Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF139865. Arjuna T. Saraydarian, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Rod Pacheco, District Attorney, and Jacqueline C. Jackson and Alan D. Tate, Deputy District Attorneys, for Plaintiff and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
RICHLI, Acting P. J.
An amended information charged defendant Tanya Felicia Taylor with one count of second degree robbery (Pen. Code, § 459) (count 1) and one count of possession of a check with the intent to defraud (§ 475, subd. (c)) (count 2). The information further alleged that defendant had sustained 20 prior strike convictions within the meaning of sections 1170.12 and 667 and one prior prison term within the meaning of section 667.5. In a bifurcated proceeding, a jury found defendant guilty as charged on the substantive offenses. Defendant subsequently admitted all of the prior allegations. The trial court dismissed 19 of defendant’s prior strikes and sentenced her to a total term of seven years in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
The People appeal, arguing the trial court abused its discretion in granting the motion to strike 19 of the prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (§ 1238, subd. (a)(10).) We agree with the People and will reverse the ruling and remand the matter to the trial court to resentence defendant.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Present Conviction
On October 29, 2007, defendant entered a business called “Check Cashing” and attempted to cash a check in the amount of $150,000. The check was made payable to “Tanya Taylor” (defendant) from the “Valley Queen Cheese Factory.” Defendant claimed the check was for a discrimination claim against a company she had worked for about six years earlier.
Police were subsequently alerted. Riverside County Sheriff’s Deputy Anthony Gannuscio responded to the call. Defendant told him that she was trying to cash the $150,000 check awarded to her for a discrimination claim.
Investigation revealed that defendant never worked for Valley Queen Cheese Factory and that that company had never been the subject of any discrimination litigation. The check in question was fraudulent, and the company had had problems with fraudulent checks.
B. Facts Relating to Defendant’s Prior Convictions and the Romero Motion
Defendant’s criminal history, excluding her prior strike convictions, includes offenses for misdemeanor battery (§ 243, subd. (e)) in 1997, misdemeanor false impersonation (§ 529) in 1998, and misdemeanor forgery (§ 475, subd. (a)). In each of those cases, defendant was granted probation along with a jail commitment.
From November 25, 1998, to December 20, 1998, defendant participated in 11 armed robberies; gun shots were fired during seven of them. Defendant was the getaway driver for these robberies. She was on parole for about a year and a half for these robberies when she committed the current offenses.
The details of defendant’s prior strike offenses are as follows: (1) On November 25, 1998, two men entered the Hazit Market in Perris at 6:25 p.m. One man demanded the store’s money and used a gun to fire two rounds during the crime, striking the cigarette display case, cash register, and ceiling. The electronic cash register, valued at $600, was damaged.
(2) On November 25, 1998, the Super Mini Mart in Perris was robbed by two men at 6:52 p.m. One man fired a gun above one of the victim’s heads; about $200 was taken.
(3) On November 29, 1998, the Meadow Brook Market on State Highway 74 was robbed by two men after one man fired a gun at the back counter, striking a wall. Approximately $2,000 was stolen. Police suspected a vehicle and a third person assisted in the suspects’ escape.
(4) On December 1, 1998, two men entered Mel’s Liquor & Check Cashing Store in Moreno Valley. One man pointed a firearm at the victim while demanding money. The store owners had their own firearm, and one chased the robbers away after a scuffle. Three shots were fired. The suspects entered a vehicle and fled the area.
(5) On December 1, 1998, two men entered the Open Liquor & Deli Store in Lake Elsinore about 7:54 p.m. with a firearm and robbed the place. One man pointed a gun at the clerk while demanding money. Approximately $500 was stolen.
(6) On December 4, 1998, Jr.’s Market in Moreno Valley was robbed at 4:30 p.m. by two men. One held a black semiautomatic handgun, which he pointed at the victims while demanding money. Approximately $2,000 was stolen.
(7) On December 5, 1998, at 6:50 p.m., two men entered Charlie Bois Liquor Store in Moreno Valley and robbed the store of about $200. During the robbery, one man pointed a semiautomatic pistol at the victim while demanding the money.
