P. v. Bosworth

Filed 3/26/09 P. v. Bosworth CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Defendant pleaded guilty to second degree robbery (Pen. Code,  211, 212.5, subd. (c))[1] and admitted having suffered a prior strike ( 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction ( 667, subd. (a)) for robbery. The trial court denied defendants request to strike the strike and sentenced him to nine years in prison. On appeal, defendant contends that the court abused its discretion and denied him due process when it refused to strike the strike. For reasons that we will explain, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Current Offense in 2007

As defendant was convicted by plea, the following summary of his current offense is taken from the probation report.

In Santa Clara County in July 2007, a 13-year-old sat down on a park bench to take a phone call from a friend. Defendant and a codefendant ran towards the minor. The minor, afraid for his safety, ended the call and attempted to flee. The minor was 5 feet, 8 inches tall and weighed 127 pounds. Defendant was 28 years old, slightly taller than 6 feet, and weighed at least 200 pounds. His codefendant was 31 years old, over 6 feet tall, and also weighed at least 200 pounds. Defendant and his codefendant caught up with the minor, threw him to the ground, and ordered him to shut up. The minor complied out of fear. The minors iPod, cellular telephone, and $100 in cash that he had received for his birthday that same day were forcefully taken from him. Defendant and his codefendant threatened to hurt the minor if he did not comply. After taking the items, defendant and his codefendant fled the scene.

The minor reported that there were two children, approximately eight years old and 10 years old, with defendant and his codefendant. The minor believed they were the children of defendant and the codefendant. A witness provided information regarding the identity of the codefendant and led the police to the codefendants residence. The codefendant was arrested, admitted culpability, and provided information regarding defendants whereabouts. Defendant was subsequently arrested.

The Prior Strike from 2003

Defendants prior strike arose out of a robbery in El Dorado County.[2] Defendant walked out of a store without paying for a 12-pack of beer. The store owner confronted defendant in the parking lot. Defendant stated, Oh, you want to fight and squared off ready to fight. When the store owner reached for the box of beer under defendants arm, defendant swung his fist at him. The store owner quickly moved, and defendants fist glanced off the store owners head. The store owner did not sustain any injuries. The police detained defendant a short time later, whereupon defendant attempted to escape and violently resisted until he was taken to the ground and handcuffed. Defendant had a strong odor of alcohol and had been carrying 11 unopened cans of beer.

On October 6, 2003, defendant was charged by complaint with second degree robbery ( 211), battery ( 242), and two counts of resisting, obstructing, or delaying a peace officer ( 148, subd. (a)(1)). He pleaded no contest to second degree robbery ten days later. The remaining counts were dismissed, imposition of sentence was suspended, and defendant was placed on probation. He was ordered to serve 15 days in jail, among other conditions of probation. (People v. Bosworth (Super. Ct. El Dorado County, 2003, No. S03CRF0284.)

The Complaint and Plea

On July 25, 2007, defendant was charged by complaint with second degree robbery ( 211, 212.5, subd. (c)) for the incident involving the 13-year-old. The complaint further alleged that defendant had suffered a prior strike ( 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction ( 667, subd. (a)) for robbery, and that he had served a prior prison term for a violent felony conviction ( 667.5, subd. (a)).

On September 7, 2007, defendant entered a negotiated guilty plea to second degree robbery and admitted having suffered a prior strike and a prior serious felony conviction. Conditions of the plea included a nine year top/bottom, unless the judge grant[ed] a Romero motion.[3] The allegation that defendant had served a prior prison term was

stricken on motion of the People.

At a subsequent Marsden hearing,[4] the trial court clarified that defendant would receive no more than nine years, and he may receive less if the strike was stricken upon a proper showing. The court ultimately denied defendants Marsden motion.

The Probation Officers Recommendation

In September or October 2007, defendant was interviewed by the probation department. Defendant asserted that he had  no physical contact with the minor and only approached him because he believed the minor was associated with an incident during which defendant had been robbed of his wallet. Defendant maintained that he had been harassed by the minor and his friends many times, and he was fed up. He stated that he accosted the minor in retaliation and at a time when the minor was not in the presence of his fellow gang members. He also stated that he was under the influence of alcohol at the time of the offense.

