Opinion
C082148
12-05-2017
THE PEOPLE, Plaintiff and Respondent, v. DARRELL ALLEN JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STKCR20156178, SF131268A)
Defendant Darrell Johnson argued with his wife about housecleaning; he hit her and threatened to kill her if she called the police. A jury found him guilty of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)), criminal threats (§ 422), and dissuading a witness by threat of force (§ 136.1, subd. (c)(1)). The trial court found true the allegation that defendant had a prior serious felony. (§§ 1170.12; 667, subd. (a).) Sentenced to 13 years in prison, defendant appeals.
Further undesignated statutory references are to the Penal Code.
Defendant challenges the sufficiency of the evidence to support the convictions for criminal threats and dissuading a witness. He contends the trial court erred in denying his Marsden motion before trial and in failing to hold a Marsden hearing after the verdict. He further contends it was error to admit his prior acts of domestic violence as some were over 10 years old and they were cumulative and prejudicial. Finally, defendant asserts the case must be remanded for resentencing because the trial court abused its discretion or misunderstood its discretion in ruling on defendant's Romero motion and imposing a consecutive sentence. We find no error and affirm.
People v. Marsden (1970) 2 Cal.3d 118.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTS
The Prosecution Case
Christina was married to defendant and lived with him and their two-year-old daughter. On April 19, 2015, Christina was cleaning the house, but stopped when her daughter woke up. Defendant came home and was angry because Christina had not yet cleaned the floors. She cursed at him and told him she would do it as soon as the baby went back to sleep. Defendant punched her with a closed fist and yelled at her.
Deputy Casey Schaapman was dispatched to defendant's residence after a call of a disturbance. When he arrived, defendant was outside, yelling, cursing, and flailing his arms. The deputy told defendant to sit on the bumper of the patrol car. Defendant refused; he put his hands behind his back and said, "Just take me to jail." Schaapman handcuffed defendant and put him in the car. Defendant yelled and tried to kick out the windows of the patrol car.
When Schaapman approached Christina, she was upset and crying, with a bruise under her left eye. She told the deputy that she and defendant argued about the way she cleaned the house. Defendant became upset and hit her and told her he would kill her. Christina told Schaapman she was in fear of her life; defendant had mental health issues and she felt like a prisoner in her house because he was going to kill her. She said she did not call the police because she feared defendant would kill her if she did. He had told her he would kill her if she called the police or called for help.
At trial, Christina denied defendant threatened her or that she had told the deputy he had threatened her.
Stephanie S. was in a previous relationship with defendant; he was the father of her nine-year-old son. She testified to two incidents when the police came to their house. In 2007, she was not making dinner fast enough for defendant's liking and he hit her in the face; he had a small knife in his hand. In 2002, they fought after defendant had been drinking. She was injured; at trial she recalled she had a bite mark and scratches. She testified defendant was never violent when he was sober.
The People introduced defendant's convictions into evidence: 2001 convictions for criminal threats (§ 422) and brandishing a weapon (§ 417, subd. (a)(1)); a 2002 conviction for felony assault to commit rape (sanitized to assault) (§ 220); and a 2007 conviction for corporal injury to a cohabitant (§ 273.5, subd. (a)).
The Defense
Defendant had a variety of mental health issues, and had been diagnosed with delusional disorder, paranoia, bipolar disorder, substance abuse disorder, and schizophrenia. In 2013, defendant was hit by a falling tree and took various and increasing medications for pain. As his prescriptions for narcotic pain medicine increased, some pharmacies stopped filling prescriptions from defendant's doctor. In the months before the incident, defendant took multiple medications, some with psycho-active components. The defense was that the combination of medications made defendant "unconscious" at the time of the offenses due to his involuntary intoxication based on his ignorance of the drugs' intoxicating effects. The defense also argued that the effects of the medications negated the required specific intent for criminal threats and dissuading a witness.