(8) On December 5, 1998, the A & M Market on State Highway 74 was robbed by two men at 7:16 p.m. During the robbery, a gun was pointed at an employee while $2,000 in cash and checks were taken by both suspects. Shots were fired at one of the employees when he tried to follow the men.
(9) December 9, 1998, a Washington Mutual Bank in Sun City was robbed. One suspect fired a shot at the ceiling, one of them kicked an employee in her head and side, and one of them “shoved a gun against” another employee’s head. When a customer tried to follow the suspects as they left the bank, a shot was fired at her. The robbers stole about $3,195 in cash and fled in a car being driven by a female.
(10) On December 20, 1998, two men entered Country Store Liquor in Moreno Valley at 7:43 p.m. One man pointed a gun at a clerk and demanded money; he fired shots when he was given only $100.
(11) On December 20, 1998, the Car Wash & Market in Perris was robbed by two men; one wielded a firearm and pointed it at the clerk and while demanding money. They stole approximately $500 in cash and $100 worth of lottery tickets.
Defendant was arrested on December 21, 1998, along with the two male suspects. She was apprehended while attempting to cash a large number of the lottery tickets stolen the previous day. During the investigation, officers discovered that defendant had used her vehicle to transport the armed robbers and was the getaway driver. Defendant shared the proceeds from the robberies with the male suspects.
On December 10, 2000, defendant was convicted for multiple serious felonies, including one count of attempted robbery (§§ 664, 211), 15 counts of robbery (§ 211), one count of assault with a firearm (§ 245, subd. (a)(2)), and three counts of assault with a semiautomatic firearm (245, subd. (b)), resulting in a sentence of 14 years in state prison.
It appears that defendant was actually convicted of 17 counts of robbery. The record is unclear as to why she was only sentenced on 15 of those counts.
Defendant served about six years in state prison before she was released on parole on May 12, 2006. Defendant violated parole on October 29, 2007, when she committed the instance offenses.
Even after being convicted of the current crimes, defendant continued to deny attempting to cash the check; she did not admit any culpability. She even submitted a letter to the court denying her guilt in the current offenses. On April 21, 2008, defendant filed a motion to dismiss 19 of her strike convictions, arguing that her strikes were committed at the behest of her then-boyfriend, that she had played a minimal role in committing the priors, that she had regularly complied with her parole terms, that the priors were remote in time, that the priors arose from a single course of conduct, and that the current offenses were of a nonviolent nature. The People opposed the motion.
A hearing on defendant’s motion to dismiss her prior strikes was held on May 16, 2008. Following arguments from counsel, the court granted defendant’s request to dismiss 19 of her prior strikes. In making its decision, the court reasoned: “Well, [defendant], this is a real interesting case you have here. You have, ten years ago, 20 cases — or 20 counts — one case, 20 counts that you were involved in; and although your participation was what we call maybe passive as opposed to being the actual robber or the actual person who used weapons in perpetrating those offenses and crimes, those were violent crimes and you did have a part in it and in sharing some of the proceeds of those crimes in terms of the... money that was stolen and taken and in placing a lot of people in jeopardy of injury and harm and possible death, and the sheer number of those counts make this an interesting case. We’re not talking about one or two, we’re talking about 20.
“Of course, in your favor, you have several things in terms of the nature of the charges that you were just convicted of. The amount was high, but the probability or possibility of that being cashed was rather slim. So you may have thought that you may be able to go and cash that check, but the fact is that it was one of these form checks that area sent by solicitors, the amount being one-fifty, the information on it being inaccurate and not accessible to — anyone who was to verify the validity of that check would have probably made it impossible or highly improbable to cash of that the cash would be given to you pursuant to the... check. [¶]... [¶]
“... And based on section... 1385 of the Penal Code, the Court does have jurisdiction under the Romero case to strike the priors if the Court feels that this matter was outside the spirit of the three strikes law.
