Opinion
A145745
04-05-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER JAY WOOTTON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC187197A)
Following a jury trial, defendant was found guilty of multiple felonies committed on separate occasions. Defendant contends the trial court violated his right to an impartial jury when it denied his motion to discharge a juror who attended the same church as a law enforcement witness for the prosecution, the evidence was insufficient to support his convictions for assault on a peace officer with a semiautomatic firearm because it was not shown his gun was operable on the day the assaults were committed, and the trial court abused its discretion in denying his motion to dismiss his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree and affirm the judgment.
I. BACKGROUND
We briefly summarize the facts of the offenses because, with the exception of the two offenses of assault with a semiautomatic firearm on a peace officer, the underlying facts are largely irrelevant to the issues raised in this appeal.
We will describe the assaults with a semiautomatic firearm on a peace officer in our discussion below.
Defendant engaged in a crime spree, robbing 10 banks in Marin County from December 12, 2012 to December 11, 2013. After the last robbery on December 11, 2013, defendant led officers on a high-speed chase. He crashed his vehicle, then exited it, and pointed a loaded, semiautomatic nine-millimeter Glock handgun at two officers. He was shot by one of the officers and taken to the hospital. Afterward, defendant admitted he committed the 10 bank robberies and an attempted robbery at another bank. Defendant also looked at flyers with still shots of the perpetrator portrayed in security footage from the 10 robberies and the attempted robbery, and confirmed he was the person depicted robbing or attempting to rob the banks, initialing all 11 flyers.
The Marin County District Attorney filed an information charging defendant with 10 counts of second degree robbery (Pen. Code, § 211), one count of attempted second degree robbery (§§ 211, 664), one count of commercial burglary (§ 459), one count of evasion of a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), two counts of assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)), and one count of carrying a loaded firearm on one's person or in a vehicle (§ 25850, subd. (c)(1)). As to the second degree robberies, it was alleged the offenses were serious felonies (§ 1192.7, subd. (c)(19)), violent felonies (§ 667.5, subd. (c)(9)), and defendant was armed during the commission of the robbery charged in count 12 (§ 12022, subd. (a)(1)). It was also alleged the attempted second degree robbery was a serious felony (§ 1192.7, subd. (c)(39)) and the commercial burglary was a serious felony (id., subd. (c)(19)) and a violent felony (§ 667.5, subd. (c)(9)). The two counts of assault with a semiautomatic firearm on a peace officer included allegations the offenses were serious felonies (§ 1192.7, subd. (c)(31)), violent felonies (§ 667.5, subd. (c)(8), (22)), and defendant personally and intentionally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (a)(7), (b) & (g)). The prosecutor further alleged defendant had two prior convictions for first degree burglary (§ 459) and kidnapping to commit robbery (§ 209) within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of the offenses as charged and found true the allegations defendant was armed with a firearm during the commission of the robbery charged in count 12, and he personally and intentionally used a firearm during the assaults with a semiautomatic firearm on the peace officers. The jury subsequently found true the allegation defendant suffered a prior conviction, kidnapping to commit robbery, within the meaning of the three strikes law.
After the court indicated it would strike the prior burglary conviction, the prosecutor elected to not prove this offense.
The trial court denied defendant's Romero motion and sentenced him to a prison term of 60 years 4 months.
Defendant filed a timely appeal.
II. DISCUSSION
A. Juror Misconduct
Defendant contends the trial court erred in denying his motion to dismiss Juror No. 12 after it was discovered the juror attended the same church as a prosecution witness. We conclude substantial evidence supports the trial court's ruling.
1. Background
Sergeant Coale testified during trial that following the last robbery, defendant led officers on a vehicle chase. Coale stated he was seated in his patrol car in the vicinity of where defendant crashed his car, after which defendant exited his car, and pointed a gun directly at him.
