Opinion
E068223
06-05-2018
THE PEOPLE, Plaintiff and Respondent, v. VICTOR WILLIAMS, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR042667) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, Victor Williams, twice broke into his estranged wife's home in the dark morning hours of August 18, 2016, and threatened her boyfriend (K.C.) in the presence of her children. Defendant was charged with burglary (Pen. Code, § 459; count 1), assault with a deadly weapon (§ 245, subd. (a)(1)); count 2) and criminal threats (§ 422, subd. (a); count 3). Because of a prior 2001 burglary offense, it was further alleged defendant suffered a prior conviction of a serious or violent felony under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction under subdivision (a)(1) of section 667. The jury acquitted defendant of burglary but found him guilty of assault with a deadly weapon and criminal threats. The jury also found true defendant's prior offense.
Unless otherwise noted, all statutory references are to the Penal Code.
At sentencing, defendant made a motion to reduce the counts to misdemeanors under subdivision (b) of section 17. Defendant requested in the alternative that the trial court dismiss his prior strike allegation pursuant to section 1385 and Romero. The court denied defendant's motion to reduce his counts to misdemeanors and his alternative Romero motion. The court instead imposed the low term of two years for the assault with a deadly weapon and doubled it to four years due to the prior strike (§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)) and imposed the consecutive five-year enhancement under subdivision (a) of section 667. The court also imposed and stayed a one-year four-month sentence for the criminal threats under section 654. Additionally, the court awarded defendant total credits of 488 days, consisting of 244 days in actual custody and 244 days of conduct credits. (§ 4019.) The court sentenced defendant to a total of nine years in state prison.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
On appeal, defendant seeks to have his conviction vacated and his case remanded with instructions directing the trial court to dismiss his prior strike and resentence him. Defendant contends the trial court abused its discretion in denying his Romero motion. Defendant also contends that, given the nature of his offenses, the nine-year sentence is a grossly disproportionate punishment that violates his constitutional rights. Finally, defendant contends the trial court erred by not reducing his felonies to misdemeanors. We reject defendant's contentions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Assault with a Deadly Weapon and Criminal Threats of August 18, 2016
When defendant committed his current offenses in the dark morning hours of August 18, 2016, he was subject to a no negative contact restraining order issued to protect his estranged wife (the victim). On August 17, 2016, between 8:00 and 9:00 p.m., defendant spoke with the victim and K.C. in the front yard outside the victim's home and told them he did not want K.C. staying there. Defendant left the victim's home about 9:00 p.m., after the victim refused to have K.C. leave.
Around 2:00 a.m., on August 18, 2016, defendant returned, climbed a tree, and entered the home through the second story window of the master bedroom where the victim was asleep with K.C. and her two youngest children. As he entered, defendant caused the air conditioner in the master bedroom window to fall onto the floor with a loud bang. The noise awoke the victim, K.C., and all her children in the home, one of whom immediately ran into the master bedroom with a small wooden bat. K.C. jumped onto the bed near the headboard as defendant initially rushed him and then moved to the foot of the bed, blocking K.C.'s path out of the master bedroom. When defendant rushed K.C., both the victim and the child with the wooden bat told defendant to stop because he was frightening the young children. Defendant ignored them and ordered K.C. to leave, threatening K.C. with the wooden bat he snatched from the child who had run into the master bedroom. K.C. asked if he could get his shoes before leaving, but defendant refused to let K.C. have his shoes. As defendant, the victim, and her child were arguing, K.C. took the opportunity to jump over the bed and run out of the master bedroom. Defendant charged at K.C. with the bat, and K.C. fled the home. When the victim once more asked defendant to stop because he was "scaring the kids," defendant twice told her, "I'm not going to hurt anyone," and handed her the bat. Defendant had already left the victim's home when K.C. came back with sheriff's deputies.
After the deputies had left, and while it was still early morning, defendant returned to the victim's home, but this time he entered by kicking open the locked front door. Defendant was holding a large stick and was in attack mode. Defendant again menaced K.C. and told him to get away from the victim and her children. Defendant left five to 10 minutes later, after K.C. asked the victim to call 911.
