P. v. Casaburi
Filed 12/10/12 P.
v. Casaburi CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GLEN CASABURI,
Defendant and Appellant.
B236187
(Los Angeles County
Super. Ct. No.
PA069960)
APPEAL
from a judgment of the Superior Court of
County.
Lesley C. Green, Judge. Affirmed as corrected.
Murray
A. Rosenberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and
Toni R. Johns Estaville, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________________________________
A jury convicted Glen Casaburi of
receiving stolen property. He
contends that (1) the trial court should have granted his motion to strike a
1987 burglary conviction and (2) the abstract of judgment is incorrect. The denial of defendant’s motion to strike
was not an abuse of discretion. However,
the abstract of judgment must be corrected to reflect the court’s pronouncement
staying the sentence on defendant’s second conviction. As corrected, the judgment is affirmed.
FACTS
The Prosecution’s Case
Robert
Hovakemian manages property on Division Street
in Los Angeles (the Property) on behalf of its owner, Tommy Thompson. Hovakemian is overseeing a remodel of the
Property. An iron fence surrounds the
Property and a locked gate crosses the driveway. The gate is normally closed.
David
Lomen lived at the Property, performing electrical, painting and drywall
work. Thompson permitted Lomen to leave
his vehicle, a beige 1985 Toyota pickup truck, in the driveway.
Hovakemian had the keys to Lomen’s truck and permission to move the
vehicle around as needed during the remodeling process. Neither Lomen nor Hovakemian believe that
defendant Casaburi was authorized to stay at the Property or perform remodeling
work on it.
Lomen identified
Casaburi as a friend of Thompson’s who spent time at the Property. The men used methamphetamine together. Lomen never gave defendant permission to
drive his truck, or to take the truck in for repairs. The truck was not supposed to be driven
because it was uninsured and unregistered.
In the spring of
2010, Lomen and Thompson were arrested on drug charges. When Lomen was released from jail in June
2010, he was upset to see Casaburi driving the truck. Casaburi justified his possession of Lomen’s
car keys by saying that he was preventing Thompson’s girlfriend Teresa from
taking the truck. Lomen took the car
keys away from defendant and gave them to Hovakemian for safekeeping. Lomen told defendant that he did not want him
driving the truck anymore.
Lomen
entered a residential drug rehabilitation center from July 2010 until February
2011. At the time, he was facing six
months in jail for drug possession. He
agreed to undergo drug rehabilitation as an alternative to imprisonment. At the end of 2010, Hovakemian noted that
Lomen’s truck was missing from the Property; he relayed news of the theft to
Lomen by telephone. Lomen’s truck was
reported stolen on January 27, 2011.
On
February 5,
2011, two police officers on patrol saw a
tan pickup truck make an illegal left turn.
They checked the license plate and saw that it was reported stolen. The police arrested the male driver and a
female passenger. Casaburi was
identified in court as the driver of the stolen vehicle. The police recovered the car keys that
defendant was using, which were manufactured by General Motors. The police were able to start the Toyota with the GM
keys. The ignition had been
punched. On the driver’s seat was a
plastic bag containing a usable amount of crystal methamphetamine.
When
the truck was stolen, it contained all of Lomen’s clothes and materials for
doing work as an electrician—breakers, switches, plugs, and light
fixtures. Lomen placed these items in
the truck, and locked it, just before entering the drug treatment program. Lomen’s personal property was gone when he
recovered the truck. Moreover, the truck
was damaged: a side panel and all the
rubber along the side of a door were gone, the windshield wiper control arm was
broken, and the seats were torn.
The Defense Case
Rex
Shields is a concrete contractor who also repairs automobiles. He knows Lomen and Casaburi. In 2010, Casaburi came by Shields’s shop in
Lomen’s truck to ask why the vehicle was overheating. Shields does not know why Casaburi was
driving Lomen’s truck, but knew that Lomen was in rehab or custody at the
time. Later, Lomen mentioned to Shields
that the truck had been stolen, along with his tools and other things.
