Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR908383
SIMONS, J.
Dion Davis (appellant) appeals his conviction by jury trial of second degree robbery (Pen. Code, § 211) (count 1), grand theft of the person (§ 487, subd. (c)) (count 2), and petty theft with a prior conviction (§§ 666, 484, subd. (a)) (count 3). In a bifurcated court trial, the court found true three prior strike allegations (§§ 1170.12, subd. (a)-(d), 667, subd. (d)), and four prior prison term allegations (§ 667.5, subd. (b)). Appellant contends his robbery and grand theft convictions are based on a legally insufficient theory, and his counsel was ineffective in failing to object thereto. He also contends the court erroneously failed to give a unanimity instruction, improperly instructed on reasonable doubt and committed sentencing error. The parties agree appellant’s convictions on grand theft and petty theft with a prior must be reversed because they are necessarily included offenses of appellant’s robbery conviction. We concur and reverse counts 2 and 3. We otherwise affirm.
All undesignated section references are to the Penal Code.
Appellant was sentenced to 38 years to life in state prison.
Given our reversal of appellant’s grand theft and petty theft with a prior conviction, we need not address his claims that his grand theft conviction was based on a legally inadequate theory and that the court’s grand theft jury instructions were inadequate.
BACKGROUND
On the evening of February 20, 2006, 13-year-old B.C. (the victim) went to a Clearlake Wal-Mart store with his friend, C.J., and C.J.’s mother to buy an MP3 player. Near the Wal-Mart front door, appellant, a 39-year-old acquaintance of the victim, asked the victim if he had any money. The victim said, “No,” although he had $100 in his possession. The victim had obtained the $100 from an ATM machine using his grandmother’s ATM card without her permission. On a prior occasion the victim told appellant that he had the ATM card and could use it. The victim then walked to the electronics department to purchase an MP3 player. At the electronics department cash register, appellant again approached the victim, told the victim to give him some money, and grabbed the victim’s arm. Appellant told the victim to give him money or he would take the victim’s jacket and get the money himself. The victim was afraid that appellant would assault him if he did not give appellant anything. Appellant also twice asked the victim to buy him a box of candy which appellant was holding. After the victim said, “No,” appellant reached inside the victim’s jacket, pulled out $40, swung the victim’s arm backward and walked off. On cross-examination the victim said he did not remember whether he paid for the candy.
Wal-Mart sales associate Nicholas Barrell testified he helped the victim purchase the MP3 player. While Barrell was ringing it up, but before totaling the transaction, appellant approached, placed the candy on the counter and said, “This too.” Appellant repeated the demand after the victim protested. After the victim again protested, appellant said, “I’ll strip you and I’ll take you out and blast you right here.” When the victim told appellant that if appellant touched him he would call the police, appellant said the police would not do anything. Barrell said the victim appeared “very frightened and generally threatened” and appellant pushed out his chest and looked “extremely angry.” The victim eventually relented and paid for the candy. Barrell turned away to retrieve the victim’s change from the cash register. When he turned back, Barrell saw appellant’s hand move from the victim’s “general vicinity” and then put green-colored paper in appellant’s pocket. Appellant then left the electronics area. Barrell said three to five minutes transpired between the time appellant put the candy on the counter and said “This too” to the victim, and the time appellant left the electronics area. That same day Barrell gave a statement to police.
On cross-examination Barrell said that the victim paid for the candy, but Barrell could not remember whether the victim handed it to appellant or appellant removed it from the counter. Barrell could not recall whether he placed the candy in the bag with the MP3 player after ringing up the transaction for those two items.
According to 16-year-old C.J., her younger brother Andrew brought a box of candy up to the electronics counter where she was standing with the victim while he purchased the MP3 player. C.J. said the victim intended to buy the candy and share it with Andrew. After appellant took the money from the victim’s pocket, appellant said he wanted the candy that the victim had purchased and took it out of the bag on the counter which also contained the MP3 player. C.J. also said the victim told appellant if he wanted the candy he could take it.
