Opinion
A159511
06-29-2021
THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR RODARTE, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 19-SF-007186-A
BANKE, J.
Defendant Julio Cesar Rodarte appeals from his convictions, following a court trial, for felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor failure to register as a sex offender (Pen. Code, § 290.011, subd. (a) ). The trial court additionally found true three sentencing enhancements-that he had suffered five prior felony convictions (§ 1203, subd. (e)(4)), a strike prior (§ 1170.12, subd. (c)(1)), and a prison prior (§ 667.5, subd. (b). After the court declined to grant defendant's “Romero motion” to strike his 2004 prior conviction for carjacking, it sentenced him to 32 months in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant maintains the court abused its discretion in denying his Romero motion by failing to give sufficient weight to mitigating factors. He further maintains the court committed constitutional error in considering his refusal to cooperate with probation in preparing the sentencing report as evidence of lack of remorse and, thus, as an aggravating factor. We affirm.
Discussion
Standard of Review
As defendant recognizes, we review a ruling on a Romero motion for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367 (Carmony).) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”' [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree....”' Taken together, these precepts establish that 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 pp. 376-377.)
Defendant seems to suggest that some kind of gloss should be applied to the abuse of discretion standard in light of recent legislative changes to various criminal statutes designed, in part, to reduce the number of defendants committed to state prison. Despite these changes, however, the Legislature has not indicated any intent to narrow a trial court's sentencing discretion to strike pursuant to a Romero motion. “The purpose 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 one or more serious or violent felony offenses.' ” (People v. Laanui (2021) 59 Cal.App.5th 803, 815, citing § 667, subd. (b).) We therefore heed, as we must, our Supreme Court's directive in Carmony as to the scope of our review.
The Romero Factors
In deciding whether to grant a Romero motion, the trial court 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.' ” (Carmony, supra, 33 Cal.4th at p. 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court issued its ruling on defendant's motion from the bench, stating in pertinent part:
“The court has read and considered the moving papers on the Romero motion and the opposition by the People. The court has considered the defendant's background and also the probation report in relation to the motion. [¶]... [¶]... There was no way to determine his remorse at all although there is some... rather vague [indication] that the defendant is trying to work on his behavior.... [¶] The defendant has continuously failed to adhere to court orders and neglected taking advantage of the opportunities given to him by probation and parole.... As I look at the mitigating factors, I have to weigh the factors in mitigation under the rules of court in relation to the factors in aggravation as set forth in California Rules of Court 4.421. [¶] The court finds that there is a lack of cooperation and some aggravation.... The defendant has served a prior term in prison or county jail... the defendant's prior performance on probation, mandatory supervision, post release community supervision or parole was unsatisfactory.... Accordingly, the motion to strike the strike by the defendant is denied.”
Defendant first asserts the trial court abused its discretion by failing to give sufficient weight to the following mitigating factors: (1) defendant's drug addiction and mental illnesses; (2) the elevation of defendant's otherwise misdemeanor possession conduct to a felony due merely to his failure to register as a sex offender; and (3) the remoteness of the 2004 carjacking conviction.
The record demonstrates the court was aware of its discretion and duly considered mitigating factors. Indeed, it specifically acknowledged defendant's struggles with mental illness, his addiction to methamphetamine, and the medical care he had begun to receive for his illnesses. As for the failure to register, the court acknowledged the prosecution's argument as to the importance of registration as a safeguard against potential recidivism and that compliance, or noncompliance, therewith reflects the degree of, or lack thereof, of defendant's personal responsibility for his conduct. Although the court did not expressly address the remoteness of the 2004 felony conviction or the registration requirement in denying the Romero motion, “unless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria” for sentencing, including any mitigating factors. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317-1318.) We see no basis, on this record, to conclude the trial court failed to properly exercise its discretion in evaluating appropriate mitigation factors.
Defendant next asserts the court abused its discretion in considering lack of remorse, positing that his drug possession and failure to register crimes “did not involve real victims, ” in contrast to violent crimes perpetrated against individuals. Defendant cites no authority in support of his no-victim assertion, and we are aware of none. Moreover, defendant sought to strike his conviction for carjacking, a crime that did entail a victim even under defendant's view of the term. The trial court rightly considered the “nature and circumstances of [defendant's]... prior serious and/or violent felony convictions” in determining whether defendant fell within the scope of the Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 377, italics added.)
Defendant lastly asserts the court “committed constitutional error in giving weight to [his] right to remain silent in dealing with probation during preparation of the presentence report.” He bases this argument on the following observation by the court: “[defendant] ripped up the probation application and did not want to participate in the process.” Defendant has taken this comment out of context and read far too much into it.
