Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 186227
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This case comes to us again after we remanded for resentencing in People v. Charles. ((Jan. 4, 2007, A110195) [nonpub. opn.] (Charles I).)
We incorporate by reference herein our prior opinion in Charles I. Accordingly, as the parties are fully familiar with the facts and procedural background as set forth in Charles I, we recap them only as necessary to our discussion of issues on this appeal.
Defendant and appellant Charley Charles now appeals the indeterminate sentence of 25 years to life imposed by the trial court upon remand. We affirm.
Background
First, we review Charles I, because that case sets the context for the present appeal. In Charles I, the People appealed the sentence imposed on defendant after his 2005 jury trial convictions for being a felon in possession of a firearm, and being a felon in possession of ammunition. The People contended that the trial court erred when it granted defendant’s Romero motion and struck one of his two prior serious felony convictions from 1983 (attempted murder and arson causing great bodily injury) pursuant to Penal Code section 1385. Having struck the prior arson conviction, which left only the strike for attempted murder remaining for sentencing purposes, the trial court was precluded from sentencing defendant to life under the “Three Strikes” law.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 [holding that in Three-Strikes cases, “a court may exercise the power to dismiss granted in section 1385 [of the Penal Code], either on the court’s own motion or on that of the prosecuting attorney, subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion”].)
All further statutory references are to the Penal Code unless otherwise indicated.
Before striking the arson conviction under section 1385, the trial court “conducted a two-part Romero hearing. In the first part, the trial court considered whether it should, in the furtherance of justice, exercise its discretion to strike a prior felony conviction for purposes of the Three Strikes law. The trial court identified and considered the factors relevant to this determination, including the nature of Charles’s prior convictions and the current offense, his background and character, and his prospects for rehabilitation. In this part of the hearing, which the trial court described as ‘the discretionary motion under Romero,’ the trial court applied the precepts to be followed in ruling on a Romero motion as set forth in People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), hereinafter ‘the Williams factors.’ ” (Charles I, supra, A110195 at p. 4.) After carefully considering the Williams factors, the trial court concluded that defendant’s “ ‘sense of pervasive malignancy is something that puts him, in this [c]ourt’s estimation, quite firmly and quite squarely within the spirit and letter of the Three Strikes law,’ ” and ruled that “ ‘the [c]ourt is going to deny the . . . discretionary motion under Romero, to strike either of the strikes. The [c]ourt believes . . . that this defendant is, in fact, the type of defendant that [the Three Strikes] legislation was designed to incarcerate.’ ” (Id. at p. 5.)
Despite its finding that defendant lay squarely within the spirit of the Three Strikes law, the trial court proceeded to “ ‘the second portion of the Romero motion,’ to consider whether it was mandated to strike a prior in light of People v. Benson (1998) 18 Cal.4th 24 (Benson) and People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos). The court concluded Charles’s two 1983 priors for arson and attempted murder arose from the same act and were so closely connected that the court was ‘compelled to strike one of the prior strike convictions’ and ‘not to do so would be an abuse of discretion under [Benson and Burgos] [sic]. Despite the court’s conclusion [that] ‘Mr. Charles is the defendant for whom three strikes was designed,’ the court stated it was ‘compelled and required to follow precedent, that precedent in Burgos, regardless of the prior analysis under Romero and regardless of any personal views I may have.’ Accordingly, the trial court struck the prior arson conviction, leaving only the strike for attempted murder in place for sentencing purposes.” (Charles I, supra, A110195 at p. 5.)
We examined the legal background underpinning the trial court’s Romero decision in Charles I. We noted that in Benson, supra, the Supreme Court examined the “plain language, legislative history, and legislative purpose of the Three Strikes law” and concluded that “when a court has stayed sentence on an otherwise qualifying conviction under section 654, the stayed conviction may be treated as a strike.” (Benson, supra,18 Cal.4th at p. 26.) However, we also noted that the Benson court stressed that in cases where a prior strike conviction was stayed under section 654, a trial court still retains discretion under Romero “to strike one or more prior felony convictions under section 1385 if the trial court properly concludes that the interests of justice support such action.” (Benson, at p. 36.) Further, we observed that in regard to a trial court’s discretion under Romero, the Benson court specifically declined to “determine whether there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (Benson, at p. 36 fn. 8 [hereinafter Footnote 8].) Additionally, we noted that in Burgos, supra,117 Cal.App.4th 1209, the appellate court applied the Benson court’s dicta in Footnote 8 to reverse the trial court’s denial of a Romero motion because it concluded that the defendant’s prior convictions for attempted robbery and attempted carjacking “arose from a single criminal act, where appellant and two companions approached a man at a gas station and appellant demanded the victim’s car while one of the companions told the victim that he had a gun.” (Burgos,at pp. 1212, fn. 3, 1216-1217.)
