Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130808. W. Charles Morgan, Judge.
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
In October 2006, the Riverside County District Attorney filed an information charging defendant and appellant Checobe Rene Young with infliction of corporal injury on a spouse/cohabitant. (Pen. Code, § 273.5, subd. (a).) The information further alleged that defendant had suffered two prior convictions for which he had served prison terms (§ 667.5, subd. (b)) and that one such prior conviction additionally qualified as a strike prior (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant of the charged offense and in bifurcated proceedings the trial court found true the prior conviction allegations. The trial court also denied defendant’s motion to dismiss his strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In May 2007, the trial court sentenced defendant to an aggregate state prison term of seven years, comprised of the middle term of three years, doubled for his current conviction, and a consecutive one-year term for one of his prison priors. The court dismissed the remaining prison prior in the interest of justice under section 1385.
On appeal, defendant contends that the trial court abused its discretion in granting the prosecution’s motion to continue the trial and in failing to dismiss a strike prior. For the reasons set forth below, we shall affirm the judgment.
I
FACTS
On June 13, 2006, defendant’s then girlfriend (and now wife) Kanasha Young (victim) told, in chronological order, (1) a neighbor, (2) the 911 operator, (3) the responding police officer, and (4) the emergency room personnel that defendant had beaten her up. The victim’s injuries included bumps to her head, a bite mark on her shoulder, and a swollen lip. At trial, however, the victim recanted her prior statements.
II
ANALYSIS
A. Motion to Continue the Trial
Defendant contends that the trial court erred in granting the People’s motion to continue the trial on the priors so that the prosecutor could replace the section 969b prison packet that he had obtained, but thereafter misplaced.
1. Procedural background
After defendant was found guilty of the charged crime on January 10, 2007, he waived his right to a jury trial on the prior conviction allegations. A bench trial was set for March 2, 2007. On the scheduled date of trial, the defense successfully moved to continue the trial to April 6, 2007. Pursuant to a stipulation of counsel on April 6, 2007, the trial was again continued until Friday, April 27.
On April 27, 2007, the proceedings commenced with a hearing on defendant’s Romero motion. After the motion was denied, the court recessed until later that afternoon. When proceedings resumed, the People moved to continue the priors trial until the next court day, i.e., Monday, April 30, 2007, in order to obtain defendant’s prison packet under section 969b; the prosecutor had misplaced this packet after providing a copy to the defense about one and one-half months earlier. Defense counsel objected; he argued that the prosecutor’s inadvertence did not constitute good cause to continue the trial. The trial court granted the continuance, but stated that the court was unable to conduct the trial until Wednesday, May 2, 2007.
During the 8:30 a.m. hearing on May 2, 2007, the prosecutor informed the trial court that, although he had requested the section 969b prison packet the previous Friday, due to a clerical error, he would not be receiving the requested materials until later that morning. Over defense objection, the trial court trailed the matter until 1:30 p.m. The trial proceeded that afternoon.
2. Legal background
A trial court exercises broad discretion in determining whether good cause exists to grant a continuance under section 1050. (See People v. Jenkins (2000) 22 Cal.4th 900, 1037.) In deciding on the motion, the court must determine whether good cause exists for granting the continuance. (§ 1050, subd. (e).) A showing of good cause requires that the party seeking a continuance has prepared for trial with due diligence. (People v. Jenkins, supra, at p. 1037.) Particularly, when the party seeks a continuance to secure a witness’s testimony, the party must show that he exercised due diligence to secure the witness’s attendance, that the witness would be available to testify within a reasonable time, and that the testimony was material and not cumulative. (Ibid.) “The court considers ‘“not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”’ [Citation.]” (Ibid.) The trial court’s ruling is reviewed on appeal for abuse of discretion. (People v. Beames (2007) 40 Cal.4th 907, 920; People v. Jenkins, supra, at p. 1037.)
3. Analysis
In applying the deferential abuse of discretion standard to the facts in this case, we cannot conclude that the trial court’s order to continue the trial fell outside the bounds of reason. (See People v. Jones (1998) 17 Cal.4th 279, 318.) Here, the prosecutor requested a short continuance to obtain another section 969b packet because it had been misplaced. The court, upon discussing the situation, stated, “I think it’s a reasonable request, one court day.” We cannot deem this decision to be an abuse of discretion.
Instead of focusing on this deferential standard of review on appeal, defendant’s argument focuses on whether the prosecution showed “good cause” to the trial court. Although defendant’s argument may be persuasive to a trial court, on appeal, we review whether the trial court’s decision to continue the trial falls outside the bounds of reasons. As discussed above, we conclude that it did not.
Assuming arguendo that the order was an abuse of discretion, we find no prejudice. In this case, there was a delay of three court days in the proceedings. Defendant has failed to show how this three-day delay deprived him of a fair trial, prejudicing his case. There was no issue of unavailable witnesses or faded memories as a result of the delay. Moreover, as defendant concedes, there was no violation of defendant’s speedy trial rights.