“And the Court has carefully reviewed... the bond in this case and the circumstances of [defendant’s] situation, and the factors that the Court has considered include the defendant’s Constitutional right to be free from cruel and unusual punishment. It’s very reasonable to assume that for attempting to cash a — a check that probably would not have been cashed in any event,... 25 years-to-life may be considered cruel and unusual in this case, especially when this is happening ten years after your last strike conviction.
“In the interest of society,... this is a nonviolent crime.... The person involved in this case, who was presented with the check, knew you. You knew that place and you cashed checks there before. So it was a nonconfrontational situation where you went in to cash the check. It’s unlikely the check in this case would have been cashed, as I mentioned before.
“Sending you to prison for 25 years or more is going to be very detrimental to you.... [¶]... [¶]... 25 years is going to have a considerable impact on you and is detrimental.
“The prior offenses arose out of a single period of abhorrent behavior, and they were all taken care of in a single proceeding. So that’s a factor the Court can consider, as opposed to it being from a different time period involving different situations.
“No weapon was used in this present offense, as I mentioned. No threats in the current offense. It appears that if I send you to prison for that amount that the sentence will be disproportionate to the nature of the violation, your history — since parole has been pretty good — you’re working, making some money, and staying out of trouble basically since that event — since your last parole, and your history prior to the last conviction doesn’t appear to have any... violent crimes that you have been involved in.
“The Court has carefully considered all these factors and feels that while all the above factors the Court has mentioned places you outside the spirit of the three strikes law in terms of the present offense... you have only one prior serious or violent felony conviction for the purposes of the sentencing. [¶]... [¶]
“So the Court[,] based on its discretion and in articulating the factors that the Court has just mentioned — has decided under Penal Code 1385 to not consider 19 of the 20 prior strikes... which brings us to the one strike that still makes some sort of an impact on your sentence. And I read your letter.”
The court found defendant lacked remorse and, finding that the aggravating factors outweighed the mitigating factors, sentenced defendant to the upper term of six years on the substantive offense, plus one year for the prior prison term.
II
DISCUSSION
The People contend that the trial court abused its discretion when it struck 19 of defendant’s prior strike convictions. We agree with the People.
We review the trial court’s ruling for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 504.)
“‘The governing canons are well established: “This discretion... is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]” [Citation.]... “[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” [Citation.]’ [Citation.] [¶] The abuse of discretion standard ‘is deferential.... But it is not empty.’ [Citation.]” (People v. Gaston (1999) 74 Cal.App.4th 310, 314-315.)
In other words, that discretion, while broad, is by no means absolute. Its exercise must proceed in strict compliance with section 1385, subdivision (a)’s dictate that the dismissal be in furtherance of justice and requires consideration of both the constitutional rights of the defendant and the interests of society represented by the People. “‘At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” [Citations.]’ [Citation.] ‘Courts have recognized that society, represented by the People, has a legitimate interest in “the fair prosecution of crimes properly alleged.” [Citation.]’” (Romero, supra, 13 Cal.4th at pp. 530-531.)
Here, we must determine whether the reasons given by the trial court are a reasonable basis for concluding that defendant should be deemed outside the spirit of the three strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 336 (Strong).)
The leading case on how the trial court can and should exercise this discretion is People v. Williams (1998) 17 Cal.4th 148 (Williams). There, in 1995, the defendant was found guilty of driving under the influence of phencyclidine. (Id. at p. 152.) His criminal record had begun in the 1970’s, with four juvenile adjudications for burglary. (Id. at p. 153.) In the 1980’s, he was convicted of one misdemeanor and four felonies, including the two strike priors, and he repeatedly violated parole. Between 1991 and 1995, he suffered seven misdemeanor convictions: three for driving under the influence, two for driving without a license (or with a suspended license), one for possession of a controlled substance, and the most recent one for spousal battery. He had been arrested for assault with a deadly weapon, but this had resulted in parole revocation, not a criminal conviction. (Id. at p. 154.) He was unemployed. He had a substance abuse problem, which he had not addressed effectively. (Id. at p. 155.)