Clearlake Police Officer Hobbs was dispatched to the Wal-Mart following the incident. As he approached the store’s entrance, Hobbs saw appellant leaving the store. When appellant made eye contact with Hobbs, appellant turned and jogged in the opposite direction. Appellant was later detained. A search turned up two $20 bills in his right front pants pocket and a box of “Mike and Ikes” candy.
Appellant’s tape-recorded interview with police on the night of the incident was played for the jury. Appellant told police he “jokingly” asked the victim to “give [him] some money,” and that he knew the victim stole money from his grandparents. Appellant said when he noticed the victim seemed very frightened, he “eased up off of him” and jokingly said “I’m gonna black mail you,” meaning, he would tell the victim’s grandparents the victim had stolen their money. Appellant said the victim offered to give him $40 to “just be quiet.” Appellant said he took the money and walked away.
The Defense
Fifteen-year-old B.T. testified she and several others went with appellant to the Wal-Mart store on the night in question. B.T. saw appellant pick up a box of Mike and Ikes candy from a bucket near the electronics department and walk over to the cash register where a boy was standing. Appellant talked to the boy about giving appellant a dollar. The boy told appellant to “hold on” and then gave him two $20 dollar bills. B.T. did not see appellant grab, touch or put his hand inside the pocket of the young man’s clothing.
Delfina Gonzales, appellant’s fiancée, was also with appellant at the Wal-Mart store on the night in question. She testified that appellant did not touch, grab or push the victim, or ask him for money. She did see the victim reach into his pocket, hand appellant some money and tell appellant to “just leave him alone.” Thereafter, appellant walked away with some candy that Gonzales did not see him pay for. About two weeks prior to the incident, the victim told Gonzales he took his grandparents’ ATM card and had used it to withdraw their money.
The prosecutor argued appellant committed robbery and grand theft by taking cash from the victim’s pocket and taking candy from the victim’s immediate presence. The thrust of the defense was that the victim gave appellant the cash and the candy so appellant would not tell the victim’s grandmother the victim had withdrawn money with their ATM card.
DISCUSSION
I. Neither the Prosecution’s Robbery Theory nor the Robbery Instructions Were Inadequate
Appellant contends his robbery conviction must be reversed because the prosecution relied on the legally inadequate theory that appellant took candy from the victim. In particular, appellant argues no evidence was presented that he took the candy from the victim’s possession or immediate presence, as required for robbery. He contends the error was compounded by the jury instructions given, which failed to define the terms “possession” and “immediate presence.” Appellant concedes the prosecution also properly relied on the legally sufficient robbery theory that appellant took cash from the victim. However, he argues that reversal is required because the record does not affirmatively demonstrate that the jury necessarily convicted him of taking cash from the victim.
Section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Two aggravating factors are necessary to elevate theft by larceny (§ 484, subd. (a)) to robbery: (1) the taking must be accomplished by force or fear; and (2) the property must be taken from the victim or in his presence. (People v. Gomez (2008) 43 Cal.4th 249, 254-255.) All of the elements must be satisfied before the crime of robbery is completed. (Id. at p. 254.) At issue here is the second aggravating factor.