To support this defense, four experts--two psychiatrists, a psychologist, and a pharmacist-- testified about the possible side effects of the drugs, especially when taken together. These effects included altered mental state, psychological problems, blackout, impaired memory and cognition, and compulsion to do certain things. One psychiatrist testified defendant was probably at least transiently psychotic at the time of the incident. The other testified defendant was at times intoxicated from the medications. Both psychiatrists opined that defendant had a pattern of exaggeration and drug-seeking behaviors.
DISCUSSION
I
Sufficiency of the Evidence of Criminal Threats
Defendant contends there was insufficient evidence he threatened Christina. He contends there was no evidence she was placed in sustained fear by his statement that he would kill her, or that the statement was so unequivocal, unconditional, immediate, and specific to convey a gravity of purpose and an immediate prospect of execution, as required by section 422.
"The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
We " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)
"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat-which may be 'made verbally, in writing, or by means of an electronic communication device'-was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) As we have described, defendant challenges the sufficiency of the evidence of the third and fourth elements.
"Sustained fear" under section 422 "means a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) In Allen, the court found 15 minutes of fear after a threat to kill was sustained fear. (Ibid.)
Christina testified the police arrived a "few minutes" after defendant hit her. There was substantial evidence that Christina was still in fear after Deputy Schaapman arrived and detained defendant. Upon the officer's arrival, defendant was erratic and violent; he was flailing his arms and cursing, and he tried to kick out the windows when placed in the patrol car. After detaining defendant, the officer encountered the distraught and crying Christina; she said she was in fear for her life. She told him she felt like a prisoner in her home because defendant was going to kill her. This evidence is sufficient to show Christina was in sustained fear of defendant, lasting until the deputy arrived and arrested defendant, removing the threat.
Defendant points to evidence that Christina declined the deputy's offer of an emergency protective order, that defendant had left the house in keeping with their past practice of separating and cooling off after they fought, her testimony that she was not afraid and was going to leave the house, and the evidence that defendant was under the influence of prescription medicine. It is clear the jury credited the testimony of the deputy rather than that of Christina about the threats, and the jury rejected the defenses based on the effects of the multiple medications. In focusing on the evidence favorable to him, defendant invites this court to reweigh the evidence and substitute our conclusions for those of the jury. This we cannot do. (People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
Defendant contends his threat to kill Christina was only an angry outburst and not "so unequivocal, unconditional, immediate, and specific as to convey [to Christina] a gravity of purpose and an immediate prospect of execution of threat." (§ 422.) We disagree. Defendant's threat to kill his wife and the threat to kill her if she called the police or called for help were unequivocal, unconditional, immediate and specific. In determining the nature of the threat, we consider the circumstances under which it was made. (People v. Garrett (1994) 30 Cal.App.4th 962, 967.) Defendant's threats were not simply an outburst during a verbal argument; rather, defendant made the threats after he had violently struck Christina, and he remained irrational and violent afterwards. This circumstance demonstrated the immediacy of the threat and conveyed an immediate prospect of execution of the threat. Substantial evidence supports the conviction for criminal threats.
II
Sufficiency of the Evidence of Dissuading a Witness
Defendant next contends there was insufficient evidence to support his conviction for dissuading a witness because there was insufficient evidence he acted with the specific intent to prevent Christina from reporting the crime. He relies on the lack of specifics about the timing of the threat to kill her if she called the police and the absence of any evidence that he took further actions consistent with the threat, such as taking the phone or guarding Christina, or evading or threatening the deputy. Instead, he notes, he left the house, leaving her alone to call the police, and when the police arrived he submitted and told the deputy to take him to jail.
Section 136.1 criminalizes trying to dissuade a victim from reporting a crime. "To prove a violation of section 136.1, subdivision (b)(1), the prosecution must show (1) the defendant has attempted to prevent or dissuade a person (2) who is a victim or witness to a crime (3) from making any report of their victimization to any peace officer or other designated officials." (People v. Upsher (2007) 155 Cal.App.4th 1311, 1320.) The crime is a felony if accompanied "by an express or implied threat of force or violence." (§ 136.1, subd. (c)(1).) Defendant specifically threatened to kill Christina if she called the police.
