P. v. Grobman

Filed 2/4/09 P. v. Grobman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Jon Trevor Grobman pleaded guilty to four counts of first degree burglary (Pen. Code, 459, 460, subd. (a)), two counts of receiving stolen property (Pen. Code,  496, subd. (a)), one count of vehicle theft with a prior conviction (Veh. Code, 10851, subd. (a); Pen. Code, 666.5), one count of receiving a stolen vehicle with a prior conviction (Pen. Code,[1] 496d, 666.5), and one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)). He also admitted that he had served two prior prison terms ( 667.5, subd. (b)), and that he had been convicted of two prior serious felonies ( 667, subd. (a)), and four prior violent or serious felonies that qualified as strikes under the Three Strikes law ( 667, subds. (b)-(i), 1170.12).

The trial court denied defendants request to dismiss two or more of the strike priors and sentenced defendant to an indeterminate prison term of 150 years to life consecutive to a determinate term of 40 years. On appeal, defendant claims that the trial court abused its discretion by failing to dismiss his prior strikes because it: (1) mischaracterized defendants prior strike convictions and current crimes as violent felonies; (2) improperly concluded that it had no discretion to dismiss defendants prior strike convictions; and (3) failed to consider defendants background in part outside the spirit of the Three Strikes law. We will affirm the conviction for the reasons stated below.

I. Facts and Procedural History

Defendant pleaded guilty to nine felony counts. Eight of these counts involved first degree residential burglary, theft, or stolen property, and the remaining count was for methamphetamine possession. Defendant was on parole at the time he committed these offenses. When he entered his plea, defendant also admitted four prior strike convictions, all of which were for first degree burglary, two prior serious felony convictions (for residential burglary), and two prior prison terms (for grand theft convictions). Defendants criminal history includes nine additional felonies and seven misdemeanors, as well as multiple parole violations.

A. Criminal History

Defendants criminal history, as detailed in the probation report prepared for sentencing, dates back to 1990, when defendant first moved to Santa Clara County at age 23. In 1991, defendant was sentenced to five years, four months in state prison after being convicted of three counts of first degree residential burglary, one count of grand theft of cargo, and one count of receiving stolen property. In 1994, defendant stole money from a hotel he worked at and committed another residential burglary; he was then sentenced in 1995 to a term of 10 years, four months in state prison. Defendants parole agent reported that he performed poorly on parole and sustained numerous prior violations for drug related offenses as well as absconding.

Defendants current felonies, which occurred in 2004 and 2005, included four residential burglaries, possession of a credit card stolen from an employers home, possession of a stolen check and ID card, stealing and concealing a van, and possession of methamphetamine. The probation report states that prior to the most recent offenses, defendant had suffered a total of nine felony convictions (including those described above) for crimes such as grand theft and vehicle theft, as well as seven misdemeanor convictions for crimes such as petty theft of personal property and retail merchandise. Defendant was 40 years old at the time of his sentencing on the 2004-2005 felonies.

B. Romero Motion and Hearing

Defendant filed a Romero[2] motion asking the trial court to dismiss two or more of his strike priors when sentencing him on nine felonies, asserting that his criminal behavior was due to a lifelong drug problem triggered by an incident of childhood sexual abuse. At the hearing on this motion, defendant stated, Today, I take responsibility for the crimes I committed and I sincerely apologize to all the victims . . . . [] Im asking you to consider a number of factors before sentencing me. One is Im not now[,] nor have I ever been, charged, arrested or accused of a violent crime. When Im not on drugs I have proven myself to be a hard-working, intelligent, caring human being. [] Unfortunately, Ive never taken advantage of the resources available to [combat] drug addiction. I continue to put myself through a vicious cycle of drugs[,] crimes and incarceration and never figured out a way to personally break that cycle.

Defendant had acknowledged in his motion that the Three Strikes law does not distinguish between serious and violent felonies, but argued that the court should dismiss his strike priors in furtherance of justice as described in section 1385, subdivision (a), because his past and present felonies involved no physical injuries and were therefore serious but not violent. At the hearing on the motion, the court disagreed, telling defendant that the Legislature has deemed first degree burglaries, residential burglaries to be violent felonies. . . . [Y]ou yourself have told me you have not committed anything violent, but you have. [] . . . [] The reason that the Legislature deemed those to be violent felonies is not only because of the potential harm and serious bodily injury that can occur to victims when theyre surprised someone is in their home, . . . but also because of the psychological effect that it has upon them. [] . . . [] So its not a situation where people were not injured.

