Opinion
D071967
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ERWYN L. ANDERSON, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Cohen Butler and Marilyn L. George, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCN362591, SCN349424) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Cohen Butler and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Erwyn Anderson appeals a judgment denying his motion under Penal Code section 1385, subdivision (a), to strike his three strike convictions from 1991 and 1992. Anderson contends that the trial court abused its discretion because his prior strikes were outside the spirit of the three strikes law. We disagree and, therefore, affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Anderson received his first three strikes in 1991 and 1992 for three separate instances of robbery (§ 211). In 2015, Anderson received his fourth strike for assault resulting in great bodily injury (§§ 245, subd. (a)(4), 1192.7, subd. (c)(8)). Anderson pleaded guilty and received 365 days in local jail plus three years of felony probation in lieu of a life sentence under the three strikes law (§ 667). As a condition of his felony probation, Anderson was ordered to stay away from and have no contact with his girlfriend, M.H.
On August 3, 2016, motorists observed Anderson repeatedly beating M.H. in the head with a tire iron on the side of the road. Anderson was under the influence of methamphetamine and heroin. Motorists eventually subdued Anderson and restrained him until police arrived.
In count 1, Anderson was charged with attempting to murder M.H. (§§ 664, 187, subd. (a)). He also was alleged to have personally inflicted great bodily injury upon M.H. (§ 12022.7, subd. (a)). In count 2, he was charged with assaulting M.H. with a deadly weapon and personally inflicting great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)). In count 3, he was charged with committing a battery against M.H. resulting in serious bodily injury (§ 243, subd. (d)). He was alleged to have personally inflicted great bodily injury upon M.H. (§ 1192.7, subd. (c)(8)). In count 4, Anderson was charged with violating a protective order issued as a condition of probation in a case involving domestic violence (§ 166, subd. (c)(1)). It was alleged he had been convicted of violating a protective order within the last seven years (§ 166, subd. (c)(4)). In count 5, Anderson was charged with unlawfully committing an assault upon W.S. with a deadly weapon and instrument (§ 245, subd. (a)(1)).
W.S. is one of the motorists who ultimately subdued Anderson. --------
On February 16, 2017, the jury found Anderson guilty of counts 2 and 3 and found true the allegations that he personally inflicted great bodily injury and personally used a deadly weapon. In count 4, the jury found him guilty of violating a protective order and that it involved an act of violence. In count 5, the jury found him not guilty of assault with a deadly weapon upon W.S. and not guilty of the lesser included offense of simple assault. The jury was unable to reach a unanimous verdict on the attempted murder charge in count 1 or on the lesser included offense of attempted voluntary manslaughter. The trial court declared a mistrial as to count 1 and granted the People's subsequent motion to dismiss that count.
The trial court found Anderson had four prior strikes and sentenced him to 13 years plus 25 years to life.
DISCUSSION
Anderson contends that the trial court abused its discretion by failing to dismiss the prior strikes from 1991 and 1992 under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and section 1385. He asserts the age of the priors, disproportionate punishment, and his history of controlled substance addiction and mental illness serve as reasons to strike the 1991 and 1992 convictions.
The purpose of the three strikes law is to "ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felony offenses." (§ 667, subd. (b).) If a defendant is convicted of a felony and has had one, two, or more prior convictions that qualify as strikes, the defendant will be sentenced for the current offense under the three strikes law. (§ 667, subd. (c).) Although prior strike convictions are serious (§ 1192.7, subd. (c)) or violent felonies, the current conviction that invokes the three strikes law is based on the commission of any felony. (§ 667, subd. (c).) If the defendant has two or more serious and/or violent felony convictions, he or she is to receive a sentence of life imprisonment. (§ 667, subd. (e)(2).)
Section 1385, subdivision (a), allows a trial court to exercise its discretion to dismiss a strike conviction allegation in the furtherance of justice. The three strikes initiative was intended to restrict a trial court's discretion in sentencing repeat offenders. (Romero, supra, 13 Cal.4th at p. 528). Although Romero established a sentencing norm, it also carefully circumscribed the trial court's power to depart from this norm by requiring the court to explicitly justify its decision to do so. The law creates a strong presumption that any sentence conforming to these norms is both rational and proper. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
To dismiss a prior strike allegation, the court must analyze "whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and . . . should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) Dismissing a prior serious felony conviction allegation is an extraordinary exercise of discretion and is therefore reserved only for extraordinary circumstances. (People v. Philpot (2004) 122 Cal.App.4th 893, 905.) Only by extraordinary circumstances may a career criminal be deemed to fall outside the spirit of the three strikes sentencing scheme. (Carmony, supra, 33 Cal.4th at p. 378.)
A trial court's decision to deny a Romero motion is reviewed for abuse of discretion. A trial court does not abuse its discretion unless the decision to deny is so irrational or arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at pp. 376-377.) A trial court will abuse its discretion in not dismissing a prior felony conviction allegation only in very limited circumstances. (Id. at p. 378.) Where the trial court demonstrates a balancing of relevant facts and circumstances and has reached an impartial decision within the spirit of the three strikes law, the reviewing court shall affirm the trial court's ruling, even if the appellate court might have ruled differently in the first instance. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) The trial court is presumed to have considered all the relevant factors in the absence of an affirmative record to the contrary. (Id. at p. 310.)
Anderson moved to dismiss the prior strikes because they were remote in time, punishment under the three strikes law was disproportionate to the present offense, and Anderson suffers from drug addiction and mental illness. During the sentencing and Romero hearing on March 29, 2017, counsel asked the trial court to strike the prior strikes from 1991 and 1992 and sentence Anderson as a second strike offender. The court reviewed Anderson's personal and criminal history under the Romero criteria and found nothing extraordinary to justify exempting him from the sentencing scheme.
First, the trial court did not arbitrarily deny dismissal of Anderson's prior strikes--despite their remoteness--given the violent nature of Anderson's current offense. In People v. Bishop (1997) 56 Cal.App.4th 1245, 1248 (Bishop), the trial court dismissed the defendant's two prior violent strikes given their remoteness of 17 to 20 years and the nonviolent nature of the defendant's current offense--petty theft. In contrast, lenient punishment for Anderson's violent, current offense would not " 'stop the revolving door' " of Anderson's criminal activity. (Ibid.)
Moreover, punishment under the three strikes law is proportionate to Anderson's present offense. Indeed, the three strikes law exists for repeat offenders like Anderson. (See § 667, subd. (b).) Anderson's 2015 conviction qualified him for a life sentence, yet he was granted probation. The trial court acted well within its discretion to conclude a grant of leniency would not be in the interest of justice.
Lastly, the trial court rationally considered Anderson's history of drug addiction and mental illness as mitigating factors in denying dismissal of his prior strikes. First, "drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Anderson committed his felonies during periods of admitted drug use; likewise, he received repeated opportunities to pursue treatment. Second, a trial court weighs mitigating and aggravating factors in determining sentencing. (Bishop, supra, 56 Cal.App.4th at p. 1250.) The trial court could have rationally placed more weight on the nature of Anderson's violent, current crime and number of his prior convictions than on his drug addiction. (Id. at pp. 1250-1251 ["[O]nce a defendant has qualified for three strikes sentencing, the number of his prior convictions operates as a factor in aggravation, as may the nature of his prior and present crimes . . . ."].)
Given Anderson's lengthy criminal history and his failures on probation, he fell within the spirit of the three strikes law. He has not shown the trial court's denial of his motion to strike the prior convictions was arbitrary or irrational. The court did not abuse its discretion in denying Anderson's motion.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. GUERRERO, J.