We decided that Footnote 8 did not apply in Charles I because defendant’s two prior serious felonies did not arise from a single act. We therefore saw no need to address the separate issue of whether the trial court could have denied defendant’s Romero motion in its discretion, even if his two prior qualifying felonies had arisen from a single act. (Charles I, supra, A110195 at p. 10 & fn. 7.) As we saw it, defendant’s two prior serious felonies did not arise from a single act because “Charles engaged in a course of conduct where he purchased kerosene and sleeping tablets, took his son to a motel room, administered a sleeping tablet to his son, splashed kerosene around the bed and towards the door, lit it, closed the door and made his escape.” (Id. at p. 11.) We gleaned this information from defendant’s own testimony at his trial on the current charges for being a felon in possession of both a firearm and ammunition. Also, we further opined that “another factor militating against finding Charles committed a single act is that there were two victims of his prior crimes,” namely his son, the victim of attempted murder, and the property owner, the victim of arson. (Id. at pp. 11-12.)
In sum, we concluded: “[B]ecause Charles two prior felonies entailed a series of acts as well as multiple victims, the trial court abused its discretion by finding they arose from a ‘single act[.]’ . . . Charles’s priors did not arise ‘out of a single act by the defendant . . . [but rather] from multiple acts committed in an indivisible course of conduct.’ (Benson, supra, 18 Cal.4th at p. 36, fn. 8.) Accordingly, to the degree Footnote 8 is implicated here, it does not proscribe treating the multiple convictions as separate strikes.” (Charles I, supra, A110195 at p. 12.) In remanding the case for resentencing, we stated that because “the trial court’s exercise of discretion in the Romero determination was compromised by its focus on whether both priors arose from a single act and its ultimately erroneous determination of that issue[,] . . . the better course is to remand for a new Romero hearing so the parties can present their evidence anew in light of our holding, and the trial court can exercise its discretion” afresh in deciding whether defendant “ ‘may be deemed outside the . . . spirit [of the Three Strikes law], 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.’ (Williams, supra,17 Cal.4th at p. 161.)” (Charles I, supra, A110195 at p. 14.)
Upon remand, a new sentencing hearing was held on April 4, 2007. Relying on intervening legal authority in People v. Trujillo (2006) 40 Cal.4th 165, 179 (Trujillo) [holding that an admission attributed to defendant in a probation report “does not describe the nature of the crime of which he was convicted and cannot be used to prove that the prior conviction was for a serious felony”], defendant argued that the trial court was not bound by our conclusion in Charles I that his two priors did not arise from a single act because our conclusion was based on testimony he gave at his current trial. However, the trial court, although it found Trujillo to be “instructive with regard to certain matters,” concluded that Trujillo did not prevent it from considering the written allocution defendant rendered on June 24, 1983, when he pled guilty to attempted murder and arson. Next, the trial court concluded that under Benson, supra, it was not precluded from considering the prior arson conviction as a separate strike merely because the trial court in 1983 stayed it under section 654. Then the trial court embarked on an extremely thoughtful, detailed and exhaustive consideration and discussion of the Williams factors relevant to whether defendant fell within the spirit of the Three Strikes law. Thereafter, trial court denied defendant’s Romero motion and declined to strike one of the priors, stating: “The [c]ourt does not believe that the defendant in any manner and as to any factors falls outside the scope of the Three Strikes law. The [c]ourt finds that the defendant falls squarely within the Three Strikes law, [and] based on the analysis of all the factors that I have indicated on the record today, find[s] that he is not that individual for whom extraordinary relief should be granted. The [c]ourt finds to the contrary, that the defendant is in fact the kind of individual for whom the Three Strikes law was passed, to whom the [T]hree [S]trikes law can and should apply, and examination of the circumstances in toto does not indicate that he is in any respect an individual to whom the [c]ourt should accord any leniency, whatsoever.” Accordingly, the trial court sentenced defendant under the Three Strikes law to 25 years to life for being a felon in possession of a firearm, and a similar 25-years-to-life sentence for being a felon in possession of ammunition, the latter to be served concurrently pursuant to California Rules of Court, rule 4.425. Defendant filed a timely notice of appeal on May 18, 2007.