C. Courts Ruling and Imposition of Sentence

The court found that it was not in the position to find that the defendant should not [sic] be treated outside the Three Strikes law and treated as though hes not committed any prior violent felonies and explained to defendant, [Y]ou just indicated to me that when youre not doing drugs youre a good person. Its only when you do drugs. [] How are we going to monitor that? So, you know, where does it stop? Where is society going to be protected from someone like you who decided at some point in the time youre going to restart drugs and start invading . . . homes again . . . . [] And the way the Three Strikes law is set up and the way the discretion is given to this court, no reasonable magistrate, in my position, could justify the striking of the strikes, could not. [] . . . I do not like doing what I have to do, but Im in the position of having to follow the law. And Im not in a situation where the law permits me to be outside of the law and all of the sudden impose my own standard and morality but rather . . . I have to follow the law. [] And theres nothing in your background, your prospects, that would allow this court to [in]fer that the community is going to be safe. [] And as much as Ive indicated to you, its a difficult sentence to impose, Im not in the position -- taking into consideration the totality of the circumstances -- to strike the strikes.

When sentencing defendant, the court declined to impose additional punishment for defendants prison priors under section 1385 due to the totality of the circumstances, [as] no weapons were used and no one was injured. Defendant was given an indeterminate prison term of 150 years to life consecutive to a determinate term of 40 years.

Defendant timely appealed the denial of his Romero motion.

II. Discussion

A. Standard of Review

The trial courts failure to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 should be reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) Because there is a strong presumption that the sentence required under the Three Strikes law is both rational and proper (id. at p. 378), a trial court abuses its discretion in failing to dismiss a prior strike conviction only if its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.) The defendant carries the burden to clearly show that the sentencing decision was irrational or arbitrary. (Id. at p. 376, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, internal quotations marks omitted).)

B. Characterization of First Degree Burglaries

Defendant argued to the trial court that his past and present burglaries were serious but not violent felonies because they did not result in any physical injuries; in response, the trial court stated that the Legislature deemed [first degree residential burglaries] to be violent felonies. Defendant claims on appeal that the court mischaracterized his crimes and that this misunderstanding of California law allowed it to disregard one of the strongest points in [defendants] favornamely, that none of his current or prior crimes was violent in nature, either in a colloquial sense, or by definition under California law.

[A]ny burglary of the first degree is a serious felony. ( 1192.7, subd. (c)(18).) Since the voters passed Proposition 21 in March 2000, first degree burglary has been considered a violent felony when it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. ( 667.5, subd. (c)(21).)

In at least two of defendants prior strike felonies, the residents were at home when defendant committed his first degree burglaries. This fact, if charged and proven in a post-March 2000 case, would qualify these crimes as violent felonies. However, because defendants prior convictions all occurred in the early 1990s, before the term violent felony had been defined in section 667.5 (but long after residential burglaries were deemed serious felonies), the presence of residents in the houses defendant burglarized was never specifically charged or proven.

Defendant is correct that none of his burglary convictions technically qualify as violent felonies under section 667.5, subdivision (c)(21), in the absence of allegation or proof that the residences were occupied during his crimes. While the court was therefore mistaken in labeling defendants past and present burglaries as violent felonies, this mischaracterization had no practical import. It was the nature of these decidedly non‑trivial crimes, not their technical definition as either serious or violent, that the court was considering when ruling on defendants Romero motion. There is no dispute that defendants prior crimes are at least serious felonies, and as defendant acknowledges, enhanced punishment under the Three Strikes law applies equally to [a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. ( 1170.12, subd. (b)(1).)

The court did recognize that defendant had not used weapons or physically hurt any of his victims; it was for this very reason that the court decided not to impose additional punishment for defendants prison priors. Regardless, the fact that none of defendants crimes resulted in physical injury to victims does not mean that his behavior was outside the spirit of the Three Strikes law. Since the express intent of the Three Strikes law is to ensure longer prison sentences for any defendant who has a qualifying strike and subsequently commits a felony, the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law. [Citation.] To conclude otherwise would rewrite the statute to only trigger a longer prison sentence for those defendants who commit a violent or threatening felony after having committed at least one strike. That is not the laws letter or spirit. (People v. Strong (2001) 87 Cal.App.4th 328, 344, fn. omitted (Strong).)

Given that the trial court properly understood the nature of defendants past and present offenses, we find that its mischaracterization of defendants burglaries as violent instead of serious felonies is of no legal significance.

C. Statements Regarding Discretion to Dismiss Strike Priors

Defendant contends that the trial court misunderstood the scope of its discretion to dismiss his strike priors when it erroneously concluded that its hands were effectively tied under the Three Strikes law. Defendant refers specifically to the trial courts statement that the way the Three Strikes law is set up and the way the discretion is given to this court, no reasonable magistrate, in my position, could justify the striking of the strikes, could not.

While it is true that an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss a strike prior (Carmony, supra, 33 Cal.4th at p. 378), we do not believe that this remark indicates that the trial court misunderstood the scope of its authority. Examining the remark in context, it reveals that the trial court believed there could be no real doubt that defendants behavior fell within the spirit of the Three Strikes law; as the court also explained to defendant, theres nothing in your background, your prospects, that would allow this court to [in]fer that the community is going to be safe if the trial court were to exercise its discretion to depart from the sentence otherwise mandated by the Three Strikes law. The courts language here even mirrors that of People v. Williams (1998) 17 Cal.4th 148 (Willams), which held that 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 schemes 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 when ruling on a motion to dismiss a prior serious or violent felony conviction subject to the Three Strikes law. (Id. at p. 161.)

