NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H-57997)
Defendant Bradley Craig Mathes appeals from a judgment of conviction, following a jury trial, of attempted extortion. (Pen. Code, §§ 519, 524.) The trial court sentenced defendant to the upper term of three years, doubled to six years in state prison as his second strike. Defendant raises two issues on appeal. He contends the trial court (a) used the wrong sentencing provision when it imposed the three-year upper term and (b) abused its discretion in denying his Romero motion to dismiss allegations of a prior "strike" conviction. We affirm.
All further statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Naveed Khan was walking home from the BART station in Union City at about 8:30 p.m. when defendant called to him. Defendant approached Khan from behind on a mountain bicycle and asked Khan, " 'what did you say to me[?]' " As Kahn walked away, defendant followed and said, "how much money do you have, give me your money." Khan responded he would not give defendant any money, and defendant continued to follow him saying, " 'it's going to get dark up there.' " Defendant then told Khan, " 'give me your money or I'll blow you away' " and stuck his hand into a black plastic bag hanging from his bike as he spoke in a "very threatening" manner. Khan "thought he was going to pull out a gun or a knife." Defendant demanded that Khan give him money "three or four times." When defendant reached into his bag a second time and still did not pull out a weapon, Khan began to think defendant did not have a weapon. Defendant eventually stopped following him, and Khan called the police, who arrived five to 10 minutes later. During an in-field show-up, Khan identified defendant as the man who had followed him, whereupon defendant was arrested.
The district attorney charged defendant with second degree attempted robbery. (§§ 664, 211.) The information additionally alleged defendant had suffered two prior convictions, one for robbery and one for unlawful driving or taking of a vehicle, and further alleged the current offense was a "strike" offense and defendant would, if convicted as charged, be sentenced as having suffered a second "strike."
The jury found defendant guilty of the "lesser-included offense" of attempted extortion. The trial court then found the prior robbery allegation true, but on its own motion dismissed the section 667, subdivision (a)(1) allegation as defendant had been found guilty only of a lesser included offense. At the request of the district attorney, the court also dismissed the second prior allegation for purposes of sentencing.
Defendant then made a Romero motion to dismiss the remaining alleged prior conviction for sentencing purposes so as to render himself eligible for probation. Defendant presented letters attesting to his good character from family and friends, efforts to treat his substance abuse, a letter from a social worker, an acceptance letter from a residential educational organization, and a letter from defendant on his own behalf detailing his past substance abuse issues and his "need" for treatment. Additionally, a social worker spoke on defendant's behalf and emphasized that since his last arrest, defendant had taken a number of proactive and positive steps towards overcoming his addiction and turning his life around, including seeking and obtaining admission to Delancey Street Foundation.
In light of defendant's extensive criminal history, the district attorney and the probation department urged the court to impose the maximum possible sentence.
Explaining its sentencing decision at length, the court denied defendant's Romero motion and sentenced defendant to a total prison term of six years, the upper term of three years for the attempted extortion conviction, doubled for the prior conviction.
At the same time, the court sentenced defendant on another pending case and on a probation violation matter, with the sentences to run consecutively. --------
The Trial Court Used the Correct Sentencing Provision
Defendant contends section 524 prescribes a one-year maximum term for either a county jail or a state prison sentence for attempted extortion, and the trial court erred in utilizing the triad prison terms set forth in section 18. Section 524, which spells out the sentencing for attempted extortion states: "Every person who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort money or other property from another is punishable by imprisonment in the county jail not longer than one year or in the state prison or by fine not exceeding ten thousand dollars ($10,000), or by both such fine and imprisonment." Section 18, in turn, sets forth the punishment for felonies, crimes punishable by state prison, not otherwise prescribed. It states in pertinent part: "Except in cases where a different punishment is prescribed . . . every felony . . . is punishable by imprisonment for 16 months, or two or three years in the state prison." (§ 18, subd. (a).)