Discussion
1. Trujillo
The pertinent facts in Trujillo, supra, 40 Cal.4th 165, are as follows: In an information charging defendant Trujillo with robbery and assault, the People further alleged that Trujillo had two prior strike convictions within the meaning of the Three Strikes law, namely, inflicting corporal injury in violation of section 273.5, subdivision (a) and assault with a deadly weapon in violation of section 245, subdivision (a)(1). (Trujillo, supra, 40 Cal.4th at pp. 169-170.) After a jury found Trujillo guilty of assault, a bench trial followed on the prior conviction allegations, and certified copies of records were submitted into evidence showing that Trujillo committed the prior offenses. (Id. at p. 170.)
It is highly pertinent here that although “[t]he prosecutor argued that defendant’s prior convictions for inflicting corporal injury and assault with a deadly weapon were both serious felonies within the meaning of section 1192.7, and thus constituted strikes under the Three Strikes Law[,] [t]he prosecutor acknowledged that neither offense was specifically listed as a serious felony in subdivision (c) of section 1192.7 .” (Trujillo, supra, 40 Cal.4th at p. 170, italics added.) Rather, the prosecutor “argued that both offenses came within subdivision (c)(23), which defines as a serious felony ‘any felony in which the defendant personally used a dangerous or deadly weapon.’ ” (Ibid., italics added.) On the other hand, defense counsel “conceded that defendant’s prior conviction for assault with a deadly weapon ‘is clearly a strike’ because the information in that case alleged that defendant committed the assault ‘with a deadly weapon, to wit, a knife.’ The parties disagreed, however, over whether defendant’s prior conviction for inflicting corporal injury was a strike.” (Ibid., italics added.)
In order to prove that the prior conviction for inflicting corporal injury was a strike due to Trujillo’s use of a deadly weapon under subdivision (c)(23), the prosecution relied on a probation report prepared before sentencing. The report reflected that Trujillo “was interviewed on September 16, 1991, and admitted stabbing the victim with a knife during an argument, stating: ‘I stuck her with the knife.’ ” (Trujillo, supra, 40 Cal.4th at p. 170.) The trial court refused to rely on the probation report because in the prior proceeding Trujillo pleaded guilty pursuant to a plea bargain under which a second count of assault with a deadly weapon was dismissed and an allegation that he used a knife in the commission of a felony was stricken. Noting that “the prosecutor in the prior case ‘settled the case with the understanding the knife allegation would not be used . . . [and] [t]he defendant relied on that,’ ” the trial court found that the prior conviction for inflicting corporal injury was not a strike. (Id. at pp. 170-171.)
The Court of Appeal held that the trial court erred in ruling that the prior conviction for inflicting corporal injury was not a strike. Rather, the court concluded that “the striking of the allegation that defendant had personally used a deadly or dangerous weapon as part of the plea bargain in the prior proceeding did not bar the use of the underlying facts of the prior conviction in the present proceedings.” (Trujillo, supra, 40 Cal.4th at p. 171.)
After noting the opposite conclusions reached by the lower courts, the Supreme Court stated: “Although we employ different reasoning than that utilized by the trial court, we conclude that the trial court correctly declined to consider the statement attributed to defendant in the probation officer’s report in determining whether defendant had suffered a prior conviction for a serious felony as defined in section 1192.7, subdivision (c)(23).” (Trujillo, supra, 40 Cal.4th at p. 175, italics added.) The court also noted that “the information alleged that defendant’s prior conviction for inflicting corporal injury in violation of section 273.5, subdivision (a) was a serious felony within the meaning of the Three Strikes law (§ 667, subds. (b)-(i)), which, among other provisions, mandates an enhanced sentence if a defendant has one or more prior felony convictions for a serious felony as defined in section 1192.7, subdivision (c). The list of serious felonies in section 1192.7, however, is not limited ‘to specific, discrete offenses.’ [Citation.] For instance, section 1192.7, subdivision (c)(23), upon which the prosecution relied here, defines as a serious felony ‘any felony in which the defendant personally used a dangerous or deadly weapon.’ We have construed such provisions ‘as referring not to specific criminal offenses, but to the criminal conduct described therein, and applicable whenever the prosecution pleads and proves that conduct.’ [Citation.]” (Trujillo, supra, 40 Cal.4th at p. 175, italics added.)