Five days after Coale testified, the prosecutor informed the court outside the presence of the jury that Coale had told her on Friday, "he thought he recognized two of the jurors from his church." He did not know the names of the jurors, but had seen one of them at church on Sunday. According to the prosecutor, "they said hello. I believe the juror asked how Sergeant Coale was doing, Sergeant Coale said it was a long process and they stated that they knew they couldn't discuss the case." The court brought the jury in and asked if anybody recognized Coale "from somewhere other than the courtroom or through some personal experience." Juror No. 12 and Alternate Juror No. 1 raised their hands. The court cleared the courtroom and proceeded to question Juror No. 12 first about whether she had any contact with Coale since the case started.
Juror No. 12 explained she had interacted with Coale while walking into the court the morning he testified: "Actually, on the morning of his testimony he saw me walk into the building and he said, 'Hey, I recognize you.' And I looked at him and I didn't recognize him immediately. And then he said, 'You have a couple little girls.' And I looked at him a little more quizzically, and then he said, 'I recognize you from church.' And I said, 'Oh, yes, now [I] recognize who you are.' And I actually . . . said I had to excuse myself because I was on my way to jury duty and he asked what case and I said, 'People versus Wootton,' and then that's it."
Juror No. 12 further stated she had not interacted with Coale on any occasion: "Well, it's been my church since we moved here. I don't go as often. I've never even had an occasion to speak to him other than when I walked in the building, I mean I just recognized him visually, but I've had no contact with him before or since other than when I walked in."
Though Juror No. 12 had lived in her community for 16 and a half years, her family only attended services about four times a year. Defense counsel asked this juror, "And if you were to see him at church after the trial and you had voted to acquit on this count that he's involved in, how would that make you feel?" Juror No. 12 replied, "Perfectly fine." Juror No. 12 also indicated she had not spoken to other jurors about her interaction with Coale and had neither socialized with Alternate Juror No. 1 nor knew him before the trial. The court reminded this juror she could not discuss the case with anyone and if someone tried to speak with her about the case, she would have to "end the conversation immediately."
The court next questioned Alternate Juror No. 1. This juror revealed he went to the same church at the same service time as Coale. He had greeted Coale at church in passing, including the Sunday following his testimony, but had never socialized with him. He had not discussed "any of this" with the other jurors. He also told the court about 300 persons attend the 10:30 a.m. Sunday mass. As with Juror No. 12, defense counsel asked Alternate Juror No. 1, "And if you were to see him and you had rendered a verdict that was contrary to the charge where he's an alleged victim[,] how do you think that would effect [sic] your relationship to him?" Alternate No. Juror 1 responded, "I don't think it would effect [sic] it. [¶] . . . [¶] . . . If that's what the facts show that's what they show. I'm more of a fact person than emotional." Alternate Juror No. 1 stated if he had recognized Coale's name as one of the witnesses or named victims in the case, he would have disclosed the information, though he did not think the relationship would have been a reason to not serve on the jury.
Defense counsel asked to have both jurors excused. The court denied the request stating:
"In both [Juror No. 12's] and [Alternate Juror No. 1's] case they did not recognize Sergeant Coale by name, in fact it sounds like both of them had very little contact with Sergeant Coale at church. [Juror No. 12] indicated that she and her family do not attend church very often. She was not able to place Sergeant Coale's name. She actually did not even recognize Sergeant Coale when Sergeant Coale first approached her. And thereafter I don't see that once she understood who he was did she engage in any impropriety.
"I don't see that there were any improper contacts or discussions among any of these people. I don't see that [Juror No. 12] has expressed any bias against the defense based on her relationship or minimal relationship with Sergeant Coale.
"I would also note that when specifically asked whether or not that fact would cause her difficulty in returning a not guilty verdict if she thought that was what the evidence presented she indicated that that would not prevent her from doing that, so I don't see that this situation has developed into a case of clear bias or any bias for that matter.
"With respect to [Alternate Juror No. 1], . . . [he] was adamant in that he could be fair to both sides and [defendant]. He was adamant that he would rely on the facts presented and he would have no problem returning a verdict of not guilty if that's what the evidence established. So if this were during jury selection and this were a challenge for cause I would deny that challenge for cause.
"We're in the middle of a trial. I don't see that this rises to the level of me excusing these two jurors so that request is denied."
