Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA338702, Frederick N. Wapner, Judge.
Ann Krausz, 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, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Keoki Jarbar Williams, also known as Lil Ben, appeals from the judgment entered upon his conviction by jury of possession of a controlled substance (Health & Saf. Code, § 11350) as a lesser included offense of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). The trial court found to be true the allegations that appellant had suffered a prior felony strike within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and a prior prison term within the meaning of section 667.5, subdivision (b). The trial court denied two Romero motions, one filed before trial and another after, and sentenced appellant to the midterm of two years on his conviction doubled as a second strike.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On April 4, 2008, at approximately 11:30 p.m., Los Angeles County Deputy Sheriffs Darell Edwards and Joaquin Rincon were patrolling the 1700 block of 54th Street, in Los Angeles. They saw a group of men, including appellant, standing on the sidewalk and illuminated them with their spotlights. Appellant backed up, removed a plastic object from his jacket pocket, threw it to the ground and started to walk away from the group.
The deputies followed appellant and detained him. They also searched the area for the plastic object and found a baggie containing six wrapped pieces of an off-white substance later determined to be cocaine base. The street value of the cocaine was approximately $60. One hundred thirteen dollars were recovered from appellant.
Charges
As a result of the foregoing, the district attorney filed a single count information charging appellant with possession of cocaine for sale. The information also alleged one prior felony strike and two prior prison terms.
Romero motions
Before trial, appellant made a Romero motion to dismiss his 1998 prior felony strike conviction of attempted carjacking while armed with a handgun. Defense counsel argued that the prior conviction was remote, appellant was not the one in possession of the gun and he did not engage in violence during the incident. The trial court denied the motion. It stated: “I have to take into consideration the background, character and prospects, nature of the present offense and nature of the strikes or strike.” The trial court noted that while the strike was 10 years old, appellant had been in prison for a substantial portion of that time, he was a gang member, and was not “wholly outside the spirit of the three strikes law.”
Because the jury only found appellant guilty of the lesser included offense, appellant renewed his Romero motion. The trial court again denied the motion and imposed the two-strike sentence of four years. In denying the Romero motion the second time, the trial court stated: “The charge changed, but the conduct did not change. It’s not like the jury found that he really only had one rock when the original conduct was six. So the label changed, but the conduct wouldn’t change.”
Appellant’s criminal record
As reflected in the probation report, appellant had a lengthy history of interaction with law enforcement authorities, commencing when he was only 12 years old. Between the ages of 12 and 15, several petitions were filed against him. In July 1993, a petition charging him with robbery, grand theft automobile and taking of owner’s vehicle was filed. The disposition of that petition is unknown. On March 18, 1997, charges of carrying a concealed weapon on a person (§ 12025, subd. (b)), possession of a concealable firearm (§ 12101, subd. (a)), and carrying a loaded firearm in a public place (§ 12031, subd. (a)) were sustained, and appellant was given camp community placement.
On October 30, 1998, less than a year after becoming an adult, appellant was convicted of attempted carjacking (§ 215, subd. (a)) and sentenced to 42 months in prison. Upon his release, he suffered parole violations in April 2001 and May 2002. On January 15, 2003, he was convicted of unlawful taking of an owner’s vehicle (Veh. Code, § 10851, subd. (a)) and sentenced to 44 months in state prison. At the time the subject offense was committed, it appears that appellant was on parole.
DISCUSSION
A. Contention
Appellant contends that the trial court abused its discretion in denying his postverdict Romero motion. He argues that it failed to give proper consideration to the nature of the current charge, his attitude toward the offense, and other individualized factors. He claims that the trial court did not consider that he lacked the mental factor for possession for sale, that his current offense was nonviolent and did not involve the threat of violence and that he was cooperative with police when they confronted and arrested him. When considered with the remoteness of the prior strike and decreasing seriousness of his offenses, it “could well have provided a basis for striking his prior strike conviction.” This contention is without merit.
B. Applicable principles
Section 1385 provides in part: “The judge... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) Romero held that trial courts have authority to strike a prior conviction pursuant to section 1385. In deciding whether to do so, the trial court must take into account the defendant’s background, the nature of his current offense and other individualized considerations. (Romero, supra, 13 Cal.4th at p. 531.) Determining what constitutes “‘in furtherance of justice’” entails consideration “‘“both of the constitutional rights of the defendant, and the interests of society represented by the People,...”... At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.”’” (Id. at pp. 530-531.)
Thus, in deciding whether to strike a prior conviction, “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.” (People v. Williams (1998) 17 Cal.4th 148, 161.) We presume, in the absence of evidence to the contrary, that the trial court considered all relevant criteria (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836) and knew and applied the correct statutory and case law (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430).
Striking a serious felony is an extraordinary exercise of discretion and is reserved for extraordinary circumstances. (See People v. Philpot (2004) 122 Cal.App.4th 893, 905.) It only occurs when reasonable minds could not differ that the criminal falls outside the spirit of the three strikes scheme. (See People v. Carmony (2004) 33 Cal.4th 367, 378.) Where the record demonstrates that the trial court, in refusing to strike a prior felony conviction, balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, the Court of Appeal shall affirm the trial court’s ruling, even if it might have ruled differently in the first instance. (People v. Philpot, supra, at p. 905.) The party challenging the section 1385 ruling has the burden to show that the trial court abused its discretion. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.)
While appellant’s record is not the worst that comes before us, we nonetheless conclude that the trial court did not abuse its discretion in denying his Romero motion. In connection with the first Romero motion, the trial court correctly articulated the factors that it was required to consider in reaching its ruling. It stated that it had to consider “the background, character and prospects, nature of the present offense and nature of the strikes or strike.” While the charged offense was comparatively minor, that did not compel the trial court to grant the motion. The nature of the present offense is only one factor to be considered.
Other factors here weighed heavily in support of the trial court’s ruling. Appellant had been in trouble with the law since the age of 12. He was given camp community placement in 1997 for firearm violations. A year and one-half later, shortly after he reached age 18, he was convicted of attempted carjacking, a very serious crime, and sentenced to state prison for 42 months. While on parole from that sentence, he had multiple parole violations and in 2002 was convicted of unlawful taking of owner’s vehicle and sentenced to 44 months in prison. Thus, appellant was incarcerated for much of the 10-year period after he suffered his felony strike. Consequently, that strike was not remote.
Further, appellant’s prospects for leading a crime free life in the future were grim. He had multiple parole violations for his past offenses, and was on parole when the charged offense occurred. Thus, even while under formal supervision, appellant was unwilling to follow the rules. Moreover, appellant was a gang member. Such affiliation was likely to lead him to further criminal activity. Appellant apparently learned nothing from his prior incarcerations, as he continued his criminal ways shortly after his releases. The probation report listed numerous aggravating factors and no mitigating factors.
When all of the pertinent factors are considered, the trial court’s ruling was well within its broad discretion.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD Acting P. J., CHAVEZ J.