Karen
Emerson is acquainted with Lomen and is a good friend of Casaburi’s, who has
lived from time to time at her home. She
was unaware that Casaburi uses methamphetamine and has a
together and were buddies. She did not
know why Casaburi was arrested.
Diane
Bitner is related to Casaburi and knows Dave Lomen. Bitner has a good opinion of Casaburi’s
honesty, and a poor opinion of Lomen, reciting instances in which Lomen has
lied. She often wondered about Lomen’s
behavior, because he acted peculiarly and twitches; she thought he might be
using drugs.
Defendant
testified on his own behalf. He admitted
having served a prison sentence for possessing methamphetamine for sale 20
years ago, and conceded that he has used the drug since completing his
sentence. He described having a “really
tight†relationship with Lomen, whom he has known since high school. Defendant, Thompson and Lomen hung out
together and used drugs. Defendant
opined that Lomen tells lies “on stuff that there was no reason to lie about.â€
Defendant,
Thompson and Lomen lived at the Property while fixing it up for resale. In April 2010, the marshals arrested Thompson
and Lomen. Once his friends were
arrested, defendant felt that both the Property and Lomen’s truck were
“entrusted to me.†While Lomen was in
prison, defendant drove the truck to Rex Shields’s shop to find out why it was
running so poorly. After Lomen was
released from prison—but before he started the rehabilitation program—he
returned to the Property and asked defendant to return his car keys. The keys that defendant gave Lomen were the
Toyota keys that came with the vehicle.
Defendant
denied that he entered the Property to steal Lomen’s truck. Defendant became aware that the truck was
stolen when Lomen telephoned in January 2011, and asked if defendant had seen
his truck. Defendant told Lomen he had
not seen it. In February 2011, defendant
was hanging out with friends when Thompson’s former girlfriend Teresa drove up
in Lomen’s truck. Defendant noted that
in April 2010, while Lomen was incarcerated, defendant cut a set of GM keys on
a key machine to fit the ignition to Lomen’s Toyota to have “a spare set of
keys for his truck.â€
After
obtaining the GM keys to Lomen’s truck from Teresa, defendant drank with his
friends for a while longer, then got into the truck to take it to Rex Shields’s
shop. He was planning to return the
vehicle to Lomen, but was unable to reach him.
He did not call the police to tell them where to find the truck, which
he knew was stolen, because “It’s just not what we do.†Defendant was not expecting trouble when he
was pulled over by the police because he thought he had permission to drive the
truck. He described himself as
“heartbroken, confused†when the police told him he did not have permission to
use the truck. Defendant denied that the
methamphetamine found in the truck belonged to him.
PROCEDURAL HISTORY
In
an amended information, Casaburi was charged with: unlawfully driving or taking a vehicle (count
1); possessing methamphetamine (count 2); and receiving stolen property (count
3). The information alleged that
Casaburi suffered two prior “strikes,†both felony convictions for first degree
residential burglary in July 1987. In
addition to the burglaries, the information alleged that Casaburi had four
drug-related convictions in 1991, 1996 and 2005, and a weapons conviction in
1989, all resulting in prison terms.
Casaburi pleaded
not guilty. Before trial, he admitted to
one “strike,†the 1987 burglary conviction.
During trial, he admitted six prison priors. A jury convicted Casaburi of counts 1 and 3,
and acquitted him of count 2. Defendant
requested a new trial and asked the court to strike the prior conviction
because the burglary occurred 24 years earlier and he has never been convicted
of a violent crime. He asked to be sent
to a residential drug treatment program
instead of prison.
The court denied
Casaburi’s motion for a new trial and his request to strike the prior. After reviewing the probation and sentencing
memoranda, and considering the victim’s request for leniency, the court denied
probation. It sentenced Casaburi to the
high term of three years on count 1, doubled by the strike to six years, plus
one year for the prior prison sentence, for a total of seven years. It struck five prior prison term
enhancements. In selecting the high
term, the court cited Casaburi’s “extensive criminal history and . . . his
efforts to manipulate the system even now.
