Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. Nos. CR-113437, CR-117922
Swager, J.
Defendant Charles Granderson appeals the imposition of an on-bail sentencing enhancement imposed after he was convicted of failing to appear. He also claims the trial court abused its discretion in denying his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike his prior strike conviction. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Since defendant does not challenge his convictions, we need only concisely recite the facts pertinent to the underlying convictions as necessary to our limited review on appeal.
On May 4, 2004, an amended information was filed charging defendant in case No. CR-113437 with one felony count of driving under the influence (DUI) (Veh. Code §§ 23152, subd. (a), 23550.5), one misdemeanor count of obstructing a police officer (Pen. Code, § 148, subd. (a)(1)), and one misdemeanor count of giving false information to a police officer (Pen. Code § 148.9, subd. (a)). The information further alleged that he previously served a prison term following his conviction of felony DUI in 1997 (§ 667.5, subd. (b)), and that he had incurred a prior strike conviction in 1980 for discharging a firearm at an occupied vehicle. (§ 246.)
Unless otherwise specified, all further statutory references are to the Penal Code.
On June 1, 2004, defendant, who was free on bail, failed to appear in court after a noon recess. A bench warrant was issued for his arrest. He turned himself in on May 24, 2005.
On June 14, 2005, an information was filed in case No. CR-117922 charging defendant with the offense of willful failure to appear in court for a felony charge while released on bail. (§ 1320.5.) The information specially alleged that he committed the failure-to-appear offense while he was released from custody on bail in case No. CR-113437. (§ 12022.1, subd. (b).) The information again alleged the prior felony DUI conviction and also alleged that he had suffered the prior strike in 1980.
On July 17, 2006, defendant admitted that he had served a prior prison term, had a prior strike conviction, and had a prior conviction for felony DUI. The two cases were consolidated for trial.
On July 24, 2006, defendant was convicted by a jury of all three charges in case No. CR-113437. The jury also convicted him of failure to appear while on bail (case No. CR-117922), and found the on-bail enhancement allegation to be true.
On October 12, 2006, the trial court denied defendant’s motion for a new trial and his motion to strike the prior strike under Romero, and sentenced him to an aggregate term of seven years four months in prison, calculated as follows: the middle term of two years for DUI, doubled to four years due to his strike; a consecutive eight-month term for failing to appear, doubled to 16 months due to the strike; and a consecutive two-year term for the on-bail enhancement. This appeal followed.
DISCUSSION
I. Imposition of Sentencing Enhancement under Section 12022.1
Defendant contends the trial court erred in imposing an on-bail enhancement to the offense of failure to appear because “being on bail was an element of the failure to appear charge.” However, he recognizes that the California Supreme Court held to the contrary in People v. Walker (2002) 29 Cal.4th 577, 589 (Walker). He claims that notwithstanding our obligation to follow Walker we may “consider important arguments that [defendant] advances here and which this Court should reach” because Walker was a four-to-three decision and one of the justices in the majority is no longer on the court, and because the dissenting opinion was well reasoned.
The Attorney General contends that defendant waived this issue by not raising it in the trial court. The waiver doctrine applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant counters that it would have been futile for him to raise the issue at trial because the court was bound to follow Supreme Court precedent as set forth in Walker.
In Walker, the court concluded that the Legislature “intended the enhanced punishment of section 12022.1 to apply even where the only secondary offense at issue is a willful failure to appear in court in violation of section 1320.5. The statutory language admits no ambiguity on the point, and the legislative history affirmatively supports this construction. Put another way, because nothing in the statutory language or history reflects a legislative purpose to disallow additional punishment under section 12022.1 when the only secondary offense is a violation of section 1320.5, the construction that comports most closely with the Legislature’s apparent intent is one that gives effect to section 12022.1 under such circumstances.” (Walker, supra, 29 Cal.4th 577, 587–588.)
Even assuming defendant has not waived this issue, we need not consider the merits of his arguments as we, like the trial courts, are bound to follow Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly defendant’s claim of error with respect to the court’s imposition of the sentencing enhancement under section 12022.1 fails.
II. Failure to Strike Defendant’s Prior Strike
Defendant contends the trial court abused its discretion when it denied his motion to dismiss his prior strike conviction. We disagree.
In the furtherance of justice, a trial court may strike a prior conviction allegation. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th 497, 504.) A trial court’s refusal to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) Under that standard, the party seeking reversal must “ ‘clearly show that the sentencing decision was irrational or arbitrary. . . .’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (Carmony, supra, at p. 378.) Only extraordinary circumstances justify a finding that a career criminal is outside the three strikes law. (Ibid.) Therefore, “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.” (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court must consider are “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.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The three strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Carmony, supra, 33 Cal.4th 367, 378.) We presume the trial court “considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Here, the probation report indicates that defendant’s criminal history began in 1971 when he was a juvenile. His adult record includes at least 11 misdemeanor convictions from 1972 through 1992, the 1980 felony conviction for shooting at an occupied vehicle, and a 1997 felony conviction for driving under the influence. He also incurred multiple violations of probation and parole and had failed to appear on numerous vehicle code violations.
The “Three Strikes law has, as its central focus, the status of the defendant as a repeat felon—i.e., whether the defendant proceeded to commit a subsequent felony after already having been convicted of one or more serious or violent felonies.” (People v. Benson (1998) 18 Cal.4th 24, 34.) Defendant argues that, although his prior and current offenses are numerous, they are not sufficiently serious to warrant three strike treatment. But the express purpose of the three strikes law is to guarantee longer prison sentences for habitual criminals who commit any felony following the conviction of a serious or violent felony. (People v. Strong (2001) 87 Cal.App.4th 328, 337.) Thus, defendant’s sentence does not reflect punishment “merely on the basis of his current offense but on the basis of his recidivist behavior.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) And “the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law.” (Strong, supra, at p. 344.)
The trial court found that the defendant’s prior record was significant, that he had previously been sent to state prison, that his performance on probation and/or parole had been unsatisfactory, that his involvement in the strike offense was not minimal, and that he had personally exposed the public to danger. The court acknowledged that the strike offense occurred in 1980, but found that “in light of the nature of the circumstances of the present felony and his prior serious felony the particulars of his background and his prospects that the defendant should be deemed to be outside the spirit of the Three Strikes sentencing scheme and therefore treated as though he had not previously been convicted of one or more serious or violent felonies.” We find that the court acted to achieve legitimate sentencing objectives and did not abuse its discretion in denying defendant’s motion to dismiss the prior strike conviction.
By a separate order filed this date we have denied defendant’s petition for writ of habeas corpus in A120979.
We concur: Stein, Acting P. J., Margulies, J.