Opinion
F084810
06-14-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE GARCIA, Defendant and Appellant.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F22901890, Samuel Dalesandro, Judge.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Jose Garcia contends on appeal that the trial court abused its discretion in denying his Romero motion to dismiss a prior felony "strike" conviction within the meaning of the "Three Strikes" law (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)). We affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
All statutory references are to the Penal Code unless otherwise noted.
PROCEDURAL SUMMARY
On May 11, 2022, the Fresno County District Attorney filed an information charging defendant and his codefendant, Joey Michael Tyler, with second degree robbery (§ 211; count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); and receiving stolen property valued in excess of $950 (§ 496, subd. (a); count 3). As to counts 1 and 2, the information alleged that defendant and Tyler inflicted great bodily injury during the commission of the offenses (§ 12022.7). The information also alleged that defendant had a prior strike conviction (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)) and a prior serious or violent felony conviction (§ 667, subd. (a)(1)).
Tyler was named a codefendant in the information. Defendant resolved his case independently of Tyler.
Tyler was separately charged with receiving stolen property as a misdemeanor (§ 496, subd. (a); count 4).
On June 10, 2022, the trial court denied defendant's motion to set aside the robbery charge in count 1.
On July 19, 2022, defendant and the prosecution entered into a plea agreement to resolve the case. Defendant did not agree to waive any rights under a Harvey waiver. Defendant pled no contest to count 3 (§ 496, subd. (a); receiving stolen property) and admitted the prior strike conviction. In exchange, the parties agreed that his sentence would be limited to no more than 32 months (the low term, doubled pursuant to the prior strike conviction). The remaining counts and allegations were dismissed for insufficiency of evidence.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Defense counsel and the prosecution exchanged emails confirming insufficiency of evidence for counts 1 and 2.
Prior to the sentencing hearing, defendant filed a motion to reduce count 3 (§ 496, subd. (a); receiving stolen property) to a misdemeanor or alternatively to dismiss the prior strike conviction under Romero.
The trial court denied defendant's motion to reduce the charge in count 3 to a misdemeanor or strike the prior strike under Romero.
On August 16, 2022, the trial court sentenced defendant to the term of 32 months (the low term, doubled pursuant to the prior strike conviction). The court also ordered defendant to pay a $1,200 restitution fine (§ 1202.4), a stayed $1,200 restitution fine (§ 1202.45), a $40 court security fee (§ 1465.8), and a $30 assessment fee (Gov. Code, § 70373). Defendant was given 297 days of custody and conduct credits.
On August 16, 2022, defendant filed a timely notice to appeal.
FACTUAL SUMMARY
Counts 1 and 2
On March 18, 2022, Tyler grabbed Katherine S.'s purse from her as she sat outside of a car wash, waiting for her vehicle to be cleaned. The purse contained Katherine's phone. When Katherine resisted, Tyler injured her. Tyler then fled the scene in a vehicle driven by an unidentified male.
Count 3
Later that day, defendant sold a cellular phone at a kiosk located in a grocery store. Defendant was accompanied by Tyler at the kiosk while he sold it. The phone was recovered from the kiosk pursuant to a police investigation and it was determined to belong to Katherine.
Defendant told police that Tyler brought the phone to his house and asked him to sell it for him in exchange for compensation. Defendant stated that he did not ask Tyler any questions about where Tyler obtained the phone when he agreed to sell the phone for him.
DISCUSSION
I. Romero Motion
Defendant contends the trial court abused its discretion when it denied his Romero motion to dismiss his prior strike conviction. He argues the court relied heavily on the facts underlying counts 1 and 2, both dismissed for insufficient evidence, in violation of the holding in Harvey, supra, 25 Cal.3d 754. The People disagree, as do we.
A. Background
The probation report submitted at sentencing included a recitation of facts from a police report which identified defendant as the driver of the vehicle involved in the robbery and assault. It stated, in part, that Katherine was 36 weeks pregnant at the time of the robbery, that "[t]here were two subjects inside the vehicle, later identified as [defendant], the driver," and Tyler, and that Tyler "kicked Katherine in the stomach four to five times."
These portions of the probation report contained in the record were underlined by hand.