During the two early morning incidents, defendant inflicted no physical injuries on the victim, K.C., or her children. The victim and her children were nonetheless scared and "flipping out on each other" because of the early morning events. K.C. was also visibly upset, as he was sweating and out of breath when deputies first encountered him.
B. Sentencing Hearing
At sentencing, the trial court informed the parties it had "received, read and considered" defendant's probation report, as well as defendant's motion to reduce his felony counts to misdemeanors under section 17, subdivision (b), and his alternative Romero motion. The court entertained oral argument from both sides, along with a statement from defendant's estranged wife, who testified to defendant's character, business, ongoing struggle with substance abuse, and his importance to their children. The court then denied defendant's motion to reduce his counts to misdemeanors and his alternative Romero motion, noting that its findings were stated on the record.
C. Defendant's Criminal History
Defendant is 36 years old. In 2001, he was convicted of second degree robbery (§ 211) for robbing a convenience store with a handgun. He was originally granted probation for that crime. He was nonetheless sentenced to three years in prison after being convicted in 2002 of taking and driving a vehicle without the owner's consent. (Veh. Code, § 10851, subd. (a).) In June 2014, defendant pled no contest to inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)) after having shoved and choked the victim. The trial court struck the 2001 prior strike, granted defendant probation, and released him with 45 days of time served. In November 2014, defendant's probation was revoked and reinstated with a 365-day county jail sentence as a result of arguing with the victim, who was issued the no negative contact restraining order. Defendant was then arrested in July 2015 for robbery (Pen. Code, § 211) and assault (Pen. Code, § 240) while under the influence of PCP. He had forcibly taken a walking stick, chased people around, and was subdued only by means of a beanbag shotgun round. Defendant again violated his probation and was sentenced to three years in state prison. Defendant committed his current offenses while on postrelease community supervision.
III
DISCUSSION
Defendant contends the trial court committed three sentencing errors: (1) the trial court abused its discretion in denying his Romero motion; (2) violated his constitutional rights by imposing a nine-year sentence that was a grossly disproportionate punishment for his offenses; and (3) erred by not reducing his felonies to misdemeanors. In support of his first and principal contention, defendant argues the trial court denied his Romero motion based on three interrelated errors in the exercise of its discretion. First, he argues the court impermissibly focused on defendant's 2014 conviction for inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) to the exclusion of other mitigating factors. Second, the court failed to distinguish the facts of defendant's current offenses from those of his prior offenses and mischaracterized his current offenses as repeat offenses. Third, the court "ignored the extenuating circumstances giving rise to the present offense" and did not consider defendant's substance abuse problem as a mitigating factor.
We review defendant's contentions and argument points in the order they were asserted. We reject his contentions and argument points and affirm the judgment.
A. The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Romero Motion
1. Standard of Review
In reviewing the exercise of discretion in granting or denying a motion to dismiss a prior conviction under section 1385, we are guided by the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); People v. Superior Court Romero, supra, 13 Cal.4th at p. 504.) We must determine "whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162.) We presume that a court acts properly whenever it sentences a defendant in accordance with the Three Strikes law. (Carmony, supra, at p. 378.) Only in limited circumstances will a trial court abuse its discretion in failing to strike a prior felony conviction allegation under the Three Strikes law. (Ibid.) The limited circumstances include the trial court not being aware of its discretion to dismiss or considering impermissible factors, such as race or national origin. (Ibid.; People v. Gillispie (1997) 60 Cal.App.4th 429, 434.)
"On appeal, two additional precepts operate: 'The 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.' [Citation.] Concomitantly, '[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."'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) "Where the record is silent [citation], or '[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.'" (Carmony, supra, 33 Cal.4th at p. 378.) "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 p. 377.)