Defendant contends Deputy Schaapman's testimony was insufficient to prove dissuading a witness because he did not question Christina about the specific timing of the threat. He argues the threat could have been made before he hit Christina or committed any crime. The deputy testified Christina told him (1) defendant hit her, (2) he threatened to kill her, and (3) he threatened to kill her if she called the police. From this chronology, and common sense, the jury could reasonably conclude the threat not to call the police came after defendant struck Christina (or at least after he threatened to kill her), and thus after she was the victim of a crime and had a reason to call for help.
Defendant's argument based on the lack of evidence of further efforts to dissuade Christina from calling the police fails. Nothing in the statute requires a defendant to take all possible measures to dissuade a witness. Nor does his argument about the influence of his medications on his mental state succeed. The jury rejected the argument that as a result of the effects of the numerous medications defendant lacked the specific intent for either the criminal threat charge or the dissuading a witness charge.
III
Marsden Motions
Defendant contends the trial court abused its discretion in failing to grant his pre-trial Marsden motion because defendant told the court he had lost trust in his attorney and believed the attorney was lying to the court. He contends the court further erred in failing to hold a Marsden hearing after the verdict when defendant again expressed a lack of trust in his attorney and said he did not understand the process.
A. Pre-Trial Motion
The law governing a Marsden motion is well settled. "A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) A denial of a Marsden motion is reviewed for an abuse of discretion and it " 'is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]' [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
Defendant's complaint against his counsel at the Marsden hearing before trial was that counsel had rejected a 16-month offer from the People, despite defendant's strong desire to get out of jail as soon as possible so he could get help for his medical problems. Counsel told the court that defendant's medical problems were real. He explained the People's offer was 16 months with a strike or 4 years without a strike; defendant had misunderstood the non-strike offer to be 32 months rather than four years. Counsel had told defendant he could try to get the non-strike offer reduced to 32 months, but that did not happen. Defendant wanted the 16 month offer and counsel conveyed that to the prosecutor, but when it was time to go forward, defendant followed the recommendation of counsel and rejected the offer. Counsel had recommended against taking the 16 months with a strike deal because defendant already had a super strike and thus would face 25 years to life for any subsequent felony conviction.
Defendant denied he turned down the deal. He claimed he wanted the deal and, under questioning by the trial court, said he did not tell the judge he wanted the deal because the judge would not let him speak. When counsel repeated that defendant had turned down the deal, defendant responded, "That is a lie." Defendant said he did not trust counsel because he thought he was working closely with the prosecutor.
The trial court found defendant had ultimately rejected the People's offer, as reported by the defense attorney, and denied the Marsden motion.
We find no abuse of discretion in denial of the Marsden motion. Defendant has failed to show that counsel was not providing adequate representation or that such inadequate representation was likely to result. Counsel told the court that he "can and will fight for [defendant]." Defendant and counsel presented different versions of the final decision to reject the plea deal. "To the extent there was a credibility question between defendant and counsel at the hearing, the court was 'entitled to accept counsel's explanation.' [Citation.]" (People v. Smith (1993) 6 Cal.4th 684, 696.) Defendant's professed lack of trust in counsel did not require substitute counsel. "If a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." (People v. Jones, supra, 29 Cal.4th at p. 1246.)
B. Failure to Hold Post-Verdict Hearing
After the verdict, while the parties were discussing defendant's plea of not guilty by reason of insanity, defendant claimed he did not have adequate representation. He complained he had tried to take a plea deal, but his attorney said "[d]on't" and rushed him to trial. Defendant said he wanted a new lawyer. He claimed he had been denied the phone calls he was promised that would have allowed him to hire a lawyer. He was being "railroaded, miscarriage of justice."