In People v. Bekele (1995) 33 Cal.App.4th 1457 (overruled on other grounds in People v. Rodriguez (1999) 20 Cal.4th 1, 13-14), this court explained that the possession required for robbery exists if the person alleged to be the victim owns the property taken, has actual possession of it, or acts in some representative capacity with respect to the owner of the property. (Bekele, at pp. 1461-1462.) The person must have express or implied authority over the item taken. (Id. at p. 1460; accord, People v. Jones (1996) 42 Cal.App.4th 1047, 1054.) The “ ‘ “person or immediate presence” ’ requirement of section 211 ‘describes a spatial relationship between the victim and the victim’s property, and refers to the area from which the property is taken.’ ” (Gomez, supra, 43 Cal.4th at p. 257, quoting People v. Frye (1998) 18 Cal.4th 894, 955-956.) “ ‘ “ ‘[A] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.’ ” [Citations.]’ [Citation.] Thus, ‘immediate presence’ is ‘an area over which the victim, at the time force or fear was employed, could be said to exercise some physical control’ over his property. [Citation.] ‘Under this definition, property may be found to be in the victim’s immediate presence “even though it is located in another room of the house, or in another building on [the] premises.” [Citation.]’ ” (Gomez, at p. 257, quoting People v. Hayes (1990) 52 Cal.3d 577, 626-627.) Since robbery is a continuing offense, the “immediate presence” element may arise at any time during the period from caption to asportation. (Gomez, at p. 258.)
Appellant appears to argue that the prosecution’s robbery theory was legally inadequate as to the candy because there is no evidence that he took the candy from the victim’s person, possession or immediate presence. Instead, he asserts the evidence established the victim purchased candy appellant had placed on the counter, and therefore the victim never had possession of it. Appellant’s argument lacks merit.
Contrary to appellant’s assertion, the record contains substantial evidence to support the prosecution’s theory that appellant took candy possessed by the victim from the victim’s immediate presence. The record establishes the following: Appellant approached the victim at the electronics counter, demanded the victim give him some money and purchase a box of candy for him, and grabbed the victim’s arm. After the victim refused appellant’s demands, appellant threatened to “strip” him and “blast” him. Appellant grabbed $40 from the victim’s jacket pocket then swung the victim’s arm back. After the victim paid for the candy, appellant took it from either the electronics counter where they were standing or from the bag which also contained the MP3 player purchased by the victim. It is not entirely clear from the record whether appellant grabbed the money from the victim’s pocket before or after taking the candy the victim purchased. In any case, having paid for the candy, the victim was its owner and therefore had possession of it, regardless of whether the candy was initially brought to the electronics counter by appellant. The candy was then taken by appellant either from the counter or the bag on the counter, both of which were areas so within the victim’s “ ‘ “ ‘reach, inspection, observation or control, that he could, if not overcome by violence, or prevented by fear, retain his possession of it.’ ” ’ ” (Gomez, supra, 43 Cal.4th at p. 257.) Therefore, at the point the candy was taken, it was in the victim’s immediate presence.
Appellant next asserts that had the court instructed the jury as to the elements of “possession” and “immediate presence,” it “would have disabused the jury of the notion that they could convict appellant of robbery based on a scenario where [the victim] paid for candy which had been taken from a store display.” In his reply brief, he argues that the jury was not fully capable of determining whether he took the candy from the victim’s possession or immediate presence without the benefit of these instructions. He argues “[w]hile there may be no sua sponte duty to define ‘possession’ and ‘immediate presence’ terms, failure to do so is prejudicial error when the prosecutor has argued a legally inadequate theory of conviction.” Having previously concluded that the prosecution’s theory was not legally inadequate, we address only whether the trial court had a sua sponte duty to instruct on “possession” and “immediate presence.”
We assume the “store display” is a reference to testimony that appellant took the candy out of a bucket before bringing it to the cash register and demanding appellant pay for it.
The court instructed the jury on robbery with CALCRIM No. 1600 as follows:
“The defendant is charged with robbery in count 1 of the First Amended Information.
“To prove the defendant is guilty of this crime, the People must prove that:
“1. The defendant took property that was not his own;
“2. The property was taken from another person’s possession and immediate presence;
“3. The property was taken against that person’s will;
“4. The defendant used force or fear to take the property or to prevent the person from resisting;
“AND
“5. When the defendant used force or fear to take the property, he intended to deprive the owner of it permanently.
“The defendant’s intent to take the property must have been formed before or during the time he used force or fear. If the defendant did not form this required intent until after using the force or fear, then he did not commit robbery.