2. The Trial Court Balanced Relevant Facts and Reached an Impartial Decision in Conformity with the Spirit of the Law
A trial court must consider (1) the nature and circumstances of a defendant's current offenses and prior serious or violent felony convictions, as well as (2) the particulars of defendant's background, character, and prospects, to determine whether defendant should be deemed outside the Three Strikes law's spirit and should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Carmony, supra, 33 Cal.4th at p. 377; People v. Williams, supra, 17 Cal.4th at p. 162.) In this case, the record shows that the trial court did impartially consider the nature and circumstances of defendant's current and prior offenses along with defendant's background, character, and prospects when it denied his Romero motion.
The trial court considered the nature and circumstances of the present and prior felony convictions when it denied defendant's motion to reduce the counts to misdemeanors on the basis of his "conduct in the case and the prior record." The court stated "[t]he biggest reason for that, [is] not only just the host of offenses, but [that defendant] was given the opportunity in a previous case from 2014 where he was charged with a spousal abuse and a strike, he got the strike stricken in that case and probation granted."
The trial court also heard testimony from defendant's estranged wife concerning defendant's background, character, and prospects. Defendant's estranged wife told the court that she had been married to defendant for 11 years and that in the first eight of those years "there was no physical abuse, there was no mental abuse, no emotional abuse, nothing." She acknowledged defendant's struggle with substance abuse, but also highlighted his good character while sober, his successful business, and his integral role in the lives of their children. The court nonetheless responded that "it was [defendant's] conduct that put not only you, but your family, in danger in this case. He violated a court order and parole when he broke into your house that night. And his previous conduct has a history of violations of probation and parole. So when you say [defendant] needs help, he's had the opportunity over the years to be in a situation of probation and parole where he could take advantage of help and hasn't done it."
The trial court's statements establish that the court weighed defendant's background, character, and prospects against both his current offenses and his previous conduct. The court's statements also establish that the court was not influenced by emotional appeal but balanced the relevant facts impartially. Moreover, those statements indicate that the court regarded defendant as being within the spirit of the Three Strikes law because of his recidivism and that the court's legitimate sentencing objective was to address defendant's recidivism. Therefore, we conclude that the record demonstrates the trial court balanced relevant facts and reached an impartial decision on defendant's Romero motion in conformity with the spirit of the law. (Carmony, supra, 33 Cal.4th at p. 378.)
3. Trial Court Did Not Exclusively Focus on the 2014 Conviction
Defendant argues that the trial court impermissibly focused on defendant's 2014 conviction for inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)) to the exclusion of other mitigating factors. We disagree.
The record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. While the court emphasized defendant's 2014 conviction, the court expressly denied defendant's Romero motion because of defendant's "host of offenses" and his recidivism as well. The court also accounted for defendant's character, his business, his ongoing struggle with substance abuse, and his importance to their children, as evidenced by the court's response to the victim's testimony on these points. Consequently, the record shows the court did not focus on defendant's 2014 prior conviction to the exclusion of all other sentencing factors.
Defendant also argues that the court's emphasis on his 2014 prior conviction amounts to reversible error as a matter of law. Defendant presumably intends us to infer from Carmony that it would be reversible error for a court not to strike a prior conviction by focusing on a single factor to the exclusion of others. However, Carmony stands for the proposition that it is reversible error for a court to strike a prior conviction by focusing on a single factor to the exclusion of others. (Carmony, supra, 33 Cal.4th at p. 379.) Carmony is thus inapposite, since the trial court here declined to strike defendant's prior conviction. The trial court also did not focus on a single factor to the exclusion of others, which makes Carmony doubly inapplicable.
Defendant additionally cites People v. Garcia (1999) 20 Cal.4th 490 for the Supreme Court's warning against overemphasizing a defendant's past crimes. But that warning concerned overemphasizing a defendant's recidivist status under subdivision (b) of section 17. (Garcia, supra, at p. 501.) The caution is inapplicable to the trial court's exercise of discretion on defendant's Romero motion. It is also inapplicable to defendant's sentencing in general, since the record shows the court did not overemphasize defendant's recidivist status.
Therefore, we conclude the trial court did not impermissibly focus on defendant's 2014 conviction to the exclusion of other mitigating factors and properly considered the appropriate factors in reaching its decision.