Defendant disclosed a history of alcohol and drug use. He stated that he began using alcohol and marijuana when he was 13 or 14 years old, and he started using methamphetamine and crack cocaine at age 17. He was hooked on all four substances, but had been clean and sober for approximately one year. He relapsed in May 2007, and began using alcohol and drugs excessively until his arrest for the instant offense. He stated that he is an alcoholic and a drug addict who desperately needs the opportunity to participate in a treatment program upon his release from custody.

The probation officer recommended that defendant be sentenced to nine years in prison. In making this recommendation, the probation officer acknowledged that defendant took responsibility for his actions in the current offense as the well as the prior strike offense, and he was candid in his interview with the probation officer. However, the probation officer also observed that, in addition to the prior felony conviction for robbery in 2003 (the strike offense), defendants criminal history included eight misdemeanor convictions, which, according to documents attached to the probation report, occurred between 1999 and 2007. In addition, the current offense involved defendant and his codefendant prey[ing] on a victim who was much younger and smaller, with the intention to intimidate him, steal from him, and threaten him. The probation officer concluded that there were no unusual circumstances or factors that would warrant any consideration of anything less than the Courts negotiated plea of denial of [p]robation, with a nine year prison commitment . . . .

The Request to Strike the Prior Strike

In March 2008, in anticipation that defendant would file a motion to strike his prior strike pursuant to section 1385, the People filed written opposition to the as yet unfiled motion. In support of their contention that defendants prior strike for robbery in 2003 should not be stricken, the People pointed to the nature of defendants current offense and the number of his prior convictions beginning in 1999, including violating a local ordinance, driving under the influence, cruelty to animals, and resisting or obstructing a peace officer on more than one occasion. Further, although defendant was placed on probation and ordered to serve 15 days in jail for the 2003 robbery conviction, his probation was revoked in 2006 and he was ordered to serve 365 days in jail. The People argued that there was nothing about defendant or his history that places him outside the spirit of the Three Strikes regime . . . .

In April 2008, defendant filed a request that the trial court strike his prior strike pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. Defendant argued that his prior strike conviction occurred five years before, when he was 24 years old, and amounted to little more than a petty theft of beer and cigarettes. (Italics omitted.) Although it was alleged that he swung at and hit the store clerk after taking the beer, defendant indicated that he would testify at the Romero hearing that he did not swing at or hit the clerk. Further, he received only 15 days in jail for the prior robbery, and even after he violated probation, he was given only one year in jail.

Regarding his background, defendant asserted that his parents were alcoholics, his mother drank bourbon during the two months prior to his birth, and he suffers from alcoholism and drug abuse. He stated that he had completed various programs while in custody, had sought treatment outside of custody, including mental health counseling, and he was now on medication for his mental health condition. He maintained that he was not a violent or dangerous person whose criminal behavior had escalated, as contended by the People. He asserted that he was honest with the police when he was apprehended, accepted responsibility for his actions at an early stage of the proceedings, and demonstrated open, friendly, engaged, considerate and sociable behavior and demeanor during court proceedings. [I]f given the proper treatment for his mental health and addiction problems, defendant believed that he had prospects to live a positive life. Defendant argued that he was eligible for probation or could be sentenced to seven years in prison, instead of nine years, if the strike was stricken, and he stated that he would enter a six month Salvation Army program.

With his request to strike the strike, defendant provided copies of numerous documents, including court records and police reports regarding the 2003 robbery, a 2006 probation violation incident report, and his high school transcript. He also provided a letter from the manager of a health club where he had worked on and off between 2001 and 2005. In the letter, the manager states that defendant was a dependable and exceptional worker with good communication skills. Copies of emails from defendants aunt and sister to his trial counsel were also provided to the court. In one email, defendants aunt states that defendants parents were both alcoholics and that defendant practically raised himself from the time he was 12 years old. She explains that defendants mother has been in an AA program for one and one-half years, whereas defendants father has had 13 DUIs and has been in and out of jail. In another email, defendants sister states that defendant suffers from alcoholism, which we have on both sides of our family and she believes defendant suffers from depression.