2. The Trial Court Properly Denied the Motion to Dismiss Juror No. 12
Because Alternate Juror No. 1 was never called to serve on the jury, defendant does not raise the propriety of the court's decision not to remove him.
Defendant argues the trial court abused its discretion and violated his right under the Sixth and Fourteenth Amendments to an impartial jury when it refused to dismiss Juror No. 12. According to defendant, "Defense counsel's argument that the church 'relationship alone interferes with their ability to serve as impartial triers of fact here' states the issue precisely." We disagree.
"Section 1089 'authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is "found to be unable to perform his or her duty." ' [Citation.] '[W]hen a trial court's denial of a motion to discharge a juror is supported by substantial evidence, it will be upheld.' " (People v. Maciel (2013) 57 Cal.4th 482, 543 (Maciel).) The qualifications of jurors challenged for cause are generally matters within the wide discretion of the trial court and will seldom be disturbed on appeal. (People v. Lomax (2010) 49 Cal.4th 530, 565.) " 'Before an appellate court will find error in failing to excuse a seated juror, the juror's inability to perform a juror's functions, must be shown by the record to be a "demonstrable reality." The court will not presume bias, and will uphold the trial court's exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence.' " (People v. Jablonski (2006) 37 Cal.4th 774, 807.)
Substantial evidence supports the trial court's ruling here because the record does not show Juror No. 12 was unable to fulfill her functions as a demonstrable reality. On the contrary, Juror No. 12's responses to the court's and counsel's questions reflected no actual bias and she demonstrated the ability to evaluate Coale's testimony objectively and fairly. While they attended the same church, Juror No. 12 did not even recognize Sergeant Coale outside the courthouse when he initially spoke to her, and their conversation was brief with no discussion involving the facts of the case or Sergeant Coale's testimony. She also had no other contact with him either before or after he testified, which is not surprising considering the large size of the congregation and Juror No. 12's infrequent attendance. When asked by defense counsel how she would feel if she were to see Coale after voting to acquit defendant of the assault charge, Juror No. 12 replied, without hesitation, "Perfectly fine." Considering all of these circumstances, the court acted within its discretion when it did not remove Juror No. 12 from the jury.
The circumstances here are less suggestive of bias than those in Maciel, supra, 57 Cal.4th 482, in which the Supreme Court upheld a trial court's denial of the defendant's motion to dismiss a juror during the penalty phase of a trial. There, after the prosecutor completed his opening statement, a juror told the judge he worked in maintenance in the same jail where two of the law enforcement witnesses were employed. The juror explained he did not " 'really know' " the witnesses, but they worked on the same shift as he did. He also stated he had neither seen nor socialized with either witness outside of work, though he had had " 'lunch with them in the same cafeteria.' " (Id. at p. 543.) The juror had never spoken to them about the defendant or the case, and indicated he would weigh the two witnesses' testimony in the same way as anyone else's testimony. (Ibid.) The Supreme Court concluded substantial evidence supported the trial court's denial of defendant's motion to dismiss the juror because, it "was in a position to observe Juror No. 2's demeanor, found no evidence that he had prejudged any issue, nor do Juror No. 2's answers reveal actual bias." (Id. at pp. 543-544.) In comparison to the more extensive contact between the witnesses and the juror in Maciel, Juror No. 12's slight interaction with Coale was inconsequential.
Although defendant relies on People v. Hecker (1990) 219 Cal.App.3d 1238, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248 & fn. 12 (Hecker), this case is inapposite. In Hecker, the trial court removed a juror after she informed the court she recognized the defendant during a visitor welcoming ceremony in her church where he asked to become a church member. (Id. at pp. 1242-1243.) In response to questioning, the juror admitted it was going " 'to put a burden on me' " to be impartial and fair. (Id. at p. 1243.) She thought it would " 'bother' " her to stand in judgment of the defendant. (Id. at p. 1244.) In upholding the trial court's decision to excuse the juror, the appellate court concluded the record indicated as a demonstrable reality the juror could not perform her duty within the meaning of section 1089 "because she could not assure the court she would decide the case by reference exclusively to the law and the evidence." (Hecker, at p. 1245.) As the appellate court explained, "An admission by a juror that there is a significant likelihood extraneous matters will enter into the decisionmaking process is, in our view, sufficient to warrant removal of the juror and substitution of an alternate." (Ibid.) Here, in contrast, Juror No. 12 was able to assure the trial court Coale's membership in the church would not interfere with her ability to be fair and impartial. Substantial evidence thus supports the trial court's decision to keep Juror No. 12 on the jury. B. Operability of the Semiautomatic Firearm
As previously noted above, defendant was convicted of two counts of assault on a peace officer with a semiautomatic firearm. Defendant claims these convictions cannot be upheld because there was insufficient evidence the firearm, a Glock nine-millimeter pistol, was capable of operating as a semiautomatic firearm. We conclude substantial evidence supports the guilty verdicts.