The trial court chose to dismiss one of the defendant’s two strike priors. It explained that the “‘prior convictions for the serious felonies were in 1982. It would appear, though, since that time he has run afoul with [sic] the law many times, but not for crimes involving actual violence.’” (Williams, supra, 17 Cal.4th at p. 156.)
The Supreme Court held this was an abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.) It held that in ruling whether to strike or vacate a prior conviction allegation, the 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 and hence should be treated as though he had not previously been convicted of the prior crimes. (Id. at p. 161.)
In holding that Williams could not be deemed outside the spirit of the three strikes law, the Supreme Court explained, “As to his present felony: It is a conviction of driving under the influence that followed three other convictions of driving under the influence; ‘the existence of such convictions reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable — but had failed or refused to learn his lesson’ [citation]. As to his prior serious and/or violent felony convictions: The record on appeal is devoid of mitigation.” (Williams, supra, 17 Cal.4th at p. 163.)
Moreover, the court noted that there were few favorable factors about Williams’s background, character, or prospects. Although Williams had 13 years between his prior convictions and his present felony, the court found this to be insignificant because he did not refrain from criminal activity during that span of time. During those 13 years, the court noted that Williams was often in prison or jail. When he was not, he violated parole and probation. (Williams, supra, 17 Cal.4th at p. 163.) Therefore, the Supreme Court held that “the superior court’s order fell outside the bounds of reason under the applicable law and the relevant facts.” (Id. at p. 164.)
After Williams, an “overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career. [Citations.]” (Strong, supra, 87 Cal.App.4th at p. 338.) In Strong, a court of appeal reversed a trial court’s dismissal of one of the defendant’s strikes. The trial court had granted the dismissal on the basis, inter alia, that because the defendant was 41 years old, he posed a reduced risk to society. (Id. at p. 334.) The appellate court concluded that the defendant in Strong was “‘the kind of revolving-door career criminal for whom the Three Strikes law was devised.’” (Id. at p. 340, fn. omitted.)
In this case, it appears the trial court dismissed 19 of defendant’s prior convictions mainly due to the nonviolent nature of her current offenses, the time span since her priors and current offenses (10 years), and her being 38 years old. The court also noted the priors occurred during a “single period of abhorrent behavior, and they were taken care of in a single proceeding” and that defendant had been doing “pretty good” on parole.
For the reasons set forth below, we find that the trial court abused its discretion in dismissing 19 of defendant’s prior strike allegations.
First, the trial court did not properly balance the Williams factors as outlined above. Rather, it appears the court dismissed the prior strikes based on its personal sympathy for defendant and the nonviolent nature of the present offenses. It is an abuse of discretion for a trial court to dismiss prior strike convictions “‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant.’” (Romero, supra, 13 Cal.4th at p. 531.)
Although defendant’s current offense cannot be deemed a violent felony, this reason, alone, cannot be the basis of striking 19 of her prior strikes. In Strong, supra, 87 Cal.App.4th 328, the court stated, “Since the express intent of the Three Strikes law is ‘to ensure longer prison sentences’ for any defendant who has a qualifying strike and subsequently commits ‘a felony,’ the nonviolent or non-threatening nature of the felony cannot alone take the crime outside the spirit of the law.” (Id. at p. 344, fn. omitted.) Therefore, the trial court abused its discretion in striking 19 of defendant’s prior strikes based on the nonviolent or nonthreatening nature of the current offenses and personal sympathy for defendant.
Second, the trial court incorrectly relied on the priors occurring during a “single period of abhorrent behavior....” The prior strikes here were distinct: most committed on different days, involved many different victims, and were not committed during a single period of aberrant behavior but rather spanned a month. We reject defendant’s argument that a one-month period is sufficiently short to constitute a “single period.” (Cf. People v. Garcia (1999) 20 Cal.4th 490, 493, 503 [different burglaries committed on the same day suggested a single period of aberrant behavior].) The prior strikes here involved separate acts of violence or threats of violence, and the crimes were committed at different times and at separate places. Accordingly, the trial court abused its discretion in finding the crimes were committed so closely in time and place as to indicate a single period of aberrant behavior. (See Cal. Rules of Court, rule 4.425(a)(1)-(3).)