The courts have repeatedly rejected defendant's assertion that the "not longer than one year" language employed in section 524 limits both a county jail and a state prison term. As these courts have held, the one-year limitation applies only to a county jail sentence, and the general triad scheme set forth in section 18 applies to a state prison term. (See In re Eric J. (1979) 25 Cal.3d 522, 529 [same language in sentencing statute for second degree burglary (§ 461); § 18 applied to felony term]; People v. Jackson (1987) 196 Cal.App.3d 380, 385 & fn. 2, disapproved on other grounds in People v. Rodriguez (1990) 51 Cal.3d 437, 444, fn. 3 [same language in sentencing statute for furnishing a controlled substance (Health & Saf. Code, § 11355); § 18 applied to felony term]; People v. Bell (1984) 159 Cal.App.3d 323, 328 [same language in sentencing statute for attempted second degree burglary (§ 461); § 18 applied to felony term].) Accordingly, the trial court did not err in looking to section 18 for the potential state prison terms. The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Romero Motion
Defendant also claims the trial court abused its discretion in denying his Romero motion urging the court to dismiss the prior strike allegation for sentencing purposes. Defendant made this motion in an attempt to restore his eligibility for probation so he could participate in the Delancey Street Foundation program.
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.' " (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony), quoting People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
As defendant recognizes, we review a ruling on a Romero motion for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 376.) "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. [Citations.] 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 . . . ." ' [Citations.] 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.)
There was no abuse of discretion here. The trial court reviewed the "very . . . complete" sentencing packet defendant submitted, the probation report and the district attorney's sentencing recommendation. The record also demonstrates the court fully understood the factors it was to consider in ruling on such a motion and that it gave much thought to the appropriate sentence in this case. It is clear the court took account of defendant's recent efforts to turn his life around and the difficulties he had experienced in his life. It also took account, however, of defendant's extensive criminal history, including the string of offenses that culminated in the instant conviction, and that he was on probation when he committed the instant offense, as well as the nature of his conduct in committing the offense.
Defendant nevertheless contends the trial court should have more heavily weighed the mitigating factors, contrasting his case with People v. Williams, supra, 17 Cal.4th 148. In Williams, the Supreme Court expounded on its holding in Romero and affirmed the Court of Appeal's judgment to the extent it concluded, given the defendant's " 'extraordinary record of prior criminality,' " the trial court had abused its discretion in granting a Romero motion. (Williams, at pp. 157-158, 165.) Defendant claims his criminal history is far less severe than that of the defendant in Williams and therefore the trial court could have, and should have, granted his motion. The Supreme Court also emphasized, however, the "deferential" standard of review of Romero rulings—that it asks "whether the ruling in question 'falls outside the bounds of reason' " under the applicable law and the relevant facts. (Williams, at p. 162.) Thus, just because a defendant's criminal record may be comparatively less extensive than that of the defendant in Williams, does not mean a trial court will abuse its discretion in denying a Romero motion. Indeed, it was because of the "extraordinary" record in Williams that the appellate courts concluded the trial court abused its discretion in granting such a motion. Here, given defendant's record, it certainly cannot be said the trial court acted beyond the bounds of reason in denying his Romero motion.
Nor does People v. Cluff (2001) 87 Cal.App.4th 991, compel the conclusion the trial court abused its discretion here. In Cluff, the defendant, who was required to register as a sex offender, registered with the chief of police and did not change his residence, but failed to comply with a separate requirement that he annually (within five days of his birthday) confirm his residence was unchanged (§ 290). As a result, he was convicted of failing to comply with the sex offender registration scheme. (Cluff, at p. 994.) Finding that the defendant had suffered three prior strikes and denying a Romero motion, the trial court " 'with a heavy heart' " sentenced him to 25 years to life in prison based, in part, on its conclusion there had been obfuscation on the defendant's part " 'that goes beyond the technical [section] 290 violation.' " (Cluff, at pp. 994, 1002.) In reversing, the Court of Appeal stated "[t]his case involves the most technical violation of the section 290 registration requirement we have seen," and ruled the "trial court's analysis [was] disconnected from the evidence, and entered the realm of imagination, speculation, supposition and guesswork." (Ibid.) Concluding there was insufficient evidence to "support the inference of obfuscation that was central to the trial court's ruling," the appellate court concluded the trial court had abused its discretion in denying the defendant's Romero motion. (Id. at p. 1004.) Defendant maintains his criminal history is also less severe than that of the defendant in Cluff and therefore if the trial court in Cluff acted unreasonably in denying the defendant's motion, then the trial court here, also acted unreasonably in denying defendant's motion. But, here, defendant's conviction did not involve a hyper-technical violation of a statute such that two-strike sentencing would have placed the case "outside the [Three Strike's] scheme's spirit." (Williams, supra, 17 Cal.4th at p. 161.)
In sum, there is no basis on which to find an abuse of discretion here.
The judgment is affirmed.
Banke, J. We concur: /s/_________
Margulies, P.J. /s/_________