I would just consider that a lack of remorse.†The court also imposed the high term on count
3, which it stayed under Penal Code section 654.
1. The
Court’s Refusal to Strike Casaburi’s Prior Conviction
Casaburi argues that the trial court
should have granted his motion to strike a prior felony conviction so that he
could be sentenced as a “non-strike†offender.
The court had power “to strike factual allegations relevant to sentencing,
such as the allegation that a defendant has prior felony convictions.†(People
v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504; Pen. Code,
§ 1385, subd. (a) [allowing dismissals “in furtherance of justiceâ€].) When asked to strike a prior conviction, 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, 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.†(
148, 161.)
We
review the trial court’s ruling under the deferential abuse of discretion
standard, to see if it “‘falls outside the bounds of reason.’†(People
v. Williams, supra, 17 Cal.4th at
p. 162.) A court does not abuse its
discretion by refusing to strike prior felony convictions “unless its decision
is so irrational or arbitrary that no reasonable person could agree with
it.†(People v. Carmony (2004) 33 Cal.4th 367, 377.)
It is only under
“extraordinary†circumstances that a career criminal may be deemed to fall
outside the spirit of the three strikes law, “‘once he commits a strike as part
of a long and continuous criminal record, the continuation of which the law was
meant to attack.’†(People v. Carmony, supra,
33 Cal.4th at p. 378.) A defendant who
fails to address his substance abuse, has a spotty work history and poor
prospects for the future falls within the spirit of the three strikes law. (Id. at
pp. 378-379.) Even a lengthy span of
time between the prior serious felony conviction and the present felony is not
enough to ignore the sentencing norm of the three strikes law, if the record
shows that the defendant continued to use drugs and “did not refrain from
criminal activity during that span of time, [i.e.] he did not add maturity to
age†by staying out of prison and obeying the terms of his parole. (People
v. Williams, supra,
The trial court
acknowledged that Casaburi’s burglary conviction occurred 24 years ago. Since the burglary, Casaburi did not refrain
from criminal activity, but “has six felonies, numerous misdemeanors, and three
parole violations in between. [¶] Further, this charge, theft of a vehicle, is
somewhat similar in the nature of the strike of the residential burglary in
that both show disregard for the law and the property rights of others. [¶]
Moreover, it’s my finding that the defendant shows no remorse. Rather, as his history has shown, [he has] a
disinclination to conform his conduct to society’s norms and requirements. [¶]
Further, numerous charges . . . have involved illegal substances. Pursuant to his testimony, he has shown no
desire to change that, to overcome that habit, to become employed, or to become
a contributing and law abiding member of society. . . . Mr. Casaburi is in his
mid 40’s. He seems satisfied with his
lifestyle, completely lacking in remorse, or any intent or motive to change.â€
The
court voiced awareness of its discretion to strike Casaburi’s prior conviction,
and there is a “legislative presumption that a court acts properly whenever it
sentences a defendant in accordance with the three strikes law.†(People
v. Carmony, supra,
deny Casaburi’s motion was arbitrary or irrational. Although defendant’s prior strike is 24 years
old, he continues to commit crimes, resulting in multiple convictions and
prison sentences since the 1987 burglary.
His six convictions indicate that he falls within the spirit of the
three strikes law as a career criminal.
(See People v. Strong (2001)
87 Cal.App.4th 328, 340 [a “‘revolving-door career criminal’†is the kind of
person for whom the three strikes law was devised].) The theft of Lomen’s vehicle mirrors the 1987
theft crime.
Defendant has a
longstanding addiction to methamphetamine he has not tried to overcome, even
after his friends Thompson and Lomen were arrested on drug charges. The trial court was able to observe firsthand
Casaburi’s attitude and credibility during trial. Based on these observations, the court
concluded that defendant is an unrepentant criminal with no interest in
becoming a contributing member of society.
