P. v. Marquez

Filed 8/25/08 P. v. Marquez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a sentence of the Superior Court of Los Angeles County, Darlene E. Schempp, Judge. Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Blythe J. Leszkay, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury found defendant and appellant Benito Marquez (defendant) guilty of two counts of assault with a semiautomatic firearm and one count of possession of a firearm by a felon. The trial court denied defendants motion to strike under Penal Code section 1385^[1]his prior convictions of violent or serious felonies and sentenced defendant to, inter alia, two consecutive 25 years to life sentences and one concurrent 25 years to life sentence.

On appeal, defendant argues that the trial court abused its discretion when it denied his motion to strike his prior felony convictions and, therefore, his sentence should be reversed. We hold that the trial court acted within its discretion in denying defendants motion to strike his prior felony convictions and therefore affirm the sentence imposed by the trial court.

FACTUAL BACKGROUND

On October 23, 2006, at approximately 9:00 p.m., Armando Perez was driving on Ingomar Street in Reseda toward his parents house located at 19508 Ingomar Street. He noticed a green ford dually^[2]truck pass him. He recognized the truck; it was owned by Doroteo Flores. Perez and Flores had an outstanding dispute over money that Perez believed Flores owed to him. Perez could not see who was driving Floress truck because it was dark. Instead of proceeding to his parents house, Perez drove to a friends house who lived nearby and remained there for approximately 30 minutes. Perez assumed that the persons in Floress truck were looking for him and he did not want them to know where his parents lived.

At approximately 9:30 p.m., Perez drove back to his parents house. At the corner of Ingomar and Shirley, Perez again encountered Floress truck. Perez was headed northbound on Shirley, stopped at the stop sign at the intersection with Ingomar. Floress truck was headed westbound on Ingomar, stopped at the stop sign at the intersection with Shirley. Floress truck made a left turn, headed southbound on Shirley, and pulled up next to Perezs truck. Perezs drivers side window was facing the drivers side window of Floress truck. Defendant was driving Floress truck, and he told Perez several times to exit his truck to talk and resolve the problem. But Perez refused to leave his truck. Instead, he backed up his truck and parked next to the curb in the red zone. He did not want to leave his truck because of concerns about his safety.

Flores exited his truck, approached the drivers side window of Perezs truck, and the two men started talking about the money problem they had. Defendant exited Floress truck, approached Perez and Flores, walked back to Floress truck, and then approached the two men again.

As Perez and Flores were talking, two men who rented a room from Perezs father came out of his parents house and approached Perez and Floress location. The first of the two men was Flavio Hernandez, and when he stepped into the street, defendant pulled out a semiautomatic handgun, put it to Hernandezs head, and stated that it was none of their business . . . [and told them] to leave. The second man who had emerged from Perezs parents house, Pedro Campos, also had the gun pointed at him,^[3]causing both men to stop and then to go back into the house.

As Hernandez and Campos headed back toward his parents house, Perez [t]ook off in his truck northbound on Shirley. Floress truck turned around and began following Perez north on Shirley. Perez called On Star and was connected with a 911 operator. Perez told the 911 operator that Flores and defendant came to his house and had threatened him. He was nervous, but he tried to tell the operator everything that had happened, including that defendant had a semiautomatic handgun.

Police responded to the call and initially pulled over the wrong vehicle, but then realized their mistake and continued looking for Floress forest green dually. At some point, Floress truck turned on a street, and Perez lost site of it and the police.

Perez returned to his parents house. The police came by, picked up Perez, Hernandez, and Campos, and drove them to a location to determine if they could identify Flores and defendant. Perez identified defendant as the person driving Floress truck who had the handgun.^[4]