Defendant also provided to the trial court documentation concerning alcohol, drug, or other programs in which he participated. For example, in 2003, defendant completed a Health Education Addiction Recovery Through Self-Responsibility program and a workbook entitled Cage Your Rage (a guide to anger control). He also participated in a residential treatment program from October 23, 2006, to November 7, 2006.

The Hearing on the Request to Strike the Prior Strike and Sentencing

On June 2, 2008, the trial court held a hearing regarding defendants request to strike the strike. The court informed the parties that it had read and considered defendants brief and the documents attached to it, the Peoples opposition, and the probation report. It also read several documents provided by defendant during the hearing, as well as a letter by defendant in which he expressed sorrow for the actions that he had taken on the date of the current offense. Defense counsel argued that the court should strike the strike and sentence defendant to seven years.

The trial court denied the motion. The court explained: This is a difficult case. Its difficult because [defendant] has indicated most recently motivation to address some of the underlying problems that have been a problem not only for him but for his family as well, and hes been very apologetic towards the victim, and I think at this point sincerely is remorseful about all the circumstances.

And the options really before the court are a seven-year sentence and a nine-year sentence, because both the prior strike conviction and the current offense are violent felonies. Thats robberies. The good time/work time is only 15 percent, either with or without the strike stricken. So the actual length of the sentence would not be different. Its simply a question of selecting the appropriate term.

And I told your attorney that if I had unfettered discretion, I would choose seven rather than nine, but unfortunately I dont have unfettered discretion.

The Three-Strikes law indicates that unless its clear that the case falls outside the spirit of [the] Three Strikes [law] I have to impose the three-strike penalties. And the nine-year penalty is the absolute minimum possible sentence available under the Three-Strikes law in your particular case. The maximum penalty is more.

I resolved this case with the understanding that you would not receive more than nine years. The district attorney concurred in that.

However, when we look at the case in the context of the Three-Strikes law and the context of the [People v.] Williams [(1998) 17 Cal.4th 148 (Williams)] case, which is the lead case by the Supreme Court in interpreting it, the facts are this: in 2003, although it was not a particularly aggravated robbery, you were convicted of robbery . . . . You have eight miscellaneous misdemeanors that show general disrespect for the law, nothing terribly aggravated in those eight misdemeanors, but theyre persistent. They dont show a turn for the better.

In the current case, which is, I believe, a 2007 case, we have another robbery. Exactly the same as the first robbery. Same crime, same violation. Another serious felony. And in this particular case, even though youre . . . well above six feet tall -- six, two or three -- and well above 200 pounds, the victim in the case was a 13-year-old whos much smaller. And he was threatened and robbed.

In that context, when theres only a four-year delay between robberies, and the law provides for these penalties, its very, very difficult for me, even though I were to give you every benefit of the doubt with regard to your current prospects, if I were even just for the sake of argument to assume that your current prospects are excellent because finally your attitude has been able to shape into that of being convinced youve got . . . to make an adjustment, even if I assume you have the best possible attitude now, the primary factors Im supposed to look at are the prior offense, the type of offense, the length of time thats passed since its happened, and I look at the current offense. And those two factors, the present offense and the past strike offense, are the same and theyre both violent felonies. Your attorneys argued to me very effectively and presented documentation that as robberies go the prior robbery was relatively non-violent. You did not assault anyone with a weapon. You did not physically inflict bodily injury. It was just a robbery. And because of that maybe I should take a more cautious look at the current case.

But the current case is troubling because the victims 13, its only been four years. Only four years have gone by since you were convicted of the prior robbery. I think only a year out of custody was the defendant when this happened.

The probation officer clarified that defendant had been out of custody [l]ess than one year. The trial court then stated: And yet it repeats itself.