Defendant
admits that he has had six additional felonies since 1989 plus numerous
misdemeanor convictions. Nevertheless,
he argues that his conduct “cannot be considered the actions of a serious
criminal.†He maintains that that he is
“a non-violent, damaged, middle aged individual who is more of a threat to
himself then [sic] he is to
society.†We disagree with defendant’s
self-appraisal.
The record shows
that defendant is a clever and practiced criminal. In June 2010, Lomen caught defendant driving
his truck. Upset, he instructed
defendant not to drive the vehicle again, removed the keys from defendant, and
gave them to Hovakemian for safekeeping.
Defendant testified that he handed Lomen the Toyota keys that came with
the vehicle when Lomen demanded them.
When Lomen left for his drug treatment program in July 2010, the truck
was locked and safely stored behind a fence and a gate.
Undeterred by
Lomen’s words or actions in placing the car and its keys in a safe place,
defendant availed himself of a duplicate key, which he made using GM keys and a
key machine. Contrary to defendant’s
testimony that Lomen’s truck was “entrusted to me,†the evidence indicates that
defendant violated Lomen’s express admonition to stay away from the truck and
used a fake set of keys to drive off with the vehicle. All of Lomen’s personal effects stored in the
truck were never seen again. Defendant’s
willingness to harm those he considers friends shows that he is, in fact, a threat
to society. The trial court did not
abuse its discretion by denying defendant’s motion to strike his prior
conviction. The court’s ruling was based
on the evidence it heard, not on any antipathy to defendant.
2. Amendment of the Abstract of Judgment
As
to count 1 (driving or taking a motor vehicle), the court indicated that it
intended “to impose the high term of three years, doubled by the strike to six
years, plus one for one of the priors.
That’s a total of seven years.
[¶] And I intend to strike the
five other prior enhancements pursuant to 1385.†As to count 3 (receiving stolen property),
the court stated that it intended “to impose the high term. I believe that’s one year, doubled to two
years, plus one prior enhancement for a total of three years. Striking the other priors per 1385. [¶]
That would be stayed pursuant to Penal Code section 654.†The court gave reasons for selecting the high
term.
Casaburi
maintains that the record is unclear:
although the trial court “believed†that the high term was one year on
count 3, the abstract of judgment shows that defendant received the high term
of three years for count 3. As defendant
acknowledges in his brief, the high term for receiving stolen property is three
years. (Pen. Code, §§ 496, subd.
(a), 1170, subd. (h)(1).) The court
misspoke when it listed the high term as one year: this is not a term authorized by law. Respondent notes that the abstract of
judgment correctly states the high term of three years on count 3, and the
court clearly intended to impose the high term.
An appellate
court may correct an abstract of judgment if it echoes the trial court’s
misstatement of the length of a prison term under a statute. In People
v. Cantrell (2009) 175 Cal.App.4th 1161, 1164-165, for example, the trial
court mistakenly identified the low term as one year, when it was actually 16
months, allowing the reviewing court to correct the abstract to reflect the
longer term authorized by law. In this
instance, there is no need to correct the abstract of judgment because it
already reflects the trial court’s intent to impose the high term authorized by
law, which is three years.
Respondent
concedes that the abstract must be corrected to show that the sentence on count
3 is stayed. (Pen. Code, § 654.) The court stated at sentencing, “I think we
all agree this is a 654 issue.†A
reviewing court may correct an abstract of judgment when it fails to accurately
reflect the trial court’s oral pronouncement that a sentence will be stayed
pursuant to Penal Code section 654. (
1222, fn. 14; People v. Cantrell,
We order that the abstract of
judgment be corrected to conform to the trial court’s oral pronouncement that the
sentence on count 3 (Pen. Code, § 496) is stayed pursuant to Penal Code
section 654. The judgment is affirmed as
so corrected.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
DOI TODD, J.
ASHMANN-GERST, J.