The court turned its attention to the issue of what evidence the prosecution could offer to make the legal showing that a prior felony for inflicting corporal injury was a strike because it involved the use of a deadly weapon. Reviewing its precedents on this issue, the court noted that in People v. Guerrero (1988) 44 Cal.3d 343, it held that “in determining the truth of a prior conviction allegation, the trier of fact may ‘look beyond the judgment to the entire record of the conviction’ [citation] ‘but no further’[citation]. This rule was fair, we observed, because ‘it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.’ [Citation.] We expressly declined to address, however, ‘such questions as what items in the record of conviction are admissible and for what purpose.’ [Citation.] We did not decide in Guerrero, therefore, whether the trier of fact could consider statements attributed to the defendant in a probation report in determining the nature of the crime of which the defendant was convicted.” (Trujillo, supra,at pp. 176-177.)
The court next noted that in People v. Reed (1996) 13 Cal.4th 217, 230, it held that “a reporter’s transcript of a preliminary hearing is a part of the record of a prior conviction within the meaning of the rule announced in Guerrero. We recognized that the term ‘record of conviction’ could be ‘used technically, as equivalent to the record on appeal [citation], or more narrowly, as referring only to those record documents reliably reflecting the facts of the offense for which the defendant was convicted.’ [Citation.] We held that a reporter’s transcript of a preliminary hearing ‘falls within even the narrower definition because the procedural protections afforded the defendant during a preliminary hearing tend to ensure the reliability of such evidence. Those protections include the right to confront and cross-examine witnesses and the requirement those witnesses testify under oath, coupled with the accuracy afforded by the court reporter’s verbatim reporting of the proceedings.’ [Citation.]” (Trujillo, supra,40 Cal.4th at p. 177.)
However, on the question of whether statements attributed to a defendant in a probation report could be used to prove that a prior conviction was a strike offense, the court stated: “[W]e conclude that a defendant’s statements, made after a defendant’s plea of guilty has been accepted, that appear in a probation officer’s report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not ‘reflect[] the facts of the offense for which the defendant was convicted.’ [Citation.] We recognized in People v. McGee (2006) 38 Cal.4th 682, 691 . . ., that in determining whether a prior conviction is for a serious felony ‘ “the nature of the conviction is at issue.” ’ We explained that ‘the relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.’ [Citation.]” (Trujillo, supra,40 Cal.4th at p. 179.)
“A statement by the defendant recounted in a post conviction probation officer’s report[,]” the court continued, “does not necessarily reflect the nature of the crime of which the defendant was convicted. In the present case, for example, the prosecution did not attempt to prove that defendant used a knife and, instead, entered into a plea bargain in which it dismissed the allegation that defendant used a deadly or dangerous weapon and committed an assault with a deadly weapon. The prosecution could not have compelled defendant to testify, and thus could not have used defendant’s subsequent admission that he stabbed the victim to convict him. Once the court accepted his plea, defendant could admit to the probation officer having stabbed the victim without fear of prosecution, because he was clothed with the protection of the double jeopardy clause from successive prosecution for the same offense. [Citation.] Defendant’s admission recounted in the probation officer’s report, therefore, does not describe the nature of the crime of which he was convicted and cannot be used to prove that the prior conviction was for a serious felony.” (Trujillo, supra,40 Cal.4th at p. 179.) Nevertheless, although the court rejected the use of admissions recounted in a probation report to establish that a prior is a serious felony, the court added: “We agree with the concurring and dissenting opinion that information that comes to the court’s attention after it has accepted a plea of guilty may be considered by the trial court in deciding such matters as whether to withdraw its prior approval of the plea [citation] and, of course, in determining the appropriate sentence.” (Ibid., italics added.)