Defendant also refers to the trial courts statement that I do not like doing what I have to do, but Im in the position of having to follow the law. And Im not in a situation where the law permits me to be outside of the law and all of the sudden impose my own standard and morality . . . . [] . . . [] And as much as Ive indicated to you, its a difficult sentence to impose, Im not in the position -- taking into consideration the totality of the circumstances -- to strike the strikes. However, with this statement the trial court was not suggesting that it lacked all authority to dismiss defendants prior strike convictions; rather, the court was simply acknowledging that it could not dismiss defendants strike priors based on its personal sympathy for defendant, as it is an abuse of discretion for a trial court to dismiss prior strike convictions guided solely by a personal antipathy for the effect that the [T]hree [S]trikes law would have on [a] defendant. (Romero, supra, 13 Cal.4th at p. 531, internal quotations marks omitted.)

Taken in their entirety, the trial courts remarks illustrate simply that it properly understood that a court's discretion to strike prior felony conviction allegations in furtherance of justice is limited (Romero, supra, 13 Cal.4th at p. 530), and that no weight whatsoever may be given to factors extrinsic to the [Three Strikes] scheme . . . . (Williams, supra, 17 Cal.4th at p. 161.) [A] primary purpose of the Three Strikes law was to restrict judicial discretion (People v. Garcia (1999) 20 Cal.4th 490, 501 (Garcia)), and the [T]hree [S]trikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. (Carmony, supra, 33 Cal.4th at p. 378.) We therefore reject defendants contention that the trial court misunderstood the scope of its discretion to dismiss his strike priors.

D. Outside the Spirit of Three Strikes in Part

Defendant asserts that the trial court abused its discretion by failing to meaningfully consider various sentencing options which could have properly been employed to impose a prison term less than a virtual LWOP sentence, primarily by refusing to deem defendants background outside the spirit of the Three Strikes law in part. Defendant relies on Garcia, which held that a trial court in a Three Strikes case may exercise its discretion . . . to dismiss a prior conviction allegation with respect to one count, but not with respect to another when circumstances indicate that defendant may be deemed outside the [Three Strikes] schemes spirit, at least in part. (Garcia, supra, 20 Cal.4th at pp. 503-504, internal quotation marks omitted.)

However, the fact that a trial court may exercise its discretion does not mean that failing to do so amounts to an abuse of discretion. In addition, the trial court is not required to explain its decision not to exercise its power to dismiss or strike . . . [because] the legislative presumption [is] that a court acts properly whenever it sentences a defendant in accordance with the [T]hree [S]trikes law. (Carmony, supra, 33 Cal.4th at p. 376, internal quotation marks omitted.) Even when there is a silent record . . . [] [i]t is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties. [] Absent evidence to the contrary, that presumption justifies a finding . . . that the trial court knew the scope of the Penal Code section 1385 discretion. (People v. Mack (1986) 178 Cal.App.3d 1026, 1032, internal citations omitted.) As such, failing to meaningfully consider various sentencing options is not grounds for relief.

Moreover, unlike the defendant in Garcia, whose prior convictions all arose from a single period of aberrant behavior for which he served a single prison term (Garcia, supra, 20 Cal.4th at p. 503), defendants criminal history spans over 15 years and was apparently interrupted only by his two prior prison terms. Defendant was being sentenced on nine separate felonies related to burglaries, thefts, and drug use. He had been imprisoned twice before, violated parole multiple times, and suffered no fewer than 16 similar convictions over nearly two decades. He admitted to the trial court that he had never taken advantage of resources to help with his substance abuse, and his self-described lifestyle was a cycle of drugs[,] crimes and incarceration.

A career criminal can [rarely] be deemed to fall outside the spirit of the [Three Strikes] 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. . . . And longer sentences for career criminals who commit at least one serious or violent felony certainly goes to the heart of the statute's purposeor spirit. (Strong, supra, 87 Cal.App.4th at p. 338, fn. omitted.)Given his substantial number of convictions over a relatively long period of time, defendant has demonstrated that he is the kind of revolving‑door career criminal for whom the Three Strikes law was devised (Peoplev.Gaston (1999) 74 Cal.App.4th 310, 320), and thus falls fully within the spirit of the Three Strikes law. Accordingly, we conclude the trial court did not abuse its discretion by determining that defendant should not be deemed outside the schemes spirit, even in part. (See Williams, supra, 17 Cal.4th at p. 161.)

III. Disposition

The judgment is affirmed.

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Mihara, Acting P. J.

WE CONCUR:

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McAdams, J.

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Duffy, J.

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[1] All unspecified code section references are to the Penal Code.

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