The plea of not guilty by reason of insanity was withdrawn after the People refused to waive a jury trial. --------
The court told defendant he could ask if a new attorney at any time; the court explained it was called a Marsden motion and asked defendant if he wanted to make a Marsden motion. Defendant said he did not "speak well enough to give [t]he [c]ourt a good reason to give me a new lawyer." When the court asked if defendant wanted counsel to continue to represent him, defendant said he did not know what he wanted. He expressed frustration about the results of the trial and his failure to succeed on the earlier motion to substitute counsel. "The courts are going to do what they want to do. That's that." As the court continued to explain defendant's rights and question him, defendant claimed he did not understand "none of this" and knew only that he was being "railroaded."
Defendant continued to claim he did not understand as the trial court questioned him about whether he wanted to waive his right to have a jury determine his priors. "For me to say yes or no, this is a joke because I don't get what's going on. [¶] All I know is I'm being railroaded to go to prison. That's all I know. . . . [¶] Whatever. Let the man keep doing what he's been doing." Defendant said he did not care for the jury because it "has been tainted by misrepresentation and falsified statements." He continued to express his frustration with the verdict and assert that he was "railroaded"; ultimately the court found he had waived a jury on the priors. Defendant now claims the court erred in failing to conduct a Marsden hearing before finding waiver.
Upon a proper showing, a defendant is entitled to substitute counsel at any stage of the proceedings. (People v. Smith, supra, 6 Cal.4th at p. 693.) While a defendant need not make a formal Marsden motion, there must be " 'some clear indication' " that he wants substitute counsel. (People v. Dickey (2005) 35 Cal.4th 884, 920.) A trial court is not required to hold a hearing each time the defendant repeats and renews the same complaints. (People v. Clark (1992) 3 Cal.4th 41, 104, overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462.)
Here, defendant clearly stated he wanted new counsel. When the trial court offered him a hearing, however, he declined, stating he could not articulate sufficient reasons. He indicated his dissatisfaction with counsel was due to the rejection of the plea deal, a reason the court had already heard. Defendant expressed frustration at the verdict, and he stopped listening to the court's explanations, claiming repeatedly that he did not understand anything and was being "railroaded."
A defendant who has made a Marsden motion may abandon his request for a Marsden hearing by his subsequent conduct. (People v. Vera (2004) 122 Cal.App.4th 970, 981-982.) In Vera, the defendant made an oral Marsden motion; before he finished listing all of the reasons he believed his counsel was ineffective, the court interrupted the defendant to handle another matter. When the defendant objected he was not finished, the court explained that the Marsden motion was denied without prejudice and could be renewed at a later time. (Id. at pp. 975-976.) The defendant failed to renew his Marsden motion at a later hearing. (Id. at pp. 981-982.) In finding the defendant had abandoned his Marsden motion by failing to further present his complaints at the later hearing, the court reasoned, "In this case, the trial court offered defendant the opportunity for a further hearing. Defendant's failure to take advantage of this offer can only be interpreted as an abandonment of his unstated complaints. [Citation.] While we are aware of no precedent finding abandonment of a Marsden motion, it is established that a defendant's conduct may amount to abandonment of a request to represent himself under Faretta v. California (1975) 422 U.S. 806 [ ]. [Citations.] If a defendant can abandon his request to substitute himself for counsel, a defendant can abandon his request to substitute another counsel. We conclude that defendant abandoned his unstated complaints about counsel by not accepting the court's invitation to present them at a later hearing." (People v. Vera, supra, at pp. 981-982.)
Here, the record shows that the trial court reasonably interpreted defendant's comments not as a request for a hearing on substitution of counsel, but as a frustrated rant about the verdict and the predicament he faced. Defendant offered no new reason why he thought counsel was deficient; his concerns about the plea deal had been explored in the earlier hearing and he was not entitled a second hearing on that same issue. Defendant's failure to accept the court's invitation for a hearing showed that he had abandoned--or had not sincerely made--a motion for substitute counsel. The trial court did not abuse its discretion in declining to hold a second Marsden hearing.