2. Analysis
Defendant contends Trujillo effectively abrogates our Benson-Burgos analysis in Charles I that his two strike priors did not arise from a single act. We disagree. As our lengthy exposition of the case shows, Trujillo does not address, and therefore does not control, the issue before us. In Trujillo, the court addressed the question of whether a defendant’s admission recounted in a probation report prepared post conviction may be used to determine the legal question of whether a prior conviction qualified as a strike within the meaning of the Three Strikes law (§ 667, subds. (b)-(i)). This issue arose because the parties, although they did not dispute the fact of the prior conviction for inflicting corporal injury, did dispute whether it was a serious felony under section 1192.7, subdivision (c)(23)—ire., whether it was a strike because it was a felony “ ‘in which the defendant personally used a dangerous . . . weapon.’ ” (Trujillo, supra,40 Cal.4th at p. 170.) In other words, because Trujillo’s prior for inflicting corporal injury was not specifically listed as a qualifying prior in section 1192.7, it was necessary to examine “ ‘the criminal conduct described therein’ ” and for the prosecution to prove that conduct in order to establish it as a strike. (Trujillo, supra, at p. 175.) As the court stated, the relevant inquiry in such a case “ ‘is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted.’ [Citation.]” (Id. at p. 179.)
There were no such considerations in this case, and consequently no Trujillo analysis was called for. The jury found true the allegation that defendant stood convicted of two prior felonies. More importantly, and unlike Trujillo, defendant did not contend at sentencing that his two prior felonies were not serious felonies under the meaning of the Three Strikes law (§ 667, subds. (b)-(i)). Indeed, such a contention would have been absolutely futile, because, unlike Trujillo, both of defendant’s prior felonies are listed as qualifying strikes under section 1192.7, subdivision (c) and section 667.5—attempted murder (§§ 667.5, sud. (c)(12), 1192.7, subds. (c)(1) & (c)(39)); arson (§§ 667.5, sud. (c)(10), 1192.7, sud. (c)(14).) Thus, at sentencing it was legally established that defendant had two prior qualifying strikes. Accordingly, unlike Trujillo, in this case there was no need to “ ‘look beyond the judgment to the entire record of conviction’ [citation]” (Trujillo, supra, 40 Cal.4th at p. 177) in order to “ ‘determine the nature or basis’ ” of the prior conviction. (Id. at p. 179, italics omitted.) In sum, Trujillo sets the parameters for a sentencing court’s inquiry into the nature or basis of a prior conviction in order to make the legal determination of whether the prior qualifies as a serious felony for purposes of the Three Strikes law. No such legal determination was required in this case because both of defendant’s prior convictions are specifically listed as qualifying priors under the applicable statutes.
Unlike the court in Trujillo, therefore, we are not reviewing a lower court’s legal determination that a prior felony conviction constitutes a strike. Rather, we must decide whether the trial court’s decision to deny defendant’s Romero motion was an abuse of discretion. (People v. Stone (1999) 75 Cal.App.4th 707, 716.) This standard is a highly deferential one, which requires appellant to demonstrate that the trial court’s decision was arbitrary, capricious or based on improper reasons. (People v. Gillespie (1997) 60 Cal.App.4th 429, 434.) It is not enough to show that reasonable people might disagree on whether to strike a prior conviction; when the record demonstrates the trial court considered the relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
Defendant provides little to satisfy this exacting standard of review. Indeed, defendant does not challenge in any way the trial court’s thoughtful and considered exposition of the Williams factors employed in deciding the propriety of a Romero motion, or its conclusion that in light of those factors he falls squarely within the spirit of the Three Strikes law. Rather, by invoking Trujillo, defendant simply attempts to revisit our Benson-Burgos determination that his prior strike convictions did not arise from a single act. But as we demonstrated above, Trujillo applies when a sentencing court is faced with the legal determination of whether a prior conviction qualifies as a serious felony for purposes of the Three Strikes law. And as we also determined above, that is not an issue here and so Trujillo is inapplicable. (Inns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered”].)