The probation report stated defendant did not complete his probation application and that he told the probation officer “he ‘ripped the application' and did not wish to participate in the process because he did not want the information he provided to be used ‘against him.' ” The report accordingly noted defendant had not cooperated in preparing the report, and the officer was therefore “unable to gauge the defendant's level of remorse... since no statement or information was submitted by him.”
At the sentencing hearing, the court questioned defense counsel about defendant's lack of cooperation with probation. Counsel responded: “I told [defendant] he may not want to say anything about the present offense because... we had a court trial.... I don't really have a good reason why he would rip up the probation form.... He told the probation officer he didn't want it to be used against him which... shows a lack of understanding.” Defendant then explained: “I was upset.” The prosecution observed, in turn, “The fact that he is not speaking to the probation officer because he is simply upset that day means... he cannot be compliant.”
To begin with, the fact defendant told the trial court he had refused to cooperate because he “was upset, ” and not because it would have violated his Fifth Amendment rights, raises some question as to whether he abandoned any supposed Fifth Amendment concern and thus forfeited such claim on appeal. But even assuming he preserved the issue, his claim of constitutional error does not succeed on the record here.
Prefacing its reasons for denying the Romero motion, the trial court stated, “I appreciate on one hand... that [defendant] said he didn't want the information to be used against him. But quite frankly his history is what's being considered notwithstanding the interviews with the probation department. And that's something that the defendant... in the interest of reasonable care should have considered.... [T]he probation department was looking for [] anything in mitigation with regard to [its] sentencing recommendation.”
Under Mitchell v. U.S. (1999) 526 U.S. 314, a defendant's Fifth Amendment privilege against self-incrimination extends to the sentencing phase of a criminal case. (Mitchell, at pp. 328-329.) California caselaw likewise makes clear that Fifth Amendment rights continue through sentencing. (People v. Conerly (2009) 176 Cal.App.4th 240, 252; People v. Fonseca (1995) 36 Cal.App.4th 631, 634-635.) The courts in Conerly and Fonseca did not reach-and the court in Mitchell explicitly avoided expressing a view on-whether silence may be considered in aggravation or mitigation of a sentence determination. (Mitchell, at p. 330 [“Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in § 3E1.1 of the United States Sentencing Guidelines (1998), ... is not before us, and we express no view on it.”].)
In People v. Lewis (2001) 25 Cal.4th 610, 670-671, our Supreme Court considered a similar issue-whether a prosecutor's assertion, during closing argument in a capital case, that there was no evidence of mitigating circumstances, constituted Griffin error. Our high court held it did not, stating, “Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence. Directing a jury's attention to a defendant's failure to testify at trial runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt. [Citations.] The prosecutor is permitted, however, to comment on the state of the evidence, ‘including the failure of the defense to introduce material evidence or to call witnesses.' ” (Lewis, at p. 670.) And in the case at hand, “[t]he prosecutor did not impermissibly argue to the jury that the People's evidence was uncontradicted or unrefuted because defendant failed to take the witness stand. [Citation.] The prosecutor's remarks were not directed, expressly or impliedly, at defendant's invocation of the right to silence at the penalty phase. Rather, they concerned the dearth of mitigating evidence, a proper subject for argument.” (Ibid.; see People v. Brady (2010) 50 Cal.4th 547, 565-566 (Brady) [no Griffin error where prosecutor argued that defendant “ ‘did not appear to refute the issue of identity' ”; rather, this was commentary on the state of the evidence].)
Griffin v. California (1965) 380 U.S. 609.
The same may be said of the trial court's comment as to defendant's lack of cooperation with probation. Read in context, it is apparent the court was not penalizing defendant for arguably invoking his Fifth Amendment rights. Rather, it was commenting on the state of the information from probation as to mitigation. Further, the court observed aggravation was “borne out by the probation report... in relation to the defendant's conduct in ripping up the application for the probation report.” This was a comment on defendant's self-reported conduct, not on his invocation of the Fifth Amendment.
In any case, the trial court went on to emphasize that defendant's criminal “history is what's being considered notwithstanding the interviews with the probation department.” Accordingly, given the entirety of the record, defendant cannot demonstrate prejudicial error resulting from the court's observation that he had not cooperated with probation. (See Chapman v. California (1967) 386 U.S. 18, 24; see also Brady, supra, 50 Cal.4th at p. 566 [even if prosecutor committed Griffin error, it was not prejudicial].)
Disposition
The judgment is affirmed.
We concur: Humes, P.J., Margulies, J.