Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC066554
Dondero, J.
Defendant entered a negotiated no contest plea to two counts of residential burglary (Pen. Code, § 460, subd. (a)), which he admitted were serious or violent felonies (Pen. Code, §§ 1192.7, subd. (c), 667.5, subd. (c)). He also admitted alleged enhancements for prior serious and violent felony convictions (§§ 667, subd. (a), 1170.12, subd. (b)(1)), a prior prison term served (§ 667.5, subd. (b)), and commission of a violent felony while on parole (§ 1203.085, subd. (b)). Defendant then moved pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to dismiss his prior strike conviction. The motion was denied, as was defendant’s request for probation, and the trial court imposed terms for the residential burglary convictions, which were doubled (§ 1170.12, subd. (c)(1)), and a five-year enhancement for serious felony enhancement (§ 667.5, subd. (a)), for an aggregate state prison term of 11 years 8 months.
All further statutory references are to the Penal Code unless otherwise indicated.
In accordance with the negotiated disposition the prosecution dismissed additional charges.
On appeal, defendant claims that the trial court erred by denying the motion to strike his prior conviction. We find no abuse of discretion in the trial court’s refusal to dismiss or strike the prior conviction, and affirm the judgment.
In light of defendant’s plea and the issues raised on appeal we will concisely recite the facts pertinent to the underlying convictions, which are based on the evidence presented at the preliminary hearing and contained in the probation report.
Defendant admitted that he committed two residential burglaries less than an hour apart on May 9, 2008, one of which occurred at the home of Anita Spinetti on Mariposa Avenue in South San Francisco. Defendant arrived at the residence, knocked on the door, and told Spinetti that she was eligible for a “special service” program for “senior citizens,” whereby she would receive a $200 “gift” which she could use to pay for yard work or tree service. Defendant asked Spinetti for “change so that he could give her the $200,” then followed her into the residence and watched while she opened a “drawer that contained the cash.” Spinetti thereafter accompanied defendant into her backyard at his request to show “her the type of work that he would be doing,” while a second “younger person” associated with defendant “also entered the residence.” After Spinetti returned to the inside of the house, both men left. Spinetti thereafter realized that approximately $780 in cash had been taken from her dresser drawer.
The same day, defendant appeared at the residence of John and Valerie Barry on Alta Vista Drive in South San Francisco – three blocks away from Spinetti’s home – and asked to use their electricity to do “some work” on a neighbor’s fence. Defendant escorted John into the backyard to show him “where he was going to be doing the repairs on the fence.” While they were outside, a second, unidentified “younger” subject entered the house, and seemed “startled” when he encountered Valerie, “like he wasn’t expecting her to be there.” He said he “was with [defendant].” After defendant returned to the house with John, he and the “second suspect” left. Nothing was taken from the Barry’s home.
To avoid confusion we will refer to John and Valerie Barry by their first names.
Defendant was arrested at a motel room on Monterey Road in San Jose on May 23, 2008. With defendant in the motel room were a woman named Rachel Demetro and a juvenile who identified himself as John Pelle. They matched descriptions of suspects in burglaries committed at the homes of elderly residents in South San Francisco and other San Mateo County cities. Defendant was determined to be on parole, so a parole search of the motel room was conducted. Considerable contraband and evidence of the burglaries was discovered, including currency, jewelry, watches, collector’s coins, pawn slips and cellular phones.
DISCUSSION
The Denial of Defendant’s Motion to Strike Prior Convictions.
Defendant argues that the trial court erred by denying the Romero motion to strike his prior convictions for purposes of sentencing. He maintains that by relying on the serious “nature of the current offenses” to deny the Romero motion, without taking into account the “specifics of the crimes,” the court improperly eliminated a pertinent consideration “from the Romero balancing process.” Defendant asserts that he is a “lesser offender” whose past and present crimes do not justify the doubling of his sentence under the Three Strikes law. He acknowledges that the “current offenses are felonies and thus serious by definition,” but claims “they are not relatively egregious when compared to other ‘strikes.’ ” Defendant points out that the current felonies involved “no violence and no weapon use,” and the losses incurred by the victims were not great – “$780 in one case and no loss in another.” He also maintains that the record shows he has “taken great strides to improve himself and to be a good father to his children and husband to his wife.” Defendant therefore complains that the court “abused its discretion in not dismissing ‘strike’ allegations under count one and/or two prior to sentencing.”
“ ‘Pursuant to section 1385, subdivision (a), “in furtherance of justice,” the trial court may dismiss an allegation or vacate a finding that a prior serious or violent felony conviction qualifies as a strike under the Three Strikes law....’ ” (People v. Stone (1999) 75 Cal.App.4th 707, 716, citations omitted.) Romero “confirmed that under the Three Strikes sentencing scheme the trial court retains the discretion to dismiss, or strike, one or more of a defendant’s prior convictions, ‘subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.’ [Citation.]” (People v. McGlothin (1998) 67 Cal.App.4th 468, 472; see also People v. Ortega (2000) 84 Cal.App.4th 659, 666.)