Nevertheless, defendant argues that he was prejudiced from the delay because “[o]n April 27, 2007, [defendant] had a defense to the prior convictions: the lack of any evidence to support the prosecution’s claim of such prior convictions. On the trial date the following week, [defendant] had no such defense. This is prejudice.” We disagree. The fact that the prosecution was able to obtain the prison packet as a result of the delay did not deprive defendant of a fair trial. If we were to adopt defendant’s prejudice analysis, any continuance given as a result of unavailable witnesses or to obtain additional evidence would be deemed prejudicial.
Based on the above, we reject defendant’s contention and affirm the trial court’s true findings on defendant’s prior convictions.
B. Dismissal of Defendant’s Strike Prior
In this case, the trial court denied defendant’s Romero motion to dismiss a strike prior. Therefore, defendant’s term of three years for one count of infliction of corporal injury resulting in a traumatic condition on a spouse or former spouse was doubled to six years under the “Three Strikes” law.
Defendant contends that “the trial court abused its discretion in failing to dismiss [defendant’s] ‘strike’ prior conviction.” Despite the People’s total failure to address this contention in the respondent’s brief, we shall affirm the trial court’s order.
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that the trial court does retain jurisdiction under the Three Strikes law to dismiss or strike a prior serious or violent felony conviction allegation. However, the trial court’s discretion to dismiss the priors is very limited; the court may strike the priors “‘in furtherance of justice,’” only if the court finds, “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 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 (Williams).) Thus, it would be a rare case in which the court could abuse its discretion in declining to strike a prior conviction of a recidivist offender. Once the trial court has exercised its discretion and does not strike a prior conviction, this court’s role on appeal is very limited.
In People v. Myers (1999) 69 Cal.App.4th 305, the court held that the appropriate standard of review here is abuse of discretion. “Under that standard an appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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.]” (Id. at pp. 309-310.)
On several occasions, Courts of Appeal have reversed lower courts’ decisions to strike a prior conviction where the decision to strike was not made in light of defendant’s background, character, and prospects, and where the defendant’s extensive criminal record made him an appropriate candidate for Three Strikes sentencing. (See, e.g., People v. McGlothin (1998) 67 Cal.App.4th 468, 477; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055.) Furthermore, in People v. Humphrey (1997) 58 Cal.App.4th 809, the Second District held that a decision to strike a prior conviction based on remoteness in time is an abuse of discretion where the defendant has not led a “crime-free” existence since the time of his last convictions. (Id. at p. 813.)
In this case, the evidence shows that defendant has a lengthy criminal record. In 1995, defendant was convicted of carjacking; defendant was 16 years old when he committed the carjacking. He was sentenced to three years in state prison. Defendant was paroled and had his parole revoked once. Next, in 1997, defendant was convicted of possession for sale of marijuana. Defendant was again sentenced to three years in state prison. After he was paroled, he violated parole five times during this period. His parole was discharged on August 4, 2004. Three months later, on November 19, 2004, defendant was convicted of possessing a controlled substance. He received probation for three years and 210 days in jail. While he was on probation, on June 3, 2005, defendant was convicted of resisting arrest, a misdemeanor. He received probation for two years and 24 days in jail. Six months later, in December 2005, defendant was convicted of driving without a license. He received probation for one year and five days in jail. Thereafter, one year later, and while he was still on probation, defendant committed the current crime.
At the hearing on the Romero motion, after hearing argument from defense counsel and the prosecutor, the trial court stated, “[T]he problem I have with [defendant’s] past is, he violated parole six different times out of his first two convictions. So by virtue of it being somewhat old, he being 16, he was three months discharged from parole when he committed a new offense. He’s been in constant trouble. And he was on probation when he committed this offense. . . . He doesn’t remain out of custody or supervision but for four months, it appears, from the first commission of the offense until the present day. This is not a good thing. I mean, it obviously is not a good thing. So I don’t think that—though the statute is very punitive—I agree with that, that he would fall outside the statute, by any means, because of this conduct. So I decline to exercise any discretion in dismissing the prior strike.”
In conclusion, the record demonstrates that defendant committed numerous offenses and was punished. Defendant, however, failed to learn anything from his previous criminal conduct, as indicated by the fact that he committed the current crime while he was on probation. The record also shows the trial court’s awareness of its discretion under section 1385 and its obligations under Romero and Williams. The trial court examined all the factors laid out by Williams, took into consideration defendant’s Romero motion, the People’s response, and the probation report, and decided not to exercise its discretion to strike the prior. Therefore, we find that the trial court did not abuse its discretion in denying defendant’s Romero motion.
III
DISPOSITION
The judgment is affirmed.
We concur GAUT, J., MILLER, J.