The probation report also included defendant's statement to the police that Tyler asked him to sell the phone for compensation. He told police that he and Tyler went back to his home after selling the phone at the kiosk and" 'smoked some meth.'" He denied being involved in any robbery and stated to them that he had no knowledge of how Tyler obtained the phone.
This portion of the probation report had hand-drawn brackets around it.
The probation report documented defendant's criminal history, which dated back to 1995 and consisted of five juvenile dispositions, two violations of juvenile probation, two misdemeanor convictions, six felony convictions, two jail terms, six prison terms, and a parole violation.
During the sentencing hearing, and before hearing counsels' arguments on defendant's Romero motion, the trial court asked counsel if there were any additions or corrections that needed to be made to the probation report. Defense counsel alerted the court that counts 1 and 2 had already been dismissed for insufficiency of evidence, stating, "In regards to the probation report, it indicates [c]ount 1 and [c]ount 2 were dismissed with right to comment and restitution. They were dismissed for insufficient evidence." The prosecution agreed.
The trial court stated, "All right. We will note that for the record."
Defendant contends that the underlined portions of the probation report pertaining to the facts of the robbery shows that the trial court relied on these facts to deny defendant's Romero motion based on underlying facts of dismissed counts 1 and 2. However, there is no way to verify who underlined those portions of the probation report, when it was done, or why they underlined them. Further, the court confirmed with counsel that counts 1 and 2 were dismissed for insufficient evidence when discussing correcting the probation report before ruling on the Romero motion. Accordingly, we conclude the underlining does not show that the court relied on the facts of the robbery underlying dismissed counts 1 and 2 when denying defendant's Romero motion.
The victim, Katherine, then made a statement to the trial court. She first spoke about the lasting physical and emotional effects on her from the violence committed by Tyler during the robbery. She also stated that she was thankful the police had recovered her phone because it contained irreplaceable photos on it and that, "[i]n total, [she had] a loss of $5,260 that day of which $2,200 [she] will not be able to obtain again, that will be out of [her] pocket. [¶] [Her] husband ... had to take off work. [She] had to take [sic] [her] in-laws come from eight hours away to help with child care for each subpoena [she] received" in relation to the case.
Defendant asserts that Katherine should not have been allowed to speak at defendant's sentencing hearing because she was "irrelevant" to his charge in count 3 of receiving stolen property. The People contend that the stolen phone received by defendant in count 3 belonged to Katherine, which made her the victim of defendant's effort to "sell" a phone which did not belong to him, and to which he pled to receiving stolen property. The trial court permitted Katherine's testimony as is required under Marsy's Law (Cal. Const., art. I, § 28, subd. (b) par. (8)) and defendant's trial counsel made no objection or motion to strike. Defense counsel reminded the trial court that the underlying robbery and assault charges were dismissed against defendant, and "they should not be considered in imposing a sentence to [defendant]." Accordingly, we agree with the People that Katherine's victim statement was permissible.
Prior to sentencing, defendant filed a Romero motion requesting the court dismiss his prior strike conviction in the interests of justice, pursuant to section 1385. Defense counsel argued orally to the trial court that counts 1 and 2 were dismissed against defendant for insufficient evidence, and accordingly, they should not be considered in imposing defendant's sentence. Defense counsel stated defendant accepted responsibility for selling the phone but that selling the phone was the extent of his participation in the incident, and that he was unaware of how the phone came into Tyler's possession. He stated that if defendant had known what Tyler had done to Katherine, he would not have sold the phone for him.
Defendant then spoke directly to the trial court, stating, "I'm truly sorry for what happened to [Katherine]. I had no idea that the phone was ... stolen like that. I had no idea it was stolen at all .. the only part I had was selling the phone."
The prosecution then stated, "While we do believe [defendant was driving the car during the robbery], obviously the standard of proof is beyond a reasonable doubt. We could not prove that beyond a reasonable doubt, that's why those counts were dismissed for insufficient evidence and the resolution was for .. [s]ection 496[, subdivision] (a) [count 3].