Moreover, we believe the trial court failed to fully consider defendant’s prior felony convictions. As laid out in the probation report, numerous victims were subject to violent robberies; some victims were shot at, some were kicked, and most had guns pointed at their heads or bodies. The record indicates defendant was deeply involved in these criminal offenses. She drove her cohorts to each robbery location, was their means of escape after every crime, and shared in the proceeds of each robbery.
We also take issue with the trial court’s characterization of defendant being “pretty good” on parole. In fact, after about five and one-half years in state prison and a mere 18 months after release on parole, defendant committed the instant two felony offenses. She entered a check cashing place with which she was familiar with the intent to cash a $150,000 check that she knew was fraudulent. Notably, since she was convicted of forgery 10 years earlier, she clearly knew her actions were criminal. As the People point out, this necessarily speaks poorly of defendant’s character and prospects for the future. Furthermore, as the trial court found in imposing an upper-term sentence, defendant lacked remorse for her current actions and continued to deny any culpability even after she was found guilty.
Defendant’s record between the time she committed her priors and the current felony offenses also reveals that she did not lead a crime-free life or that her priors were remote in time. As the court in People v. Humphrey (1997) 58 Cal.App.4th 809, 813, has stated, “In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on. To be sure, a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways. Where, as here, the defendant has led a continuous life of crime after the prior, there has been no ‘washing out’ and there is simply nothing mitigating about a 20-year-old prior. Phrased otherwise, the defendant has not lead a ‘legally blameless life’ since the 1976 prior. [Citations.] Far from being ‘washed out,’ this prior was ‘dyed in.’”
Based on the above, we find that the trial court abused its discretion in striking 19 of defendant’s prior strike allegations based on her conduct while on parole and the age of the priors.
The trial court also noted that if it did not strike the prior convictions, “sending” defendant to 25 years to life “may be considered cruel and unusual” and that “the sentence will be disproportionate to the nature of the violation....” We disagree. The constitutional protection against grossly disproportionate sentences applies only in the “‘exceedingly rare’” and “‘extreme’” case. (Ewing v. California (2003) 538 U.S. 11, 21 [123 S.Ct. 1179, 155 L.Ed.2d 108].) For example, in Ewing, the United States Supreme Court concluded the Eighth Amendment did not prohibit a sentence of 25 years to life under California’s three strikes law for a repeat offender who shoplifted golf clubs worth about $1,200 and whose prior convictions included three residential burglaries and one first degree robbery. (Ewing, at pp. 17-18, 29-30.) Indeed, defendant’s sentence of 25 years to life would not be disproportionate to her culpability. (See Lockyer v. Andrade (2003) 538 U.S. 63, 66-67, 73-74 [ 123 S.Ct. 1166, 155 L.Ed.2d 144] [two consecutive terms of 25 years to life for third strike conviction involving two thefts of videotapes not cruel and unusual punishment].) Numerous courts have also held that sentencing a defendant to 25 years to life for violating section 290 (failing to register as a sex offender) was not cruel or unusual punishment. (E.g., People v. Poslof (2005) 126 Cal.App.4th 92, 109; People v. Meeks (2004) 123 Cal.App.4th 695, 710; People v. Johnson (1998) 67 Cal.App.4th 67.) It is obvious that the triggering offenses and criminal history at issue in this case are considerably more serious, indicating defendant poses a greater risk to the public.
Based on the above, we find that the trial court’s reasoning that defendant’s sentence would be disproportionate is not supported by the evidence in this case. Therefore, the dismissal of the 19 prior strike allegations based on this reasoning was an abuse of discretion.
In sum, we note that the three strikes law is aimed at recidivists who have committed serious, but not necessarily violent, crimes. In this case, the reasons the trial court cited for dismissing the 19 prior strikes are not reasonable bases for concluding that defendant should be deemed to be outside the spirit of the three strikes law.
III
DISPOSITION
The order dismissing the 19 prior strikes is reversed. The matter is remanded to the trial court to for resentencing.
We concur: KING, J., MILLER, J.