The court in Romero, supra, 13 Cal.4th 497, 530–531also provided guidance in the manner of the trial court’s exercise of discretion to strike a prior conviction under section 1385, subdivision (a): “ ‘The trial court’s power to dismiss an action under section 1385, while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be “in furtherance of justice.” As the Legislature has provided no statutory definition of this expression, appellate courts have been faced with the task of establishing the boundaries of the judicial power conferred by the statute as cases have arisen challenging its exercise. Thus, in measuring the propriety of the court’s action in the instant case, we are guided by a large body of useful precedent which gives form to the above concept.’ [¶] ‘From the case law, several general principles emerge. Paramount among them is the rule “that the language of [section 1385], ‘in furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]” [Citations.] At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” [Citations.]’ [Citation.]” (Italics omitted; see also People v. Superior Court (Pipkin) (1997) 59 Cal.App.4th 1470, 1476–1477.) “The touchstone for that standard, where a trial court is asked to dismiss a prior serious or violent felony conviction which qualifies as a strike ‘in furtherance of justice’ pursuant to section 1385, subdivision (a),... is 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.’ [Citations.]” (People v. Gaston (1999) 74 Cal.App.4th 310, 315, italics omitted, quoting from People v. Williams (1998) 17 Cal.4th 148, 161; People v. Garcia (1999) 20 Cal.4th 490, 503.)
“ ‘[A] decision to strike a prior is to be an individualized one based on the particular aspects of the current offenses for which the defendant has been convicted and on the defendant’s own history and personal circumstances. This approach allows the court to perform its obligation to tailor a given sentence to suit the individual defendant. But the court must also be mindful of the sentencing scheme within which it exercises its authority. In deciding to strike a prior, a sentencing court is concluding that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.’ [Citation.]” (People v. Cluff (2001) 87 Cal.App.4th 991, 1004.)
We review the ruling for an abuse of discretion, “ ‘ “The governing canons are well established: ‘This discretion... is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]’ [Citations.]... ‘[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and legal policies appropriate to the particular matter at issue.’ [Citation.]” [Citation.]...’ ” (People v. Stone, supra, 75 Cal.App.4th 707, 716–717, quoting from People v. Gaston, supra, 74 Cal.App.4th 310, 314–315.) But, a defendant “who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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.” (People v. Myers (1999) 69 Cal.App.4th 305, 309–310.)
Looking at defendant’s past criminal record, we find essentially an unabated history of burglary and theft offenses committed over the course of over 20 years, despite two prior prison terms, along with admitted long-term chronic drug abuse. He has engaged in repeated commission of offenses for a lengthy period both during or directly following release from the constraints of criminal justice supervision. (People v. Gaston, supra, 74 Cal.App.4th 310, 321; see also People v. Barrera (1999) 70 Cal.App.4th 541, 554–555.) He has repeatedly failed to successfully complete parole, and was on parole again when the present offenses were committed. Despite the lack of physical violence associated with defendant’s past crimes we do not share his assessment that he is a “lesser offender.” To the contrary, he is, in short, just the kind of recidivist offender the Three Strikes law was designed to reach. Defendant’s history of a multitude of criminal offenses and parole violations over the years suggests he continues to pose a cognizable risk to society that does not take him “outside the spirit of the Three Strikes law” to any degree. (People v. Williams, supra, 17 Cal.4th 148, 162–163; see also People v. Strong (2001) 87 Cal.App.4th 328, 338–339; People v. Stone, supra, 75 Cal.App.4th 707, 717; People v. Thornton (1999) 73 Cal.App.4th 42, 49.)
Turning to the current offenses, we do not think the trial court ignored the particulars of defendant’s background, character, or the past and current crimes in denying the Romero motion. The court mentioned that, consistent with defendant’s pattern, the victims of the current “calculated” offenses were more vulnerable “elderly people” who “can’t protect themselves” and are “unlikely to cause him much resistance.” The court took defendant’s disadvantages and “difficult” background into account, but also properly observed that even without infliction of physical harm during the crimes, by “victimizing the elderly” defendant “hurt these people” and caused them to “live with this fear.” That defendant did not perpetrate any acts of physical violence against the victims does not render the past or current crimes less than serious in nature.
Moreover, defendant was not subjected to an inappropriately lengthy term despite the trial court’s refusal to strike the prior convictions. He was afforded leniency when the court imposed the lower term of two years on count one and stayed the term for an enhancement allegation. Other charges or enhancements were dismissed pursuant to the negotiated plea agreement. Even with his term on count one doubled, defendant received a total sentence that was appreciably below the 13-year potential maximum specified in the plea agreement for the offenses and enhancements. (People v. Stone, supra, 75 Cal.App.4th 707, 716–717.) “ ‘[A] defendant’s sentence is also 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. Gaston, supra, 74 Cal.App.4th 310, 315, quoting from People v. Garcia, supra, 20 Cal.4th 490, 500.)
Finally, the court also did not err by failing to consider – and in fact expressed support for – defendant’s recent attempts at rehabilitation in the Choices Program and acceptance at the Delancy Street Foundation residential program. Rather, the court correctly balanced defendant’s remedial efforts with the specific aspects of the current convictions and his lengthy criminal history. We are convinced the trial court did not abuse its discretion by refusing to dismiss or set aside defendant’s prior convictions. (People v. Ortega, supra, 84 Cal.App.4th 659, 666.)
Accordingly, the judgment is affirmed.
By separate order filed this date, we also deny defendant’s petition for writ of habeas (A126772) based on alleged inadequate assistance of counsel.
We concur: Marchiano, P. J. Banke, J.