"In regards to Romero and potential [section] 17[, subdivision] (b) the People do not believe that is appropriate. I will note based on the probation report in pages 4, 5 and 6, the defendant does have a fairly lengthy criminal history dating back to 1995.
"Additionally, it does appear that in 1996, there were two violations of juvenile probation, another one in 2007, as well as adult criminal history that dated from 1997 to 2016. There were parole violations in 2016. We have the strike conviction that was a carjacking conviction from 2008, and then subsequently he violated his arrest parole and then he committed another crime in 2016 with the [section] 10851 conviction admitting the strike. He did receive 2 years, 8 months, prison.
"I do believe that Romero is inappropriate here as well as [section] 17[, subdivision] (b)." The trial court then denied defendant's Romero motion, stating, "The [c]ourt has considered statements here in court today in support of [the Romero] motion as well as the oral opposition filed or stated by the People here in court today. The [c]ourt has read and considered the report of the probation officer that was submitted for sentencing today, which contains the facts of this case and your prior criminal record, which the [c]ourt will note is lengthy as pointed out by the People.
"The [c]ourt understands it has discretion to exercise Romero and strike the prior strike conviction pursuant to the case of People v. Romero, ... [s]ection 1385.
"Considering whether to exercise the [c]ourt's discretion the [c]ourt has taken into consideration the totality of the facts of this case, specifically the receiving stolen property facts as indicated in the report and your prior record.
"The [c]ourt will note that you have not sustained a significant period of time remaining free from criminal conduct. [¶] Your strike conviction was in 2008. That was a violent felony. That was carjacking. You were sentenced to five years in the California Department of Corrections and Rehabilitation on that case. Your parole was revoked in 2016 based on vehicle theft which essentially carjacking [sic] out the violence. You received 2 years, 8 months in [the] California Department of Corrections and Rehabilitation.
"What's concerning to the [c]ourt here, sir, is you stating that you had no idea what happened. The [c]ourt is not convinced that you merely just stuck your head in the sand and had no idea about where these phones come from when property is stolen.
"When property is stolen, as it was in this case, it's done by great violence. People are harmed. People's lives are upended. Whether you took that property, or not, yourself.
"The probation report indicates that after you got the phone, you and your co-defendant smoked meth. I'm not buying for a moment that you didn't know ... that phone was not something that you should be possessing or selling or how that phone came into your possession. Whether it was from the incident involving this victim or anyone else that had their lives upended or was attacked.
"You have a significant criminal history. This is not your first time through this process. You have a history of drugs, and theft, and violence, and I'm not convinced that you have no idea how these items are obtained and the consequences for the innocent victims who suffer this type of loss.
"As such, the [c]ourt declines to exercise its discretion under ... [s]ection 1385 in the case of People v. Romero." (RT 612-614.)
B. Law
The intent 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 serious and/or violent felony offenses.'" (People v. Strong (2001) 87 Cal.App.4th 328, 337.) The Three Strikes law establishes a sentencing norm for longer sentences for repeat offenders and "carefully circumscribes the trial court's power to depart from this norm," requiring the court to explicitly justify its decision to depart from this norm. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) "While a court must explain its reasons for striking a prior [citation], no similar requirement applies when a court declines to strike a prior [citation]." (In re Large (2007) 41 Cal.4th 538, 550.) "In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, at p. 378.)
However, under the Three Strikes sentencing scheme the trial court retains jurisdiction to dismiss or strike one or more of a defendant's prior strike convictions, "subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion." (Romero, supra, 13 Cal.4th at p. 531.)
Section 1385 grants trial courts limited discretion to strike prior strike conviction allegations. (§ 1385; Romero, supra, 13 Cal.4th at p. 530.) The lower court must determine whether "in light of the nature and circumstances of [the defendant's] 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 [Three Strikes] 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." (People v. Williams (1998) 17 Cal.4th 148, 161; see People v. Strong, supra, 87 Cal.App.4th at p. 336 [The "spirit" of a law refers to the general meaning or purpose of the law.].)