4. Trial Court Did Not Mischaracterize Defendant's Current Offenses
Defendant argues that the trial court failed to factually distinguish his current offenses from his 2014 offense for corporal injury on a spouse or cohabitant, and it thus mischaracterized his current offenses as repeats of his 2014 offense. While the record does not detail the circumstances of defendant's 2014 offense, defendant maintains his current offenses were unlike his prior offense with respect to their extenuating circumstances and defendant's display of restraint. Defendant asserts his current offenses were provoked by the shock of finding the victim with K.C. He further asserts his current offenses did not result in physical injuries to anyone involved. According to defendant, these are differences the trial court should have considered before it found defendant's current offenses to be part of a continuing history of violence that placed defendant well within the spirit of the Three Strikes law.
We disagree. These differences do not materially distinguish defendant's current and prior offenses for purposes of determining whether defendant has a continuing history of domestic violence. Defendant was subject to a no negative contact restraining order in relation to the victim. Defendant nevertheless engaged in violent and dangerous conduct when he kicked down the victim's locked front door and when he wielded first a small bat and then a big stick to threaten K.C. That defendant climbed a tree and crept into the victim's home through a second-story window at 2:00 a.m. is also not indicative of restraint. It indicates defendant planned a surprise encounter that could have turned violent. Such conduct puts defendant well within the spirit of the Three Strikes law and, thus, the trial court was not irrational or arbitrary when it chose not to distinguish defendant's current and prior offenses.
Therefore, we conclude the trial court did not mischaracterize defendant's current offenses.
5. Trial Court Did Not Fail to Consider Extenuating Factors
Defendant argues the trial court erred in denying his Romero motion by ignoring "the extenuating circumstances giving rise to the present offense" and his substance abuse. Defendant relies on People v. Garcia, supra, 20 Cal.4th 490 for the proposition that his substance abuse could have been considered a mitigating factor.
However, the trial court did account for extenuating factors in its choice of sentencing terms. Contrary to the probation report's four-year recommendation, the court found the low term to be appropriate given the provocative circumstances of defendant's current offenses and the fact that defendant did not physically injure anyone. Thus, we may infer the court found the extenuating factors sufficient to impose the low term but insufficient to strike the prior strike.
As for Garcia, substance abuse was properly an extenuating factor in that case because the defendant's prior convictions arose "from a single period of aberrant behavior . . . related to drug addiction" and did not involve actual violence. (People v. Garcia, supra, 20 Cal.4th at p. 503.) The same cannot be said for defendant in this case.
In sum, the record shows that the trial court balanced relevant facts and reached an impartial sentencing decision in conformity with the spirit of the law. The record also shows the trial court did not impermissibly focus on defendant's 2014 conviction to the exclusion of other mitigating factors, it did not mischaracterize defendant's current offenses, and it did consider extenuating factors. Therefore, we conclude that the trial court was not irrational or arbitrary in its sentencing decision and thus did not abuse its discretion in denying defendant's Romero motion.
B. Defendant's Nine-year Sentence Did Not Violate His Constitutional Rights
Defendant contends that the nine years imposed by the trial court for an assault that did not result in physical injuries violates his constitutional right to a sentence proportionate to his offenses, under the Eighth and Fourteenth Amendments and article 1, section 17, of the California Constitution. Defendant maintains he would have received a two-year sentence if the trial court had granted his Romero motion. We reject both contentions.
Considering first the possibility of a two-year sentence, we agree with the People that a trial court must impose the enhancement when the conviction of a crime qualifying for a five-year enhancement under subdivision (a)(1) of section 667 is found true. (People v. Jordan (2006) 141 Cal.App.4th 309, 319.) Because his prior serious felony conviction was found true by the jury, defendant had to receive the five-year enhancement on top of the two-year low term for assault with a deadly weapon. (§ 245, subd. (a)(1).) Defendant is mistaken and concedes his error in his reply brief.