1. Background
After defendant committed his final robbery, Deputy Carpenter pursued defendant in a high-speed chase. Sergeant Coale believed the suspect would drive to a particular area, and proceeded there. Defendant eventually lost control of his car, spun, and apparently collided with a light pole in the area where Coale was located. Carpenter, now in the same area, observed defendant get out of his car, moving quickly away from the vehicle. Carpenter also exited his vehicle. Defendant then pulled out a black semiautomatic firearm and "brought the barrel of the weapon up towards [Deputy Carpenter]." Carpenter drew his weapon because he was concerned defendant could kill him. After aiming the gun "a split second" at Carpenter, defendant's attention was drawn to Sergeant Coale. Coale, who was still seated in his vehicle, saw defendant point the gun at him. As Coale was attempting to put his car into gear and move out of the line of fire, he heard "three to four shots" and saw defendant "go down." It turned out Carpenter had shot defendant four times, believing defendant was going to shoot Coale.
After defendant was apprehended, Special Agent Jonathan Weis of the Federal Bureau of Investigation observed a firearm on the grass approximately two and a half to three feet from defendant. Weis retrieved the weapon, which was loaded, meaning the gun had bullets inside the magazine and a round in the chamber. He then "dropped the magazine" and "cleared the weapon" of the round in the chamber.
In speaking with Sergeant Michael Vergara at the hospital, defendant stated he knew his gun was loaded. Defendant claimed, however, he found the weapon approximately 20 years ago, the magazine was broken, and the last time he tried to fire it, the gun jammed.
Angela Stroman, a criminalist with the California Department of Justice testified as an expert in the field of firearm examination. Stroman explained to the jury that a firearm is "anything that was designed to use the power of combustion to propel a bullet or projectile down a barrel." A semiautomatic firearm is "one in which the pull of the trigger shoots the bullet down the barrel, ejects the cartridge case and then reloads another cartridge into the chamber of the firearm."
When Stroman received the nine-millimeter Glock pistol, it was unloaded and in a separate box from the magazine and the loose cartridge. To determine whether or not the Glock was functional, Stroman took one of "our reference firearms of the same make and model of the submitted firearm. I broke both of them down by taking off the slide from the frame and removing the barrel and a spring that holds the barrel in place into the slide." She then compared the "two known reference standards to make sure no parts were missing, nothing appeared cracked or damaged and make sure that . . . it was safe to fire." After checking the condition of the Glock, she went to the firing range where she "fired three laboratory cartridges from the firearm." According to Stroman, "There were no malfunctions noted. It cycled properly and fired the bullets properly." She did not note any abnormalities in the Glock; however, she neither inspected the magazine accompanying the firearm, nor did she fire the gun with this magazine. Instead, she used a Department of Justice magazine, so she did not know if the gun functioned with the original magazine.