“A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be short.
“The property taken can be of any value, however slight.
“Fear, as used here, means fear of injury to the person himself or herself.
“An act is done against a person’s will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act.”
Appellant did not request, and the trial court did not instruct the jury with the following bracketed CALCRIM No. 1600 robbery instruction regarding “immediate presence”: “[Property is within a person’s immediate presence if it is sufficiently within his or her physical control that he or she could keep possession of it if not prevented by force or fear.]”
Similarly, appellant did not request and the trial court did not instruct the jury with the following bracketed CALCRIM No. 1600 robbery instruction regarding “possession”: “[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]”
“The trial court must instruct even without request on the general principles of law relevant to and governing the case,” including “instructions on all of the elements of a charged offense.” (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) “The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury’s understanding of the case. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1200.) Once the court has instructed on the general principles of law, a defendant must request additional instructions if he or she believes amplification or clarification is necessary. (People v. Maury (2003) 30 Cal.4th 342, 425-426.) The court does not have a sua sponte duty to instruct the jury as to words or phrases that are commonly understood and not used in a “technical or legal sense.” (People v. Navarette (2003) 30 Cal.4th 458, 503.)
In Navarette, the defendant was convicted of the capital murder, robbery and burglary of one neighbor; the capital murder, burglary and attempted robbery of a second neighbor; and second degree robbery and battery with serious bodily injury of a third neighbor. (Navarette, supra, 30 Cal.4th at p. 479.) Although the trial court instructed the jury on the elements of robbery pursuant to CALJIC No. 9.40, the defendant argued that absent a request, the court was required to instruct the jury as to the meaning of the phrase “immediate presence,” which appeared in the CALJIC No. 9.40 instruction given. (Navarette, at pp. 502-503.) In particular, the defendant asserted that the court should have instructed that “immediate presence” “refers to property that is so within a victim’s control that violence or fear is necessary to wrest it away.” (Id. at p. 503.) The Supreme Court disagreed. It concluded that the phrase “immediate presence” was sufficiently clear in the context of the case, that no further clarification was necessary. (Ibid.) The court also concluded the defendant did not explain how his suggested clarifying instruction would have caused the jury to reach a different result since the evidence indicated the defendant took the victim’s property from within her home. (Ibid.)
As in Navarette, we conclude that in the context of this case, the phrase “immediate presence” required no clarification. The evidence indicates that while appellant and the victim were at the Wal-Mart electronics counter, appellant took the victim’s candy either from the counter or from a bag on the counter. Given those facts, we cannot conceive how providing the jury with the CALCRIM No. 1600 instruction on “immediate presence” would have led the jury to reach a different result.
We also conclude that given the evidence in this case, no clarification of the plain meaning of “possession” was required. The dictionary defines “possession,” in relevant part as: “1a: the act of having or taking into control b: control or occupancy of property without regard to ownership c: OWNERSHIP d: . . . 2: something owned, occupied, or controlled: PROPERTY.” (Webster’s Collegiate Dict. (11th ed. 2003) p. 968, col. 2.) The only significant difference between the dictionary definition of “possession” and the CALCRIM No. 1600 instruction on “possession” is that the dictionary definition is roughly equivalent to actual possession, while the CALCRIM instruction informs the jury that possession may be constructive. However, constructive possession of the candy is not at issue here. The evidence established that after the victim paid for the candy, appellant took it from an area to which the victim had direct access. Once again, based on the record before us, we cannot conceive that the jury would have reached a different result had the court instructed on the meaning of “possession” pursuant to CALCRIM No. 1600.
II. No Unanimity Instruction Was Required
Appellant next contends that because his single robbery conviction in count 1 could have been based on the taking of the victim’s money or the taking of the victim’s candy, the court was required to instruct the jury sua sponte on jury unanimity pursuant CALCRIM No. 3500, or a similar instruction. Appellant argues the money and candy takings were not an indivisible course of conduct with identical defenses. He asserts the two takings were discrete events because the evidence showed the money was taken from the victim’s pocket, while the candy was taken from the electronics department counter or from a bag on the counter.