On October 23, 2006, Los Angeles Police Officer Nelson Ramaya was working at the Devonshire Division assigned to patrol. At approximately 9:40 p.m. that evening, he received a radio transmission in his patrol vehicle concerning an assault with a deadly weapon. He learned that the suspects were driving a green Ford dually pickup. His vehicle was travelling southbound on Tampa Avenue with its lights and siren on when he saw a vehicle that matched the description of the suspect vehicle. The vehicle was traveling northbound on Tampa in the opposite direction. Officer Ramayas partner made a u-turn and followed the suspect vehicle northbound on Tampa Avenue with lights and siren activated. The suspect vehicle turned right on to Superior Street at 50 miles per hour into a residential neighborhood, the driver almost losing control. After Superior Street transitioned into Marilla Avenue, the suspect vehicle made a left turn at the corner of Marilla and Vanalden, failing to stop at a posted stop sign. As the vehicle executed the left turn northbound on Vanalden, the driver lost control, bounced off the east curb and careened back across westbound . . . towards the west curb. As the vehicle was moving at approximately ten miles per hour back across Vanalden, it passed directly in front of Officer Ramayas patrol vehicle. The driver, defendant, jumped out of the vehicle while it was still moving. The vehicle then jumped the curb, went across the grass headed toward a home, and came to rest on the grass.

Officer Ramayas partner stopped their patrol vehicle approximately ten feet from where defendant jumped from the vehicle he was driving. Defendant staggered back and forth after he jumped, trying to get his footing. Officer Ramaya jumped from his vehicle. As defendant turned to run eastbound, he swung his arm in a running motion and Officer Ramaya observed a handgun in his right hand. Defendant ran around some bushes, and then along the side of a house towards the rear. Officer Ramaya followed defendants path and apprehended him as he tried to scale a six-foot fence.

On October 23, 2006, Officer Alex Belsky was working at the Devonshire Division assigned to patrol. His partner was Officer Ramaya. Officer Belsky was driving when they received a radio transmission concerning an assault with a deadly weapon. They located and pursued a dark green dually truck. The truck came to rest after failing to negotiate a turn and crashing into a curb.

After the crash, Officer Belsky assisted Officer Ramaya in looking for potential evidence. He searched both sides of the path of defendants flight. He searched the side of the bushes adjacent to the driveway of the house where they apprehended defendant. Another officer called Officer Belskys attention to a semiautomatic handgun the former had located in the bushes next to the driveway. Officer Belsky examined the handgun and determined that a round was jammed in the magazine. The jam would not allow the ammunition into the chamber so the weapon could fire. There were six rounds in the magazine, and he located an additional round on the drivers side floor of Floress truck.^[5] Officer Belsky requested a fingerprint analysis of the handgun, but there were no prints on the gun.

According to defendant, Flores called him on October 23, 2006, and told him that Perez had broken into Floress garage and taken tools, some of which belonged to defendant. Flores came to defendants house and defendant drove them in Floress truck to where they believed Perez lived to ask Perez to return the tools. When they arrived at the location, Perezs truck was not there. As they were preparing to leave, Perez pulled up. Defendant told Flores to exit the truck and talk to Perez about getting the tools back. Flores was standing in the street next to Perezs truck, and Perez was sitting in his truck. Defendant remained in the drivers seat of Floress truck.

As Flores and Perez were talking, defendant saw two men walking up behind Flores. Defendant exited the truck and arrived just in time to tell [the two men] to back off and let [Perez and Flores] talk. Defendant held his hand up as he told the two men to back off. When the two men saw defendant, they got scared and went inside and then [Perez] took off in his truck. Defendant told Flores to get in the truck so they could follow Perez, continue the conversation, and get the tools back.

Defendant was travelling 20 miles per hour, and he noticed Perez talking on the phone. He assumed Perez had called the police. Defendant said, With my luck, Im going to be the one to get thrown in jail. Hes the one that committed a crime . . . . Lets leave. As Perez continued straight ahead, defendant turned onto Roscoe and then made a left turn at Tampa. He was going home when he noticed police cars behind him. Instead of parking, he jumped from the truck and ran. He wanted to get away from the police because of his prior criminal record.^[6] Defendant said that he did not point a gun at anyone that night and that he did not have a gun with him.