However, Stroman stated: "This firearm can be loaded by just placing a cartridge directly into the chamber, so with the slide open you can push a cartridge into there and then let the slide close over it. And a Glock firearm will fire without a magazine present in it." But, she explained, individuals typically load a magazine in the pistol grip portion of the weapon and "do the cycle of fire." Stroman described the "cycle of fire": "For this particular firearm a person would load a magazine and then place that magazine into the . . . pistol grip . . . . Once the magazine is properly seated a person would have to pull back on the slide and allow it to move itself forward. This action strips a bullet or cartridge from the magazine and places it into the chamber, that is how you would load a firearm, this particular make and model. [¶] Once the pull of the trigger occurs the firearm's firing pin hits the primer, the primer ignites the combustible material inside of the cartridge that causes gasses to expand and propel the bullet down the barrel of the firearm. [¶] And then the pressure also pushes back on the cartridge case which then unlocks the slide, pushes the slide back and causes the ejection and extraction of the cartridge case that had originally held the fired bullet and then the slide will move over the top of the magazine, strip another cartridge off of the magazine and re-chamber it and wait for another pull of the trigger."
A magazine, according to Stroman, is not what makes the Glock a semiautomatic firearm: "I mean these guns are defined as semi-automatic because of their design. Just because the magazine is not present doesn't make its action not semi-automatic. It's still attempting to do that job but it just can't because it doesn't have another round to reload into the chamber."
2. There Was Sufficient Evidence the Glock Pistol Was Operable as a Semiautomatic Firearm
Defendant argues the convictions for assault with a semiautomatic firearm on a peace officer must be reversed because there was insufficient evidence the Glock handgun was capable of operating as a semiautomatic firearm on the day of the last crime.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] 'This standard applies whether direct or circumstantial evidence is involved.' " (People v. Avila (2009) 46 Cal.4th 680, 701.)
As relevant to this case, section 245, subdivision (d)(2) provides when a peace officer is engaged in the performance of his or her duties, any person who assaults a peace officer with a semiautomatic firearm, and who knows or should reasonably know the victim is a peace officer, shall be punished by imprisonment in state prison. "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury." (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
"A semiautomatic firearm 'fires once for each pull on the trigger and reloads automatically, but requires the shooter to release the trigger lever before another shot can be fired.' [Citation.] An automatic firearm 'will continue firing until either the trigger is released or the ammunition has been expended.' " (In re Jorge M. (2000) 23 Cal.4th 866, 874-875, fn. 4.) When a semiautomatic firearm is unloaded, it does not cease to be a firearm. The firearm does not "suddenly become a billy club, a stick, or a duck" after the clip is removed. (People v. Miceli, supra, 104 Cal.App.4th at p. 270.)
The use of an unloaded or inoperable firearm, however, does not support a conviction for assault with a firearm, unless the weapon is us used as a bludgeon, which is not the situation here. (People v. Wolcott (1983) 34 Cal.3d 92, 102; People v. Miceli, supra, 104 Cal.App.4th at p. 270.) And whether or not the firearm was loaded and operable is a factual question to be determined by the jury. (People v. Rodriguez (1999) 20 Cal.4th 1, 12-14; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 542.) "A defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that he used a loaded weapon." (People v. Rodriguez, at p. 13.)
Defendant maintains the evidence was insufficient to prove he pointed an operable semiautomatic Glock pistol at Deputy Carpenter and Sergeant Coale, specifically emphasizing he never fired the gun, the magazine was broken, and the prosecution's firearm expert never test-fired the weapon using defendant's magazine, instead using her own. Even though the firearm operated as a semiautomatic with the expert's magazine, defendant asserts this was inadequate to prove the firearm was capable of operating as a semiautomatic on the day of the crime. We reject defendant's argument because any rational trier of fact could have found beyond a reasonable doubt defendant assaulted the officers with an operable semiautomatic Glock gun.
The Attorney General relies on three instructive cases to support the view that when defendant pointed his loaded weapon at Carpenter and Coale, "he had the present ability to apply force with a semiautomatic firearm to a person."
The Attorney General first cites to People v. Chance (2008) 44 Cal.4th 1164 (Chance). In Chance, the Supreme Court found sufficient evidence to support the present ability to inflict injury on an officer where the defendant's gun was loaded with 15 rounds in the magazine, but no round in the firing chamber. There was evidence, however, the defendant could have chambered one by pulling back a slide mechanism. The court also did not indicate in the underlying facts that the defendant's firearm was actually fired by the defendant or tested by law enforcement. (Id. at pp. 1168-1169.) Yet, the Supreme Court upheld the conviction for assault with a firearm on a peace officer. (Id. at p. 1176.)