IV
Admission of Prior Acts of Domestic Violence
Defendant contends the trial court erred in admitting his prior acts of domestic violence that occurred in 2001 and 2002. While Evidence Code section 1109, subdivision (a)(1) makes admissible prior acts of domestic violence by a defendant charged with domestic violence, subdivision (e) of that section makes acts occurring more than 10 years before the charged offense inadmissible unless the court finds admission of the evidence will serve the interest of justice. Defendant contends the trial court did not make a sufficient "interest of justice" finding to rebut this presumption of inadmissibility.
A. Background
The People sought to admit four separate acts of domestic violence by defendant against two victims pursuant to Evidence Code section 1109. In 1997, defendant punched Brenda M. several times in the face and assaulted others who tried to intervene. He was convicted of a misdemeanor violation of section 273.5, subdivision (a). In 2001, defendant threatened to kill Stephanie S. and her family and threatened her with a knife. He was convicted of criminal threats and brandishing. In 2002, defendant came to Stephanie's house in violation of a protective order; while there he raped and sodomized her, inflicting bruises, bite marks, and scratches upon her. He was convicted of violating section 220 (assault with intent to commit rape). In 2007, defendant threatened Stephanie with a knife and hit her in the face. He was convicted of a misdemeanor violation of section 273.5.
The trial court ruled the 1997 act was too remote and its admission did not serve the interests of justice. The court found the 2001, 2002, and 2007 acts against Stephanie S. were a continuous course of conduct with the latest act within the 10-year period. The court therefore admitted the 2007 and related 2001 acts. Although the 2001 acts were more than 10 years old, the court found their admission served the interests of justice because the crimes involved the same victim as the 2007 acts and were similar to the charged offenses. The court ruled the 2002 assault would be admitted for the same reason, although sanitized of any reference to the sexual violence.
These three prior incidents were admitted, as detailed ante. Stephanie testified about the events in 2002 and 2007. She did not remember the incident in 2001. The People also introduced certified copies of the convictions. At the defense counsel's request, the trial court questioned the jurors as to whether they had any independent knowledge of the Penal Code sections referred to in the conviction documents. No juror responded affirmatively.
B. Analysis
While evidence of prior criminal acts is ordinary inadmissible to show defendant's disposition to commit such acts (Evid. Code, § 1101), "the California Legislature has determined the policy considerations favoring the exclusion of evidence of uncharged domestic violence offenses are outweighed in criminal domestic violence cases by the policy considerations favoring the admission of such evidence." (People v. Johnson (2000) 77 Cal.App.4th 410, 420.) "Even if the evidence is admissible under [Evidence Code] section 1109, the trial court must still determine, pursuant to [Evidence Code] section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury." (People v. Brown (2011) 192 Cal.App.4th 1222, 1233.)
Under subdivision (e) of section 1109, prior acts of domestic violence occurring more than 10 years before the charged offense are inadmissible "unless the court determines that the admission of this evidence is in the interest of justice." The analysis required for the "interest of justice" determination is the same kind of inquiry as required by Evidence Code section 352, but requires greater justification for admissibility. (People v. Johnson (2010) 185 Cal.App.4th 520, 539.) "Thus, the 'interest of justice' exception is met where the trial court engages in a balancing if factors for and against admission under [Evidence Code] section 352 and concludes . . . that the evidence was 'more probative than prejudicial' " (as opposed to the Evidence Code section 352 requirement that the challenged evidence be admitted unless its probative value is substantially outweighed by its prejudicial effect). (Johnson, at pp. 539-540.)
A trial court's determination of the admissibility of evidence of uncharged offenses, being essentially a determination of relevance, is generally reviewed for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.)
Here, while defendant contends his priors had minimal probative value, the trial court found the prior acts were probative because they were similar to the charged offenses and showed a pattern of violence against a domestic partner. This pattern of domestic violence is precisely the rationale for admitting propensity evidence under section 1109. (See People v. Johnson, supra, 77 Cal.App.4th at p. 419, quoting legislative history [" 'The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases' "].) Thus the trial court made the necessary interest of justice finding, when it determined the remote priors were "more probative" and "not prejudicial."