According to Flores, he went with defendant to Perezs house on October 23, 2006, to ask Perez to return their property. While Flores was talking to Perez, two men approached from behind and tried to attack Flores. Defendant prevented them from attacking Flores. Defendant did not have any weapons that night. But Flores made a handwritten statement to police that night, describing the incident, in which he stated that defendant had a gun and pointed it at the kids that night. Flores maintained, however, that a police officer told him that if he wrote that defendant had a gun, he would be quickly released from custody.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an amended information that charged defendant in Count 1 with assault with a semiautomatic firearm in violation of section 245, subdivision (b)a felony; in Count 2 with assault with a semiautomatic firearm in violation of section 245, subdivision (b)a felony; and in Count 3 with possession of a firearm by a felon in violation of section 12021, subdivision (a)(1)a felony. The District Attorney alleged as to Counts 1, 2, and 3 that defendant had suffered six prior convictions of violent or serious felonies within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The District Attorney further alleged as to Counts 1, 2, and 3 that defendant had suffered two prior convictions of serious felonies within the meaning of section 667, subdivision (a)(1). Finally, the District Attorney alleged seven factors in aggravation under California Rules of Court, rule 4.421.

Defendant pleaded not guilty and denied the special allegations. Following a jury trial, defendant was found guilty on all counts. In a subsequent bifurcated proceeding, the jury found true the allegations that defendant had been previously convicted of six violent or serious felonies within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and had been previously convicted of two serious felonies within the meaning of section 667, subdivision (a)(1).

Defendants motion under section 1385 to strike his prior convictions of six violent or serious felonies was denied by the trial court, as was his motion to declare his Three Strikes sentence cruel and unusual punishment. The trial court also denied defendants motion for a new trial.

The trial court imposed a sentence of 25 years to life on Count 1; a consecutive sentence of 25 years to life on Count 2; an additional consecutive five year sentence on Count 2 under section 667, subdivision (a)(1); and a concurrent sentence of 25 years to life on Count 3.

Defendant filed a timely notice of appeal from the judgment of conviction.

DISCUSSION

A. Standard of Review

Defendants challenge to the trial courts denial of his motion to strike his prior convictions of violent or serious felonies is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony) [a trial courts refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion].) 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 [Citation.] 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.)

B. The Trial Court Did Not Abuse Its Discretion

In denying defendants motion under section 1385, the trial court made the following observation: I have read your motion. You cited all the appropriate law for the court and the facts for the court to consider in determining whether or not the defendant should have a prior stricken. I read the peoples response, and I have looked at [defendants] record, which unfortunately works against him. [] From an earlier reading, certainly not today, I had made the note that he was a recidivist. That is based on the fact that his first conviction was back in 82. I know he explained it. I believe he said he was an accessory or something on that attempt[ed] murder charge. But he was 18. Then he returned after he washe was paroled December 31, 87. And then in 1995, he was convicted again for 10851 of the Vehicle Code and 2800.2(A) of the Vehicle Code, which is very serious, evading police officerendangering everyone when that occurs, and, on that, I dont know why he was sentenced to a term of 25 to life, but apparently the Appellate Court didnt either. They, on appeal, reversed it and he was given 100 months in prison, which calculates to eight years. Defendant was paroled from the 1995 convictions in 2001 and was thereafter deported, but he returned to the United States.

The trial court then allowed defendants daughter to testify on his behalf. After hearing the daughters testimony, the trial court explained: I, too have seen a good side of [defendant]. I have seen him thank [defense counsel] during the course of the trial. That is a rarity. But he does seem to have a good side, and I think he has been an excellent father. []  But there is no way I can excuse a felon with a loaded weapon in his possession. There is just no excuse at all for that. That just makes him a continuing danger to the community. [] And as sympathetic as I am to the familyI recognize he has been a good father, and I hope they follow the values that he has tried to put in them, but I cannot strike a prior in this case. [] If it was just, you know, the first two charges, perhaps I might consider itI dont knowbut not with this felon with a loaded gun. And the officers recovered the gun.

The trial court therefore concluded: I see a continuing course of conduct and danger to the community. The request to strike the prior is denied.

Defendant contends that by focusing on only one factor―that he was a felon in possession of a gun―the trial court failed to exercise its discretion under section 1385 and that such failure is itself an abuse of discretion sufficient to warrant a reversal of his Three Strikes sentence. According to defendant, he is not a career criminal because his six prior convictions of violent or serious felonies all arose from the same incident 24 years prior to the present offenses, when he was 18 years old, and were based on his involvement as an accessory. From defendants perspective, his convictions in 1982 are too remote in time to justify sentencing under the Three Strikes law.