CALCRIM No. 3500 (2008 ed.) provides, in relevant part: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
The People argue the court had no duty to give the unanimity instruction because the taking of the money and candy formed a continuous course of conduct, and alternatively, the two acts of taking were based on one discrete criminal event.
A jury verdict in a criminal case must be unanimous, and the jury must agree unanimously that the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (Ibid.) Typically, the requirement of jury unanimity applies to acts that could have been charged as separate offenses. (Maury, supra, 30 Cal.4th at p. 422.) “A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. [Citation.]” (Id. at p. 423.) “ ‘This requirement of unanimity as to the criminal act “is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.]” (People v. Norman (2007) 157 Cal.App.4th 460, 464-465.)
A unanimity instruction is not required where the multiple acts are properly viewed as continuous conduct by the defendant. (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) This “continuous conduct” exception may be applied in two situations: when the offenses are so closely connected in time that they form part of a single transaction, and when an examination of the statutory language of the charged offense reveals that the Legislature intended to punish an entire course of wrongful conduct. (Id. at p. 115.) “The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
Courts have repeatedly held that robbery involving multiple items of property does not give rise to discrete criminal acts and therefore a unanimity instruction is not required sua sponte. In Stankewitz, the defendant and two accomplices commandeered the victim’s car. Once inside the car, defendant threatened the victim with a gun, one of the accomplices demanded money from the victim and the victim gave money and a wristwatch to the accomplices. (Stankewitz, supra, 51 Cal.3d at pp. 81-82, 100.) The Supreme Court held any error in failing to give a unanimity instruction was harmless because the evidence demonstrated that the defendant was guilty of robbery with respect to each of the items taken from the victim and the inference was inescapable that both takings were accomplished by the force or fear presented by the defendant’s gun. (Id. at p. 100.) The court concluded, “Whatever slight differences inhered in the defenses offered by [the] defendant to the takings of the victim’s car, watch and money were thus without significance.” (Ibid.)
In People v. Turner (1983) 145 Cal.App.3d 658 (disapproved on other grounds in People v. Newman (1999) 21 Cal.4th 413, 415, 422, fn. 6, and People v. Majors (1998) 18 Cal.4th 385, 410-411), the gun-wielding defendant commandeered the victim’s car, and thereafter, while inside the car, took four of the victim’s gold chains and $40 from her wallet. (Turner, at p. 668.) The Turner court concluded the specific acts fell within the continuous conduct exception. “Although Turner’s driving off with the car occurred after the taking of the other items, it was part of one course of continuous conduct all occurring within a brief period of time against a single victim. Here, the multiple acts were just alternate ways of proving a necessary element of the same offense. [Citation.]” (Id. at p. 681.) In any event, any error in failing to give a unanimity instruction was harmless.
In this case, the record shows that within a three- to five-minute period, while standing at the Wal-Mart electronics counter, appellant threatened the victim with harm, forcibly took $40 from the victim’s pocket, and then took candy that the victim had paid for from the counter or a bag on the counter. Appellant’s acts were so related in time and place as to be an indivisible transaction for which he was criminally responsible. Moreover, despite his claim to the contrary, appellant’s defense to taking the money and the candy was the same. That is, appellant argued there was no force or fear and the victim voluntarily turned over the money and candy to appellant so that appellant would not tell the victim’s grandparents that the victim had used their ATM card. We conclude the trial court did not err in failing to sua sponte give a unanimity instruction.
III. Counts 2 and 3 Must Be Reversed
Appellant contends, and the People concede, that the trial court should have reversed the convictions for grand theft (count 2) and petty theft with a prior (count 3) because they are necessarily included offenses of robbery (count 1).