Whether defendant's sentence amounts to cruel or unusual punishment is a question of law that we review de novo. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1474.) We "must examine the circumstances of the offense, including motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts." (People v. Lucero (2000) 23 Cal.4th 692, 739.) We "must also consider the personal characteristics of the defendant, including his or her age, prior criminality, and mental capabilities." (Ibid.) "If the penalty imposed is 'grossly disproportionate to the defendant's individual culpability' [citation], so that the punishment '"'shocks the conscience and offends fundamental notions of human dignity'"' [citation], [we] must invalidate the sentence as unconstitutional." (Id. at pp. 739-740.)
Regardless of whether defendant caused anyone physical injuries, we conclude from the record that both the circumstances of his current offenses and his personal characteristics establish defendant's individual culpability for the crimes associated with his imposed penalty. The record shows defendant did not commit his offenses in the heat of the moment. He acted alone and deliberately when he climbed a tree at night and entered the victim's master bedroom through a second story window. The record also shows that his intent was to physically intimidate K.C. and that his motive was highhanded domination of the victim. The record shows as well that defendant caused the victim, K.C., and her children to be in grave fear of physical injury or loss of life, as demonstrated by the commotion in the house and K.C.'s physical condition when he was encountered by sheriff's deputies. The record further establishes that defendant's conduct was not that of an impulsive teenager but a 36-year-old businessman with a history of domestic violence, as confirmed by the no negative contact restraining order issued against him for having previously shoved and choked the victim. That history included the court's leniency toward defendant in relation to his prior burglary conviction and his spousal abuse, a leniency that did not prevent defendant from reoffending. Defendant is culpable for planning a course of conduct that could have resulted in violence and that was consistent with a persistent history of violence.
We thus perceive nothing in defendant's penalty that shocks the conscience and offends fundamental notions of human dignity. Therefore, we conclude defendant's nine-year sentence did not violate his constitutional rights.
C. The Trial Court Did Not Abuse Its Discretion by Not Reducing Defendant's Felony Counts to Misdemeanors
Finally, because assault with a deadly weapon and criminal threats are "wobblers" (People v. Park (2013) 56 Cal.4th 782, 790; People v. Queen (2006) 141 Cal.App.4th 838, 842), defendant contends the trial court abused its discretion by not reducing his felonies to misdemeanors under subdivision (b) of section 17. We reject this contention as well.
A trial court's reduction of a wobbler offense to a misdemeanor under subdivision (b) of section 17 is an act of leniency to which a convicted defendant is not entitled as a matter of right. (People v. Tran (2015) 242 Cal.App.4th 877, 892.) Because a court has broad discretion when deciding to reduce a wobbler offense, the court's decision will not be disturbed on appeal unless it is clearly shown to be irrational or arbitrary. (Id. at p. 887.) "Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives." (Ibid.)
A court exercises its discretion to impose misdemeanor punishment for a wobbler when rehabilitation does not require or would not be served by incarceration. (People v. Park, supra, 56 Cal.4th at p. 790.) Here, the trial court considered whether defendant's rehabilitation could be achieved without incarcerating him as a felon. The court declined to impose misdemeanor punishments for defendant's current offenses because it found that defendant had repeatedly failed to take advantage of probation. The record supports the court's finding.
The record shows defendant was granted probation for his 2001 second degree robbery conviction, only to be incarcerated for his Vehicle Code section 10851 conviction in 2002. After pleading no contest to shoving and choking his wife in June 2014, the court struck defendant's 2001 prior strike and sentenced him to only three years of formal probation. However, defendant's probation was revoked in November 2014 after he argued with the victim while subject to the no negative contact restraining order. Probation was then reinstated with a 365-day county jail sentence. In July 2015, defendant was arrested for robbery and sentenced to three years in state prison. Defendant was on postrelease community supervision when he committed his current offenses.
Given defendant's record, we find nothing clearly irrational or arbitrary about the court's decision to deny defendant's motion made pursuant to section 17, subdivision (b). We therefore conclude the trial court did not abuse its discretion in not reducing defendant's felony counts to misdemeanors and, as stated above, we conclude the trial court did not abuse its discretion in denying defendant's Romero motion and defendant's nine-year sentence did not violate defendant's constitutional rights.
IV.
DISPOSITION
Judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.