P. v. Panza

Filed 3/6/06 P. v. Panza CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

In San Diego County Superior Court case No. SCD183698, Sancho Panza entered a negotiated guilty plea to attempted robbery (Pen. Code, §§ 664/211)^[1] and admitted personally using a firearm (§ 12022.5), a prior strike conviction allegation (§§ 667, subds. (b)-(i), 1170.12, 668), a prior serious felony conviction allegation (§§ 667, subd. (a), 1170.12, 668), and serving a prior prison term (§§ 667.5, subd. (b), 668). The same day, in San Diego County Superior Court case No. SCD185940, he entered negotiated guilty pleas to failure to appear while released on bail (§ 1320.5), and reckless driving to evade an officer (Veh. Code, § 2800.2, subd. (a)). He admitted he committed these offenses while released on bail and a prior strike conviction allegation. (§ 12022.1, subd. (b).) The court denied a motion to dismiss the prior strike conviction allegation and in case NO. SCD183698 sentenced him to prison for 16 years eight months: double the two-year middle term for attempted robbery with a prior strike conviction, enhanced by the three-year lower term for firearm use, and a consecutive five-year term for the prior serious felony conviction; and in case No. SCD185940 sentenced him to consecutive one-year-four-month terms for (1) failing to appear and (2) reckless driving to evade an officer with a prior strike conviction and a full two-year term for committing a crime while released on bail. The court dismissed the prior prison term enhancement. Panza contends the trial court erred by declining to dismiss the prior strike conviction allegation under section 1385.

FACTS

On June 25, 2004, Humberto Rodriguez was walking in the area of 30th Street and Logan Avenue when Panza approached, pointed a gun at him and demanded money. Rodriguez had no money. Panza told Rodriguez, "This is Shelltown," referring to the territory of a gang, and left the area. On July 13, the People filed an information charging Panza with attempted robbery while using a firearm and alleging two prior strike convictions. Panza was released on bail but did not appear at a readiness conference.

On October 12, 2004, an officer with the fugitive task force attempted to detain Panza. Panza drove on Interstate 5 and Interstate 805 at speeds of 90 to 100 miles per hour attempting to evade the officer. He was apprehended shortly thereafter.

DISCUSSION

When entering his guilty pleas, Panza admitted a prior strike conviction alleged as assault with a deadly weapon (§ 245, subd. (a)(1)) and the People moved to dismiss a prior strike conviction alleged as attempted robbery arising out of the same incident. In papers supporting a motion to dismiss the prior strike conviction allegation (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), Panza's counsel referred to the attempted robbery conviction as the prior strike conviction allegation he was moving to dismiss. However, the prior attempted robbery conviction allegation had already been dismissed as part of the plea bargain. The court denied Panza's motion at the sentencing hearing, stating:

"Well, the first issue that is before the court today is the potential exercise of discretion under [section] 1385. The court does have the authority, under the principles enunciated by the Supreme Court in [People v. Romero, supra, 13 Cal.4th 497,] the discretionary authority to strike a strike for sentencing purposes. Subsequent Supreme Court cases and higher court cases have helped to shape the principled exercise of discretion in circumstances such as this and remind the court that the court has to determine whether or not the individual before the court and the crime before the court falls within the spirit of the [three strikes] law. The courts have been very pointed in reminding trial courts to exercise this discretion, not merely with respect to an analysis of the individual before the court in isolation, but also considering the interests of society and the need to protect society when exercising the discretion.

"And in considering the use of this discretion, I have reviewed the facts and circumstances of these cases; I have reviewed the defendant's involvement in these cases; I have reviewed the facts and circumstances of the previous case; I have reviewed his personal responsibility for what happened in the previous case. I've also taken a look at the background of this defendant, the support that he has in the community and many of the other positive factors that have been pointed out most poignantly by his wife. And that includes job training; it includes participation in a recognized church, and it does include the love and support of his family.

"On balance, I think it is important, first, to note that, although Mr. Panza claims limited responsibility for the strike conduct--that is, the robbery and using the gun--he was convicted after jury trial in that case. So that the extent to which he attempts to separate himself from that previous conviction and the conduct therein, I think needs to fall on deaf ears. The jury heard the case at the time and made a decision that he was guilty. And I would note that that case did involve some actual violence, the use of a handgun, and Mr. Panza was convicted as a participant in that.

"It is, therefore, somewhat shocking to find him, with that record, back in another situation where there is a threat of violence, using a handgun in a robbery. This is the type of recidivist behavior that the three strikes law was designed to address. He clearly is not outside of the spirit of the three strikes law, notwithstanding all the positive things that he's done since then and the support that he has. I do not think that, on balance, this is a case where the court should favorably exercise discretion, and therefore, I decline to do so. The strike will remain in effect."

We note that in the plea agreement Panza waived the right to appeal issues related to prior strike convictions. Because we affirm on the merits, we need not resolve the question of whether Panza, by waiving the right to appeal, waived the right to challenge the trial court's declination, after he entered the admission, to dismiss the prior strike conviction allegation.

Whether to dismiss a prior strike conviction allegation is in the trial court's discretion. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) A trial court's decision not to dismiss a strike will be upheld unless the decision is irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) In ruling whether to dismiss a prior strike conviction allegation the court must consider whether, considering the nature and circumstances of his present criminal activity and prior serious and/or violent felony convictions, the defendant may be deemed outside the spirit of the three strikes law and should be treated as though he had not committed one or more strike priors. (People v. Williams (1998) 17 Cal.4th 148, 162-163.)

Panza argues the trial court erred by denying his request to dismiss the prior strike conviction allegation; it did not exercise informed discretion because it was mistaken about the prior strike allegation at issue. He contends the trial court considered dismissing the prior attempted robbery conviction allegation, which the prosecution had already dismissed, and did not consider dismissing the assault with a deadly weapon conviction, which was the only pending prior strike conviction allegation. While explaining its ruling, the court discussed Panza's claim of limited liability in the incident underlying the prior strikes. The court said, "the strike conduct--that is, the robbery and using the gun--he was convicted after jury trial in that case." The jury in the prior case convicted Panza of both attempted robbery and assault with a deadly weapon. While discussing the prior strike conviction it was considering dismissing, the court did not say it was referring to the attempted robbery conviction or the assault with a deadly weapon conviction, apparently because the same facts underlay both crimes. Although Panza's trial counsel mistakenly referred to the prior strike at issue as the robbery conviction, we are not persuaded the court made this mistake. Rather, the court reviewed:

"documentation of tattoo removal, some documentation from his . . . church, the occupational training certificates in plumbing, a number of character references. It does include a two-page letter from his wife, dated December 15th, 2004. And it also includes a two-page, handwritten letter from Mr. Panza, his acceptance letter at Delancey Street and a copy of the '95 case probation report."

The court also reviewed a statement in mitigation that included:

"another copy of that probation report from the 1995 case and includes, as Exhibit 1, certain select pages of testimony relevant to one of the charges in this case."

The court heard the prosecution tell of Panza's history of imprisonment since the 1995 robbery, repeated parole violations, and the present crimes. The prosecution also argued that he showed a well-developed pattern of failure to follow the law, endangering the public. The trial court exercised its discretion not to dismiss the prior assault with a deadly weapon strike conviction allegation. Although reasonable minds might differ and we may have exercised discretion differently, a difference of opinion is not sufficient to reverse the trial court's exercise of its discretion. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.