (§ 187, subd. (a)) with a gun use enhancement (§ 12022.5) in San Diego in 1979. Appellant was paroled in December 1990, but violated parole in October 1991 and ordered to finish his prison term.
Appellant was convicted in Monterey County for felonies in 1992 for insufficient funds (§ 476a, subd. (a)), in 1993 for the sale or purchase of securities by means of false statements (Corp. Code, § 25401), and in 1999 for theft or taking of a vehicle (Veh. Code, § 10851, subd. (a)). Between 1992 and 1998, appellant had four parole violations. Appellant was convicted in 2004 in Monterey County of the following felonies: two counts of oral copulation (§ 288a, subd. (c)(2)), two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), spousal abuse (§ 273.5, subd. (a)), false imprisonment (§ 236), and dissuading a witness (§ 136.1, subd. (c)(1)). Appellant’s probation was revoked in November 2006 and a bench warrant issued for his arrest.
The probation officer’s report inaccurately refers to appellant’s violation for securities fraud as being a violation of the Penal Code.
The probation officer noted five aggravating factors and no mitigating factors. The probation officer noted appellant had absconded from probation in Monterey County and recommended appellant receive a sentence of 25 years to life.
Defense counsel filed a request that the trial court exercise its discretion pursuant to Romero. Appellant argued that there were mitigating circumstances to his 1979 conviction and that his offenses in 2004 were part of an aberrant pattern of behavior over 10 days. Appellant’s counsel attached a letter from attorney Philip Walden signed under penalty of perjury. Walden explained he was the deputy district attorney in San Diego who prosecuted appellant for second degree murder in 1979.
Walden explained that appellant was part of a citizen’s group patrolling highways looking for drunk drivers. The group would contact law enforcement with citizen band radios. Appellant and another person stopped a San Diego County Probation Officer and attempted to handcuff him at gunpoint. The victim, believing he would at least be robbed, resisted appellant. In the struggle, the revolver was discharged. The bullet struck and killed the probation officer. Walden believed appellant’s counsel did a poor job in appellant’s defense. Walden found his role in the matter troubling, believing appellant’s conduct deserved at most, a conviction for involuntary manslaughter. Walden testified at appellant’s parole hearing, leading in part to appellant’s release on parole.
Defense counsel argued these details during the sentencing hearing. The trial court noted appellant had a long criminal history. The court noted that Walden’s letter was a highly unusual circumstance. The court explained it was not completely discounting the letter, but noted that an appellate court could have considered any merits to appellant’s case by appeal or writ of habeas corpus. The court noted nothing had been done to overturn appellant’s murder conviction. The court indicated it would not adopt Walden’s view that appellant’s conviction in 1979 should be regarded as an involuntary manslaughter conviction.
The court further viewed as remarkable appellant’s parole for the 1979 murder. The court believed appellant’s use of a firearm and the murdering of a probation officer entitled appellant to spend the rest of his life in prison. The court found no circumstance that would justify the striking of any serious felony conviction in the interests of justice and denied appellant’s request for it to exercise its discretion pursuant to Romero.
SECTION 1385 DISCRETION
Appellant contends the trial court abused its discretion in failing to strike one of his prior serious felony convictions pursuant to section 1385 and Romero, supra, 13 Cal.4th 497.
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) Appellant bears the burden of establishing that the trial court’s decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (Ibid.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony I).)
The court understood its authority to strike one or more prior serious felony conviction allegations. The court was acting well within its sentencing discretion in rejecting former prosecutor Walden’s assertion that appellant’s 1979 offense constituted no more than involuntary manslaughter. Appellant’s conviction for second degree murder was never overturned on appeal.
Furthermore, appellant squandered one of many opportunities for clemency when placed on parole in 1990 for his 1979 murder conviction and violated parole less than a year after his release. Appellant had three convictions in the 1990’s for insufficient funds, securities fraud, and taking or theft of an automobile. During this decade, appellant violated parole four more times. In 2005, appellant was convicted of six felonies related to sex offenses, assault, and dissuading a witness. Despite being placed on probation for this recent crime spree, appellant absconded until he was arrested for the instant action.
Appellant is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. “Where 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.” (Myers, supra, 69 Cal.App.4th at p. 310, quoted with approval in Carmony I, supra, 33 Cal.4th at p. 378.)
Appellant has a long criminal history and many failed attempts at parole and probation. The record in this case affirmatively shows that the court understood its discretionary authority and that it weighed all of the competing facts to reach a reasoned and reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one or more of the strike priors. In view of these facts and circumstances, appellant has failed to show abuse of discretion. (See Carmony I, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
DISPOSITION
The judgment is affirmed.