Discretion is abused if a court dismisses a prior strike conviction for judicial convenience, to relieve court congestion, or simply because the defendant pleaded guilty. (Romero, supra, 13 Cal.4th at p. 532.) "[A] [trial] court [would not act] properly if 'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant ....'" (Ibid.) Additionally, considering the defendant's criminal history alone is" 'incompatible with the very nature of sentencing discretion . . ..'" (In re Saldana (1997) 57 Cal.App.4th 620, 626; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981.) Further, "an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Carmony, supra, 33 Cal.4th at p. 378.)
However, the extent of a defendant's criminal record is "undeniably relevant" to the factors outlined in Williams, and the defendant's sentence is the overarching consideration when deciding to strike a prior conviction allegation "because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (People v. Garcia (1999) 20 Cal.4th 490, 498, 500.) The sentence imposed by the trial court is itself a factor when deciding a defendant's prospects for committing future crimes because the defendant will have fewer opportunities to commit crimes while incarcerated. (People v. Gaston (1999) 74 Cal.App.4th 310, 315.)
Accordingly, "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' [citation]. Because the circumstances must be 'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Carmony, supra, 33 Cal.4th at p. 378.)
On review, the trial court's denial of the motion is strongly presumed to be a proper exercise of discretion. (Carmony, supra, 33 Cal.4th at p. 378.) It is the defendant's burden to provide the court with evidence to support his Romero motion. (People v. Lee (2008) 161 Cal.App.4th 124, 129.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, at p. 377.)
C. Analysis
Here, the trial court explicitly considered the "nature and circumstances of his present felonies and prior serious and/or violent felony convictions," "particulars of his background, character, and prospects," and "nature and circumstances of the prior strike conviction" to find that defendant did not fall outside the spirit of the Three Strikes law when denying defendant's Romero motion. (People v. Williams, supra, 17 Cal.4th at p. 161.) It did not improperly rely on the facts underlying dismissed counts 1 and 2. Its references to the underlying robbery were general statements tied to the court's determination of whether defendant's claim that he had "no idea" the phone was stolen was credible, and to show that the offense of receiving stolen property negatively effects the victim, whether or not the person selling the property participated in taking it.
As to defendant's "prior serious and/or violent felony convictions," the trial court noted defendant's "significant" and "lengthy" criminal history of "drugs, and theft, and violence"; that he had "not sustained a significant period of time remaining free from criminal conduct"; and that he violated felony parole.
The trial court also discussed the nature and circumstances of defendant's present felony, receiving stolen property, in conjunction with defendant's background and character. It noted that it did not find defendant credible, stating, "[t]his is not your first time through this process. ... I'm not convinced that you have no idea how these items are obtained and the consequences for the innocent victims who suffer this type of loss. [¶] I'm not buying for a moment that you didn't know that that phone was not something you should be possessing or selling or how that phone came into your possession." It continued, "the [c]ourt is not convinced that you merely stuck your head in the sand and had no idea about where these phones come from when property is stolen."
Balancing these factors, it found that defendant did not fall outside the spirit of the Three Strikes law.
Defendant, however, contends that the trial court improperly relied on the facts underlying dismissed counts 1 and 2 when denying defendant's Romero motion. We disagree.
While the trial court's statement does make references to the underlying robbery, the court's statement does not show that it relied on these facts relating to dismissed counts 1 and 2 in violation of Harvey, when it denied defendant's Romero motion.
In Harvey, the Supreme Court held that, in sentencing a defendant who had pled guilty as part of a plea bargain, the trial court had improperly considered a dismissed count as a factor in aggravation supporting the selection of an upper term. (Harvey, supra, 25 Cal.3d at pp. 757-758.) California Rules of Court, rule 421 (now rule 4.421) lists "[c]ircumstances in aggravation" to be considered by a sentencing court in determining whether to impose upper limit sentences. There are three types of facts the court may consider under this rule; one of these is "[f]actors relating to the crime ._" (Rule 4.421(a) [former rule 421].) Harvey noted "it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count ... for purposes of aggravating or enhancing defendant's sentence. ... Implicit in ... a plea bargain, we think, is the understanding (in the absence of a contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Harvey, supra, 25 Cal.3d. at p. 758.)
Future references to rules are to the California Rules of Court.