So, when I square those facts against the Williams case, I just dont have any . . . choice. I just cant find as a matter of law that it falls outside the spirit of the Three-Strikes law and, frankly, I think that if I were to exercise discretion as liberally as your attorney hopes I could, I think I would be reversed. I think it would be an abuse of discretion to do that in this particular type of case where someone has a four-year-old robbery and commits another robbery against a 13-year-old thats so much bigger physically than the other person.

So, for those reasons -- and despite these significant things that youve done more recently, which I applaud you for and I congratulate you for doing those, and I congratulate you for your changed attitude, its not enough in light of the other strong factors that Ive just mentioned.

So, unfortunately, I have to deny the Romero motion. I wish I could exercise unfettered discretion, but I . . . cant. The law doesnt allow me to do that.

The trial court proceeded to deny defendant probation and sentence him to nine years in prison for second degree robbery. The prison term was based on the lower term of two years, doubled under the Three Strikes law, plus five years for the prior serious felony conviction pursuant to section 667, subdivision (a). Defendant was awarded 362 days of custody credit and ordered to pay restitution in the amount of $100, plus various fines and a fee. The court also made a general order of restitution.

Defendant filed a timely notice of appeal.

III. DISCUSSION

Defendant contends that the trial court abused its discretion in denying his request to strike his strike and that [t]his sentencing error constituted a violation of [his] federal constitutional right to due process. He argues that in view of the nature and circumstances of the most recent robbery and the prior strike, as well as his background, character, and prospects, the court should have determined that he is outside the spirit of the Three Strikes law. He also asserts that the court was misguided in its application of the appropriate legal standard to guide the exercise of discretion regarding whether to strike his prior strike.

The People contend that the trial court did not abuse its discretion in refusing to strike defendants prior strike. The People argue that the court was aware of its discretion under section 1385, its authority to strike, and the pertinent California Supreme Court authority. According to the People, the court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the Three Strikes law.

Section 1385, subdivision (a), provides that the trial court may, on its own motion and in furtherance of justice, order an action to be dismissed. This subdivision allows a trial court to strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, in furtherance of justice . . . . (Williams[, supra, at p. 158].) (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).)

Regarding the legal principles and policies that should guide the trial courts decision as to whether to strike a prior conviction allegation, the California Supreme Court has stated: [T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts discretion in sentencing repeat offenders. [Citation.] To achieve this end, the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court conclud[es] than an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.  [Citation.] (Carmony, supra, 33 Cal.4th at p. 377.)

In order to determine whether an exception to the Three Strikes law should be made, the court in question must consider whether, in light of the nature and circumstances of [the defendants] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendants] background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though [the defendant] had not previously been convicted of one or more serious and/or violent felonies. (Williams, supra, 17 Cal.4th at p. 161.) (Carmony, supra, 33 Cal.4th at p. 377.)

A trial courts decision to dismiss or strike a prior conviction allegation under section 1385, or its refusal to strike a prior, is reviewed under the abuse of discretion standard. (Carmony, supra, 33 Cal.4th at pp. 374-375.) 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 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. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [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. (Carmony, supra, 33 Cal.4th at pp. 376-377.)

For example, an abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard [citations]. (People v. Knoller (2007) 41 Cal.4th 139, 156.) But [i]t is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. [Citation.] Where the record is silent [citation], or [w]here 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 courts ruling, even if we might have ruled differently in the first instance [citation]. Because the circumstances must be extraordinary by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary casewhere the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differthe failure to strike would constitute an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)

In this case, defendant contends that the trial court should have determined him to be outside the spirit of the Three Strikes law, and it abused its discretion in refusing to strike his prior strike. In making this argument, defendant asserts, among other things, that his criminal record is neither violent nor extensive, his crimes reflect his problems with alcohol and drugs, and he has expressed remorse for his conduct.