The Attorney General also cites to People v. Ranson (1974) 40 Cal.App.3d 317 (Ranson). In Ranson, the defendant aimed a rifle at a police car. When an officer fired a shot at the defendant, he noticed the defendant move as if to cock or operate the bolt on the rifle. (Id. at p. 319.) After the defendant was disarmed, police discovered there was no round in the chamber because a cartridge was jammed in the magazine. (Id. at p. 320.) The court first observed, while "pointing an unloaded shotgun does not constitute 'present ability[,]' [Citations.] . . . an automatic rifle does present such 'present ability' when there are loaded cartridges in the magazine of the rifle even though the firing chamber is empty; only an 'instantaneous transfer' is necessary." (Id. at p. 321.) The court determined "it was not an abuse of discretion under these facts for the trial court to find that [the defendant] had the present ability to commit a violent injury in that he could have adjusted the misplaced cartridge and fired very quickly." (Ibid.)
The last of the Attorney General's authorities is People v Miceli, supra, 104 Cal.App.4th 256, in which the Court of Appeal rejected the defendant's claim that insufficient evidence supported his conviction for assault with a semiautomatic firearm even though he maintained his firearm was not loaded with a clip, and as result, it was not operable. The court found the defendant was mistaken for two reasons. First, substantial evidence established his firearm was loaded. Second, the offense of assault can be proved even if the gun is not operable as a semiautomatic firearm since the crime could also be committed by using the weapon as a bludgeon, as the defendant did. (Id. at p. 268.) Significantly, the court further found that since the evidence established the firearm was loaded, and though the defendant did not chamber a round, substantial evidence still supported the conviction based on the firearm's operability. (Id. at p. 269.)
We find the Attorney General's authorities are persuasive, and therefore conclude sufficient evidence supports defendant's convictions for assault on a peace officer with a semiautomatic firearm.
Here, the evidence established defendant had the present ability to apply force with a semiautomatic firearm. Indeed, there is even more evidence of operability than in Chance, Ranson, and Miceli. When defendant's handgun was retrieved, it contained not only a magazine clip with cartridges but a chambered cartridge ready to be fired. The criminalist, Stroman, tested the general operability of the weapon by taking it apart, comparing it to a reference firearm to confirm no parts were missing, and then test-fired it using three cartridges from a laboratory magazine. Nothing, according to Stroman, appeared to be cracked or damaged, and the weapon was able to cycle and fire properly and safely. Defendant's own statements and actions additionally corroborated Stroman's conclusion the weapon was operable. Following defendant's arrest, he admitted to Sergeant Vergara the semiautomatic was loaded, and he had it in his possession during the robberies. He also drew his weapon and pointed it at Carpenter and Coale, signifying he had the present ability to fire the Glock pistol.
Defendant argues to the contrary on the basis of Stroman's failure to use his magazine in test firing the semiautomatic, his own failure to fire his weapon, and his self-serving statements the magazine was broken and the gun jammed the last time he tried to fire the weapon, but the jury was entitled to reject defendant's assertions and credit Stroman's testimony, along with the other evidence, to conclude the Glock pistol was in fact operable. "We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses." (People v. Riazati (2011) 195 Cal.App.4th 514, 532.) The evidence establishing the semiautomatic weapon was operable was sufficient to support defendant's convictions for assault on a peace office with a semiautomatic firearm. C. Romero Motion
Defendant contends the trial court abused its discretion by denying his Romero motion to strike his 1979 prior conviction. We disagree.
1. Background
As noted above, after the jury found defendant guilty of all of the charged offenses, in a bifurcated trial, it found true the allegation defendant had suffered a prior 1979 conviction for kidnapping for robbery (§ 209) within the meaning of the three strikes law.