We need not decide here whether the rule announced in Harvey with respect to factors in aggravation to support the imposition of an upper term also applies to factors the court may consider in deciding whether to strike one or more priors under Romero. The "circumstances in aggravation" in rule 4.421 are not the same or used for the same purposes as the criteria for the striking of a prior serious felony under Romero. (See Romero, supra, 13 Cal.4th at pp. 530-531.) But the People appear to have conceded this point by failing to argue it. We will therefore assume for purposes of this opinion that the same rule applies. But, even if it does, the trial court did not violate the limitations imposed by Harvey.
Here, the trial court did not rely on the facts underlying dismissed counts 1 and 2 in denying defendant's Romero motion. The court stated that it was specifically considering the facts of count 3 (receiving stolen property) for sentencing purposes, saying, "the [c]ourt has taken into consideration the totality of the facts of this case, specifically the receiving stolen property facts as indicated in the report and [defendant's] prior record." (Emphasis added.) The court then made general statements about the harm done to the victims whose property is stolen in relation to the offense of receiving stolen property. It noted that victims whose property is stolen suffer regardless of whether the recipient of the stolen property participated in taking the property from the victim, stating, "[w]hen property is stolen, as it was in this case, it's done by great violence. People are harmed. People's lives are upended. Whether you took that property, or not, yourself." The court's reference here to "as it was in this case, ... by great violence" does not show that the court was attributing the underlying robbery to defendant. Rather, it shows that the court was stating this robbery fell into the same category as other instances where the victim of stolen property is harmed by physical violence, to make the point that the offense of receiving stolen property is not victimless, nor harmless. The court did not say that it believed defendant participated in the robbery or attributed the harm done to Katherine directly to defendant, as it stated, "whether [defendant] took the property, or not, [him]self," referring to the harm done to the victim. The court's other reference to the underlying robbery, where it noted defendant smoked meth with Tyler after selling Katherine's phone for Tyler, was an assessment that defendant's claim that he had "no idea" the phone was stolen was not credible. The court noted that this statement was not credible in light of defendant smoking meth with Tyler after selling the phone and in light of defendant's "lengthy" and "significant" criminal history, as it stated, "I'm not convinced that you have no idea how these items are obtained and the consequences for the innocent victims who suffer this type of loss." The court believed that defendant knew the phone was "not something he should be possessing or selling or how that phone came into [defendant's] possession. Whether it was from the incident involving this victim or anyone else that had their lives upended or was attacked." The court did not say that it believed defendant had participated in the robbery. Disregarding whether defendant was guilty of the crimes charged in the dismissed counts, the court properly noted that defendant had a "lengthy" and "significant" criminal history, and that this was not his first time "through this process." The court did not base its refusal to strike the prior serious felony on an assumption that defendant was guilty of the crimes charged in the dismissed counts; rather, the court looked at the environment in which defendant had placed himself and the persons with whom he associated and properly concluded from these facts that defendant was not outside the spirit of the Three Strikes law.
While we need not decide whether rule 4.421 governs the decision whether to dismiss a prior serious felony, we note it permits the court to consider factors other than the facts relating to the crime; it includes "[f]actors relating to the defendant ...." (Rule 4.421(b).) The evidence relied on by the trial court in denying the motion to strike constituted such facts. Harvey only prohibits consideration of facts which were "unrelated to, and wholly separate from, the admitted [crimes] ...." (Harvey, supra, 25 Cal.3d at p. 759.)
The trial court's discussion of the proper considerations, along with the presumption that denial of a Romero motion is a proper exercise of discretion (Carmony, supra, 33 Cal.4th at p. 378), convince us that the court's denial of defendant's motion was not an abuse of discretion. The trial court's decision was not "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, at p. 377.) The trial court's statement shows that it considered several relevant factors when it determined it would not strike defendant's strike, including his numerous prior convictions, prior parole violation, and the fact that it concluded his claim that he had "no idea" the phone was obtained illegally by Tyler was not credible. Defendant has not presented affirmative evidence that the court improperly relied on the facts underlying dismissed counts 1 and 2 in denying defendant's Romero motion. (See People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 981.)
DISPOSITION
The judgment is affirmed.
[*] Before Poochigian, Acting P. J., Detjen, J. and Franson, J.