The court sentenced appellant as follows: It imposed a 25-years-to-life term on the count 1 robbery, with five-year terms for each of the two prior serious felony conviction enhancements (§ 667, subd. (a)(1)), and one-year terms for each of the three prior prison term enhancements (§ 667.5, subd. (b)). The court stayed the sentences on counts 2 and 3 pursuant to section 654.
Generally, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. Section 954 generally permits multiple conviction, while section 654 prohibits multiple punishment for the same “act or omission.” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) “When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.” (Id. at p. 1227.) However, multiple convictions may not be based on necessarily included offenses. (Ibid.) “[I]f the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (Ibid.) Both grand theft and petty theft are necessarily included offenses of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 694-697, overruled on other grounds in Reed, at pp. 1228-1229.) A defendant may not be convicted of both robbery and grand or petty theft based upon the same conduct. (Ortega, at p. 699.) If the evidence supports the verdict as to the greater offense, the conviction on the lesser included offense must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763.)
The parties are correct that the theft convictions in counts 2 and 3 are based on the same course of conduct as the robbery, appellant’s taking of the victim’s money and candy. Consequently, we agree that appellant’s convictions on counts 2 and 3 must be reversed.
IV. The Dewberry Error Was Harmless
Appellant contends the court erred in failing to sua sponte instruct the jury pursuant to People v. Dewberry (1959) 51 Cal.2d 548 and CALCRIM No. 3519 that if it had a reasonable doubt as to whether he was guilty of the greater offense of robbery or a lesser offense of theft, it had to give him the benefit of the doubt and find him guilty of the lesser offense. The People concede the court erred in failing to give a Dewberry instruction, but argue the error is harmless.
CALCRIM No. 3519 (2008 ed.) provides in relevant part: “If all of you find that the defendant is not guilty of a greater charged crime, you may find (him/her) guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct.”
In Dewberry, the Supreme Court held: “[W]hen the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [Citations.]” (Dewberry, supra, 51 Cal.2d at p. 555.) In any case involving a lesser included offense, a “Dewberry instruction” must be given sua sponte. (People v. Crone (1997) 54 Cal.App.4th 71, 76.) This is true regardless of whether both the greater and lesser offenses are charged. (Id. at p. 78.)
Dewberry instructionalerror requires reversal only if it is reasonably probable that in the absence of the error, the result would have been more favorable to the defendant. (Crone, supra, 54 Cal.App.4th at p. 78; see People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant argues the case was factually close and the jury “may” have acquitted him of the robbery charge had it been properly instructed with CALCRIM No. 3519 or its equivalent. The People argue that because both robbery and the lesser included grand theft were charged, and the jury found against appellant on both charges, it necessarily found him guilty beyond a reasonable doubt of the robbery offense. They also argue that the CALCRIM No. 220 instruction given referred to reasonable doubt.
In his opening brief, appellant erroneously asserts that the error is subject to the Chapman harmless beyond a reasonable doubt standard, and constitutes structural error. (Chapman v. California (1967) 386 U.S. 18.)
The CALCRIM No. 220 instruction given stated:
Given the strength of the prosecution’s evidence of robbery against appellant, we conclude it is unlikely he would have obtained a more favorable result had the jury been properly instructed pursuant to CALCRIM No. 3519 or its equivalent. Even assuming the evidence of appellant’s use of force against the victim was disputed, the evidence was undisputed that appellant threatened to “strip” and “blast” the victim prior to taking the victim’s money and that the victim appeared “very frightened and generally threatened.” The Dewberry error was harmless.
V. The Court Properly Exercised Its Discretion Under Romero
Finally, appellant contends the court misunderstood the scope of its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) when it denied his motion to dismiss one of his prior strike offenses under section 1385.
The court did strike one of appellant’s three prior strike conviction allegations pursuant to People v. Burgos (2004) 117 Cal.App.4th 1209, 1216 (where two prior convictions are so closely connected failure to strike one conviction would be abuse of discretion).