These assertions amount to a reargument of the request that defendant made to the trial court to strike the prior strike. Although the trial court could have accepted defendants arguments and stricken the prior, its refusal to do so does not mean that the trial court acted outside the bounds of reason under the applicable law and the relevant facts [citations]. (Williams, supra, 17 Cal.4th at p. 162.) Moreover, in this case, we cannot conclude that the trial courts decision was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.) It is apparent that the trial court considered the nature and circumstances of the prior strike, the current offense, and defendants background, character, and prospects. (Id. at p. 377; Williams, supra, 17 Cal.4th at p. 161.) The court observed that only four years had passed between the prior strike and the current offense; both offenses involved the same crime of second degree robbery; the current offense occurred after defendant had been out of custody for less than one year; the victim of the current offense was 13 years old, much smaller physically, and threatened and robbed; and defendants other eight convictions for misdemeanors showed a general disrespect for the law and did not show a turn for the better. The court determined that in this context, although defendant had shown remorse and had recently indicated a motivation to address some of his underlying problems, and even assuming defendants current prospects were excellent and his attitude had changed, it could not find that defendant fell outside the spirit of the Three Strikes law. Where, as here, 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 courts ruling, even if we might have ruled differently in the first instance [citation]. (Carmony, supra, 33 Cal.4th at p. 378.) We are neither authorized nor warranted in substituting our judgment for that of the trial judge. (Id. at p. 377.)

Defendant argues that the trial court was misguided in its application of the appropriate legal standard to guide the exercise of discretion. He asserts that the trial court committed an abuse of discretion by placing primary importance on, or giving extra or undue weight to, the prior and current offenses. He maintains that under Williams, the trial court was required to consider the other co-equal preponderant factors, including his background, character, and prospects, in determining whether he was outside the spirit of the Three Strikes law. In making this argument, defendant emphasizes the following statement by the trial court: even if I assume you have the best possible attitude now, the primary factors Im supposed to look at are the prior offense, the type of offense, the length of time thats passed since its happened, and I look at the current offense.

We disagree with defendants contention that the record reflects a misunderstanding or misapplication of the law by the trial court. Initially, we observe that defendants written request to the trial court to strike the strikes included a citation to Williams, and the factors to be considered in determining whether to strike the strike. Nearly one-half of defendants 15 page written request was devoted to a discussion of his background, character, and/or prospects, and he provided a substantial number of documents in support of that discussion. At the hearing on the motion, the trial court indicated that it had read and considered defendants voluminous brief, almost an inch thick, containing virtually all the documentation available, including medical information, all court referrals and medical evaluations, also all the reports concerning a prior strike and arguments. The court subsequently referred to the Williams case as the lead case by the Supreme Court in interpreting the Three-Strikes law. It then proceeded to discuss defendants prior strike, the current offense, and defendants background, character, and/or prospects. Having taken into consideration all of these factors, the court determined that it could not find defendant to be outside the Three Strikes law and proceeded to sentence him accordingly.

In view of the record, we believe that the trial court was well aware of the pertinent factors set forth in Williams, and properly applied the relevant legal principles in this case. We read the trial courts reference to the primary factors as the trial courts enunciation at that point in the hearing, of some, but not all, of the factors set forth in Williams. Indeed, the trial court did not state that the prior offense and current offense are the only factors to be considered. Rather, in viewing the entirety of the trial courts statements, it is clear that the court considered all the pertinent factors, including defendants background, character, and prospects, in making its decision, and it determined that the nature and circumstances of the prior and current offenses weighed in favor of sentencing defendant in accordance with the Three Strikes law. As the trial court applied the correct legal standard and balanced the relevant factors, its refusal to exercise its discretion to strike the prior strike will not be set aside.

Because we have concluded that the trial court did not abuse its discretion, defendant was not denied due process.

IV. DISPOSITION

The judgment is affirmed.

__________________________________________________

Bamattre-Manoukian, J.

WE CONCUR:

_________________________

RUSHING, P.J.

_________________________

ELIA, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The summary of defendants prior offense is taken from police reports and court records that were attached to defendants written request to the trial court to strike the strike.

[3]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[4]People v. Marsden (1970) 2 Cal.3d 118.