Rather, what we have here is a factual determination going to the sentencing issue of whether defendant deserves to have one of his serious prior felonies stricken “in furtherance of justice.” (Romero, supra, 13 Cal.4th at p. 504.) Under these circumstances, we think it entirely appropriate that in the context of a Romero motion, defendant’s testimony at his current trial should be considered in making the factual determination of whether his prior strikes arose from a single act. Indeed, such testimony has all the procedural safeguards the Trujillo court noted as being necessary “to ensure the reliability of such evidence.” (Trujillo, supra, 40 Cal.4th at p. 177.) Further, the Trujillo court acknowledged that information coming to light after the entry of the prior conviction “may be considered by the trial court . . . in determining the appropriate sentence.” (Id. at p. 179.)
In sum, we conclude that our Benson-Burgos determination in Charles I is not undermined by Trujillo. Accordingly, we affirm our prior conclusion: Because defendant “engaged in a course of conduct where he purchased kerosene and sleeping tablets, took his son to a motel room, administered a sleeping tablet to his son, splashed kerosene around the bed and towards the door, lit it, closed the door and made his escape” (Charles I, supra, A110195 at p. 11), his “priors did not arise ‘out of a single act by the defendant . . . [but rather] from multiple acts committed in an indivisible course of conduct.’ (Benson, supra, 18 Cal.4th at p. 36 fn. 8.) Accordingly, to the degree Footnote 8 is implicated here, it does not proscribe treating the multiple convictions as separate strikes.” (Charles I, supra, A110195 at p. 12.)
In Charles I, we also concluded that another factor militating against a finding that defendant’s priors arose from a single act was that his priors involved multiple victims [defendant’s son was the victim of attempted murder and the property owner was a victim of arson]. (Charles I, supra, A110195 at pp. 11-12.) Defendant now challenges our multiple-victim analysis on the grounds that because the sentencing court in the 1983 case stayed the arson with great bodily injury count under section 654, “it must have made a finding that there were not two victims.” However, although the trial court in the 1983 case stayed defendant’s arson conviction, we concluded in Charles I that “for the different purpose of a Romero determination in the current action, we cannot conceive how Charles’s actions can be said to constitute a ‘single act.’ ” (Charles I, supra, A110195 at p. 11.) Moreover, under the facts of the 1983 case, the trial court was certainly not obligated to stay the arson count. (See, erg., Neal v. State of California (1960) 55 Cal.2d 11, 20 [discussing the applicability of section 654 and stating: “The purpose of the protection against multiple punishment is to [e]nsure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence . . . by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person.”].) In sum, even though the existence of multiple victims in the 1983 offenses is not essential to our determination that those offenses did not arise from a single act, we still think it is a valid consideration.
However, we note that even if Trujillo was applicable here, it would not change the outcome. That is because the trial court stated for sentencing purposes that it considered the allocution made by defendant prior to his 1983 conviction. The trial court stated: “The allocution in this case made by defendant was made on June 24th, 1983 and it was on page 2 of the guilty plea in Superior Court, the document in which the defendant indicated his understanding of his constitutional rights, those which he was surrendering by way of guilty plea, and the admonition to him with regard to the maximum penalty that he faced. [¶] It is the same date that is reflected on the Abstract as the date of conviction, and the [c]ourt has no reason to believe that it was executed on any other date. And I have the documents in front of me which were part and parcel of the documents received in this case.” In his allocution offered as the basis for his guilty plea to the 1983 offenses, defendant stated: “On 3-3-83 in the County of Orange, I attempted to kill David C. Rothenburg by causing the room in which he was staying to burn. Said fire was set by me by igniting kerosene in the room. The act caused great bodily injury.” The trial court’s consideration of defendant’s allocution does not run afoul of Trujillo because it was offered as the basis for his guilty plea to the 1983 offenses and therefore it constitutes “part of the record of the prior conviction” and reflects “ ‘the facts of the offense for which the defendant was convicted.’ [Citation.]” (Trujillo, supra, 40 Cal.4th at p. 179.) Defendant’s 1983 allocution is indicative of an indivisible course of conduct rather than a single act because it shows defendant set kerosene in the room, ignited it, burned a room down and caused great bodily injury to his son in the process. Accordingly, the trial court did not abuse its discretion by declining to grant defendant’s Romero motion under a Benson-Burgos theory that both his priors arose from a single act.
For reasons unknown, the allocution referred to by the trial court was not originally included in the record, so we ordered supplementation of the record sea sponge to include it.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Pollack, J.