Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick T. Madden, Judge. Affirmed. No. NA075396
Anthony D. Zinnanti, 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, Senior Assistant Attorney General, Jason Tran and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
After officers arrested Charles D. Kennedy for arranging the sale of cocaine to a confidential informant, a jury convicted him of selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). In a bifurcated proceeding, Kennedy admitted having suffered one prior serious or violent felony conviction (Pen. Code, § 245, subd. (a)(1)) within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Kennedy was sentenced to a six-year term in state prison, consisting of the three-year lower term doubled under the Three Strikes law. Kennedy’s sole contention on appeal is the trial court abused its discretion in refusing to strike his prior conviction under section 1385 and People v. Superior Court (Romero) 13 Cal.4th 497 (Romero). We affirm.
Statutory references are to the Penal Code, unless otherwise indicated.
PROCEDURAL BACKGROUND
Before sentencing, Kennedy filed a Romero motion based upon his terminal illness, the relative remoteness of his prior strike conviction for aggravated assault, his status as a military veteran, his volunteer work, and the nonviolent and minor nature of his current drug offense. The motion underscored Kennedy’s poor health, indicating he “is a very sick man, having full-blown terminal diseases. A lengthy prison term will simply aggravate his situation.”
When the motion was argued, defense counsel again stressed the lack of violence and minor nature of the current offense. He also urged Kennedy deserved leniency because he was suffering from “cancer” and “full-blown AIDS,” and no longer posed a threat to anyone. Other than that assertion, neither defense counsel nor Kennedy offered detailed information as to Kennedy’s medical condition, necessary treatment, and anticipated lifespan. After listening to argument by counsel, the court denied the motion and sentenced Kennedy as a second strike offender.
The only other medical evidence was Kennedy’s testimony on cross-examination that he had “some medical issues” and had received treatment at some point for tuberculosis. Kennedy also advised the trial court following the verdict that he was “HIV positive” and, asked to be transferred to a medical unit. The trial court agreed to sign an order for him to be seen immediately by a physician.
DISCUSSION
A trial court’s decision not to strike a prior conviction pursuant to section 1385, subdivision (a), is reviewed for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) 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.) The defendant has the burden of demonstrating an abuse of discretion, and in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) There is a “‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) Indeed, “[b]ecause the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.)
The record shows the trial court reviewed the probation officer’s report and Kennedy’s written motion, and entertained oral argument. The probation report reflects that Kennedy is 50 years old, and he committed his current offense in August 2007. Kennedy was not employed, apparently making his living from narcotics transactions. His adult criminal history began in 1979 with a conviction for resisting an officer in the lawful discharge of official duties (§ 148, subd. (a)(1), and thereafter spanned 26 years, leading to 10 additional misdemeanor convictions, and the qualifying strike conviction for aggravated assault in 2004.
The People did not file a written response to the Romero motion.
Among Kennedy’s misdemeanor convictions: Engaging in a lewd act in public (§ 647, subd. (a)), making obscene telephone calls (§ 653m, subd. (a)), disturbing the peace (§ 415(1)), battery (§ 242), possession of burglary tools (§ 466), resisting an officer in the lawful performance of official duties (§ 148, subd. (a)(1)), petty theft (§ 484, subd. (a)), disorderly conduct (§ 647, subd. (f)), failing to appear as ordered by the court (§ 853.7) and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)).
In contending the trial court abused its discretion, Kennedy first argues the trial court denied his Romero motion without having sufficient information about the state of his health. Kennedy specifically faults the trial court for making “no effort to ascertain the facts of [his] terminal illness and anticipated life span,” notwithstanding Kennedy’s failure to provide such information to the trial court. Faced with a similar argument, our colleagues in the Court of Appeal for the Fifth District determined, “It is one thing to say that the court must consider evidence offered by the defendant in support of his [Romero] motion, but quite another to say that the court must gather and consider evidence that was not presented. We reject the notion that a defendant’s request under section 1385 imposes on the trial court a sua sponte investigational duty to ferret out facts potentially supporting the defendant’s request. We believe the burden instead is on the defendant to provide the facts.” (People v. Lee (2008) 161 Cal.App.4th 124, 129.) We agree with their conclusion. A trial court does not abuse its discretion for failing to consider evidence not before it that the defendant had the prerogative to provide, but failed to do so. (Id. at p. 130.)
Kennedy additionally argues “the pettiness of the instant offense” and “his terminal health condition” places him outside the spirit of the Three Strikes law. His contention amounts to nothing more than an effort to have us second-guess the trial court and to substitute our opinion as to leniency, something which this reviewing court cannot do. (People v. Williams (1998) 17 Cal.4th 148, 158-161.) There is no indication the trial court failed to consider fully these mitigating factors as they were argued at the hearing on the Romero motion. On this record, the trial court did not abuse its discretion in denying the Romero motion.
In the absence of California authority dealing with a defendant’s suffering from AIDS as a mitigating factor for purposes of sentencing, Kennedy relies on decisions from other jurisdictions. To the extent we consider these cases, they are factually distinguishable; their records contain ample medical evidence and/or the trial court’s own observations the defendants were not only infected with AIDS, but they were also extremely close to death—unable to survive their respective terms of imprisonment. (See State v. E.R. ( N.J.Super.Ct.App.Div. 1994) 641 A.2d 1072); People v. Lawson (N.Y.App.Div. 1993) 603 N.Y.S.2d 311; People v. Wong (N.Y.App.Div. 1996) 642 N.Y.S.2d; People v. Camargo (N.Y. S.Ct. 1986) 516 N.Y.S.2d 1004.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.