Appellant notes that at sentencing the court stated, “I don’t think [the prosecution’s pretrial offer is] something that I can use as a basis for making a decision, but it certainly puts pause in my mind when the prosecuting authority is willing to resolve it for something far less than is now faced.” He argues that the trial court should have considered the disproportionality between the prosecution’s pretrial offer and the 38-years-to-life sentence imposed when determining whether to strike one of his prior strike offenses.
“As the Supreme Court explained in Romero, section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the Three Strikes law, in the interests of justice. [Citation.] In making its decision, the court must consider both the constitutional rights of the defendant and the interests of society represented by the People. [Citation.] ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation . . . the court in question 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.’ [Citation.]” (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213.)
A court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) The burden is on the party attacking the sentence to “clearly show” that the court’s sentencing decision was irrational or arbitrary, and in the absence of such a showing the court’s exercise of its sentencing discretion is presumed correct. (Id. at pp. 376-377.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
Respondent argues appellant has waived this argument by not raising it in the trial court. (People v. Williams (1992) 10 Cal.App.4th 1389, 1393, fn. 8.) Assuming, without deciding, that appellant has not waived the issue on appeal, we conclude he has not met his burden of establishing error. As appellant concedes, the terms of the prosecutor’s pretrial offer are not included in the appellate record. Appellant relies solely on the following colloquy contained within a sealed transcript from the hearing on his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) made before the evidentiary portion of the trial:
“[Appellant]: There was one more thing is I don’t know should I mention it but I did request through [defense counsel] that if the DA want[s] I’ll accept the offer seeing how this trial is going. I’m willing to accept what the deal was originally last week, which was I guess nine years; but now it went from nine to 12, you know. [¶] It’s like they using the three strikes as leverage over me to get me to accept something or anything, a conviction, that’s all. If that’s what they want, I’ll accept the nine. Now it went up to 12. [¶] . . . [¶]
“[Defense Counsel]: Regarding the offer, the offer was extended again to [appellant] last [week]. I had previously encouraged him to consider it, but he rejected it. [¶] I extended not only that offer but a greater offer to [the prosecutor] earlier today in an effort to limit his exposure, and that would have been a plea to count one with a single strike and the prior prison terms that are outlined . . . .”
Based on this colloquy, we cannot ascertain with any certainty the length of the prison term contained in the prosecutor’s offer. Moreover, the record belies appellant’s assertion that the court failed to consider the prosecution’s pretrial offer in exercising its discretion under section 1385. The court specifically stated that the prosecution’s pretrial offer “puts pause in my mind,” suggesting the court did, in fact, consider the pretrial offer as one factor in exercising its discretion under Romero. In refusing to strike the two remaining strikes the court properly noted that before and after the strike convictions, appellant had a regular and serious record of criminal conduct, including crimes of violence, weapons offenses, and drug offenses. The court also noted that appellant’s performance on probation and parole was very poor, and he has had a significant history of substance abuse which he has failed to deal with. The court found that appellant had insufficient motivation to stop using drugs and committing serious crimes and there was a need to protect the public from his further criminality. The court also considered appellant’s social history, and the nature of his current crimes. The court concluded: “[Appellant’s] prospects for a stable life are poor, and the court finds in light of the nature and circumstances of his present felony and prior convictions, present felony convictions and prior convictions, and the particulars of his background, character and prospects, [appellant] may not be deemed outside the strike scheme spirit, and therefore the court is not striking the two remaining prior strike convictions.” The record before us suggests the court considered the requisite factors in ruling whether to strike appellant’s remaining prior strike allegations, and its refusal to do so was well within the bounds of its discretion.
DISPOSITION
Appellant’s convictions for grand theft (count 2) and petty theft with a prior (count 3) are reversed. The judgment of conviction for robbery (count 1) is affirmed.
We concur. JONES, P.J., DONDERO, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”