[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts discretion in sentencing repeat offenders. ([People v.] Romero [(1996)] 13 Cal.4th [497,] 528 [53 Cal.Rptr.2d 789, 917 P.2d 628].) 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] that 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.)

Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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. [Citation.] (Carmony, supra, 33 Cal.4th at p. 377.)

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 court's 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 [People v.] Williams [(1998)] 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.)

Here, even if we agreed that defendants convictions in 1982 and relatively crime-free life since that time^[7]made him a person outside the spirit and intent of the Three Strikes law because he is not a career criminal, we do not substitute our judgment for that of the trial court. Under the applicable standard of review, we cannot disturb the ruling of the trial court unless that ruling appears arbitrary or irrational, a conclusion we do not reach under the circumstances of this case.

The trial court was aware of the nature and circumstances of the present felonies. It is reasonable to infer from the evidence in the record that defendant and Flores stalked Perez the night of the incident, intent upon confronting him over a dispute about money or property. Defendant was armed with a loaded semiautomatic weapon. The conduct and demeanor of defendant and Flores caused Perez concern for his safety and prompted him to remain in his vehicle during the discussion with Flores. When Hernandez and Campos came out to investigate what must have appeared to be a suspicious scene, defendant put his handgun to Hernandezs head and then pointed it at Campos.

Moreover, when Perez fled the scene after witnessing defendant pointing the gun at the other two men, defendant pursued him in Floress truck, causing Perez to call 911. Defendant then attempted to evade pursuing police while driving recklessly at a high rate of speed. Defendant drove so fast through a residential neighborhood, he lost control of the truck and crashed into the curb, causing the truck to jump the opposing curb and come to rest on the lawn of a residence. Defendant jumped from the moving truck, leaving it driverless, and attempted to evade the pursuing police on foot. He was carrying the weapon and apparently disposed of it in the bushes. Based on the evidence of the nature and circumstances of the present felonies, it was not arbitrary or irrational for the trial court to conclude that defendants actions that night were reckless and dangerous, and militated in favor of imposing a Three Strikes sentence.

The nature and circumstances of the prior felonies likewise support a reasonable inference that a Three Strikes sentence was warranted. The 1982 convictions were for robbery and attempted murder, extremely serious offenses. The 1995 convictions included a conviction for evading police, conduct similar to defendants conduct on the night of the incident. It was therefore reasonable for the trial court to conclude that defendant had engaged in a continuous course of activity and presented an ongoing danger to the community.

The trial court also considered defendants background, character, and prospects. On the one hand, the trial court noted that defendant had a serious criminal history, dating back to when he was 18. Although it appears defendant went for significant periods of time without suffering criminal convictions, he had a pattern of periodically engaging in serious and dangerous criminal behavior. On the other hand, the record reflects that the trial court considered and weighed defendants daughters testimony about defendant being a loving, caring, and supportive father to his children, finding that defendant had been an excellent father.

The trial court considered and weighed the appropriate factors under the cases cited above and came to a rational and impartial conclusion that this was not an extraordinary case warranting a finding the defendant fell outside the spirit and intent of the Three Strikes law. Therefore, its ruling on defendants motion to strike his prior convictions was not an abuse of discretion.

DISPOSITION

The sentence imposed by the trial court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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

^[2] Perez explained that a dually is a truck with dual rear wheels on each side.

^[3] Perez testified that defendant pointed the gun at Campos, but Campos testified that due to darkness and the distance from defendant, he could not see what was in defendants hand nor could he see defendants face.

^[4] Campos also apparently identified defendant in the field that night, but, as noted, at trial he testified it was too dark for him to see either the gun or defendants face.

^[5] The police report written the night of the incident stated that the round was recovered from the passenger side floorboard.

^[6] Defendant admitted that he had been convicted of robbery and attempted murder as an accessory in 1982.

^[7] We are cognizant that, in 1995, defendant was convicted of driving a vehicle without the owners consent and evading pursuing police, both serious offenses.