Defendant later filed a Romero motion to dismiss this second strike conviction, arguing it was too remote in time, he cooperated with law enforcement following his arrest, and he had suffered severe hardships early in life. The trial court denied defendant's motion. Noting the prior conviction was remote in time, having occurred approximately 30 years ago, the court stated the remoteness of the crime would be a more compelling argument if there had been no intervening crimes. But as the court elaborated, defendant had not been conviction-free between the time of his prior strike conviction and the current offenses. The court further commented on the seriousness of the prior conviction and its relationship to defendant's current conduct: "I'm looking at one strike, I'm looking at a kidnapping, I'm looking at the conduct underlying that kidnapping and it is serious, it is dangerous, it is one of the most dangerous situations that you put someone in when you break into their home, you actually take someone from that home and you remove them with threats of violence. So I find that the underlying strike is reflective of the conduct that Mr. Wootton engaged in most recently." Additionally, the court found the current offenses were violent, dangerous, and put civilians and law enforcement at risk of serious bodily injury and harm, and hence striking the prior conviction would not protect the public.
2. The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Romero Motion
A trial court may, in the "furtherance of justice," dismiss a prior strike conviction pursuant to section 1385, subdivision (a). A decision by the trial court to dismiss a prior strike is reviewed for abuse of discretion. (Romero, supra, 13 Cal.4th 497, 531.)
In ruling on a Romero motion whether to strike a prior serious and/or violent felony conviction under the three strikes law, 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." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant, on appeal, places emphasis on the remoteness of the 1979 kidnapping for robbery conviction, arguing he has been " 'reasonably crime free for about ten years before the current offenses.' " As the Attorney General points out, however, the remoteness factor under the circumstances of this case "is not determinative." In People v. Humphrey (1997) 58 Cal.App.4th 809 (Humphrey), for example, the court held the trial court abused its discretion in dismissing a prior strike conviction on the sole ground it happened 20 years before the current crime where the defendant had "led a continuous life of crime after the prior." (Id. at p. 813.) The court stated "there has been no 'washing out' and there is simply nothing mitigating about a 20-year-old prior." (Ibid.) Similarly, in People v. Philpot (2004) 122 Cal.App.4th 893, 906 (Philpot), the appellate court held the trial court "could not overlook the fact defendant consistently committed criminal offenses for the past 20 years."
As in Humphrey and Philpot, defendant here had not led a blameless life during the approximately 30 years between the 1979 prior offense and the commission of the current offenses. Defendant's sentencing report indicated he was incarcerated for his prior strike offense from 1979 to 1990, which would explain how he had managed to remain crime-free during this time span. A little over two years after defendant was paroled, he was convicted in 1992 of felony burglary (§ 459) and felony grand theft (former § 487.1), for which he received probation. Then in 1997, defendant was convicted of misdemeanor resisting and obstructing a peace officer (§ 148, subd. (a)), and in 2002, he suffered a felony conviction for cultivation of marijuana (Health & Saf. Code, § 11358). Once again he received probation.
Though defendant, in the trial court, also emphasized the hardships he had endured in his personal life—he was adopted, but later placed in foster care, his family life from then on was dysfunctional, he was forced to trade sexual favors for housing and material goods as a teenager, and he became addicted to drugs—given the seriousness of defendant's prior violent felony coupled with defendant's commission of further crimes following parole, and the serious and violent nature of his current, numerous offenses, the trial court was more than justified in denying defendant's Romero motion.
Finally, defendant asks us to consider that even without the strike, he will still serve a lengthy prison term of 37 years in prison, over half of the 60-year 4-month term he received. A defendant's sentence is "a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (People v. Garcia (1999) 20 Cal.4th 490, 500.) But this argument does not demonstrate the court abused its discretion in denying defendant's Romero motion.
In this case, the trial court determined defendant had not been crime-free between the time he was released on parole and the commission of the current offenses, and dismissing the prior strike conviction, resulting in a shorter sentence, would not protect the public. The record amply supports the inference defendant is likely to continue to engage in criminal activities regardless of how long he is imprisoned. Accordingly, although defendant might have been facing a lengthy prison sentence even in the absence of the prior strike conviction, his prospects for committing future offenses were not diminished by that fact.
In short, we cannot say the trial court abused its discretion by denying defendant's motion to dismiss his prior strike conviction for kidnapping for robbery.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.