Defendant contends specifically that the admission of the 2001 and 2002 priors was prejudicial because they involved more egregious conduct and provided opportunity for "speculation and innuendo." We disagree. As to the 2001 incident, only the fact of conviction was admitted. The criminal threats conviction was the same offense charged and the brandishing conviction was less inflammatory than the evidence that defendant actually hit Christina in the instant case. The trial court recognized the prejudicial nature of the 2002 incident, but resolved that issue by excluding any reference to the sexual violence and assuring that the jury did not recognize a violation of section 220 as anything other than assault. The court did not abuse its discretion in admitting defendant's prior acts of domestic violence.
Defendant further contends admission of his prior acts of domestic violence violated his due process rights. Our Supreme Court has rejected this argument. (People v. Falsetta (1999) 21 Cal.4th 903, 917.)
V
Sentencing
Defendant contends the case must be remanded for resentencing because the trial court abused or misunderstood its sentencing discretion. He argues the court erred when sentencing him by failing to give proper weight to his mental health issues and prescription drug use, and in making an inaccurate assessment of the need to protect women with whom defendant had a relationship.
A. Background
Defendant filed a Romero motion to strike his 2002 conviction for aggravated assault (§220), a strike prior. He argued the court should consider both his mental health issues and his prescription drug use, including side effects and withdrawal. He cited a bill pending before Congress recognizing the dangers of opioid addiction. Despite his record of numerous prior convictions from 1995 to 2009--13 misdemeanors and 4 felonies, and many violations of probation--defendant argued he was not a "revolving door" criminal because most of his convictions were very old and two of his felonies were not serious offenses.
The People argued defendant's criminal record, spanning over 20 years, showed he was the " 'revolving door' " career criminal the three strikes law was designed to address.
The trial court noted that while many of defendant's convictions were for misdemeanors, they were violent offenses. It found defendant had a history of violence against women; the facts of his prior domestic violence offenses were "eerily similar" to this case. His strike prior was not remote. The court denied the motion, finding defendant did not fall outside the spirit of the three strikes law.
In sentencing defendant, the court found "some mitigation" in his prescription drug use and imposed the mid-term (doubled) on count three (dissuading a witness). The court imposed one-third the mid-term (doubled) on count one (corporal injury on a spouse), choosing a consecutive term because it felt defendant was a danger to society "and particularly women that he is in a relationship with." The court imposed the mid-term on count two (criminal threats) and stayed it pursuant to section 654.
B. Analysis
When a prior felony conviction is alleged under the three strikes law, a trial court has discretion to dismiss it under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The court's discretion, however, is limited. (Id. at p. 530.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385(a), or in reviewing such a ruling, 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." (People v. Williams (1998) 17 Cal.4th 148, 161.)
In reviewing the denial of a Romero motion, the trial court's decision whether to strike a previous serious or violent felony is reviewed under a deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) "[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, 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]." (Id. at p. 378.)
The trial court was aware of its discretion here, basing its decision to deny the Romero motion on defendant's long history of violence against women. Defendant does not contend the court considered impermissible factors, but argues it improperly weighed the factors, giving insufficient weight to his mental health and prescription drug use issues. But the trial court cited these mitigating factors to justify a mid-term sentence. A sentencing court has wide discretion in weighing aggravating and mitigating factors (People v. Roe (1983) 148 Cal.App.3d 112, 119) and need not explain its reasons for rejecting mitigating factors. (People v. Thompson (1982) 138 Cal.App.3d 123, 127.) The trial court here did not abuse its discretion in denying defendant's Romero motion.
Defendant contends the court's basis for imposing a consecutive sentence has no support in the record. The court's stated reason for consecutive sentences was the need to protect society and particularly women involved with defendant. Defendant urges that Christina did not want protection; she declined the deputy's offer of an emergency restraining order, asked the court to lift the restraining order which the court did after the verdict, and Christina submitted a letter in support of defendant at sentencing. Defendant is, again, asking this court to reweigh the evidence. The trial court, like the jury, was free to reject Christina's version of events. Defendant's long history of violence against the women he was involved with amply supports the court's stated basis for imposing consecutive sentences.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Renner, J.