P. v. Ortega
Filed 8/20/12 P. v.
Ortega CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL ROBERT ORTEGA,
Defendant and Appellant.
C069867
(Super.
Ct. No. 10F01556)
Defendant Paul
Robert Ortega pleaded guilty to assault with a deadly weapon while confined in
4501)
and possessing a sharp instrument while
confined in state prison (count two; § 4502, subd. (a)), and admitted four
prior strikes (§§ 667, subds. (b)-(i), 1170.12).
strike three strikes (§ 1385; People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) and sentenced defendant to a term of 25 years to life,
consecutive to his current term.
name="_ftnref3" title="">[3]
Defendant contends
the trial court abused its discretion by denying his request for
of his overall sentence warranted striking one or more strikes, and (2) his
strikes resulted from a single act or indivisible course of conduct. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Defendant’s Present Offenses
According to the parties’ stipulation,
on or about November 2, 2009, defendant, an inmate at California State Prison,
Sacramento, assaulted the victim with a metal weapon over six inches long and
sharpened to a point. Defendant chased
the victim down, making stabbing motions.
When the victim fell to the ground, defendant got on top of him and
stabbed him 10 or more times.
Defendant’s Strikes
On or about March 5, 2004, defendant was convicted of three
counts of attempted murder (§§
664/187) and one count of shooting at an
occupied vehicle (§ 246).
Defendant’s Request for Romero
After entering his plea, defendant
filed a request that the trial court strike all but one of his strikes for
sentencing purposes. He argued: (1) Because he was already serving a life
sentence, the lowest possible term on the current offense would defer his
earliest possible parole date until he was in his sixties. Therefore, even if the court struck all but
one strike, defendant’s punishment would
remain substantial and within the spirit of the “Three Strikes” law, but if the
court did not strike the strikes his punishment would be excessively
severe. (See People v. Garcia (1999) 20 Cal.4th 490, 503 (Garcia); People v. Bishop
(1997) 56 Cal.App.4th 1245, 1250 (Bishop).)
from an indivisible course of conduct, the court had discretion to strike one
or more of them. (People v. Benson (1998) 18 Cal.4th 24, 36.) (3) Because the prior strikes were based on a
single act, it would be an abuse of discretion not to strike all but one of
them. (People v. Burgos
(2004) 117 Cal.App.4th 1209, 1215-1216.)
The People replied
that defendant clearly fell within the parameters of the Three Strikes law
under the test of People v. Williams
(1998) 17 Cal.4th 148. They also
asserted: in addition to his four
strikes, defendant, a gang member, was convicted in the same case of possession
of a loaded firearm and possession of an assault rifle; when defendant
committed those offenses, he was on probation for a drug offense; while in
prison, defendant incurred a rules violation for gang activity; and his current
offense was a two-on-one assault.
The Trial Court’s Ruling
After hearing extensive argument, the
trial court denied defendant’s request for Romero
relief. The court expressly found that
defendant’s strikes were not based on a single act because he fired multiple
shots into a car with multiple passengers.
DISCUSSION
Defendant renews the arguments he
raised below. Like the trial court, we
find them unpersuasive.
The Three Strikes
law “‘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.]”
(People v. Carmony (2004)
33 Cal.4th 367, 377.)
A trial court may
properly exercise its discretion to strike a defendant’s prior strike or
strikes under section 1385 only if it finds that “in light of the nature and
circumstances of his prior 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 [Three Strikes] 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.” (People
v. Williams, supra, 17 Cal.4th at
p. 161.)
When a trial court
decides not to strike a prior strike, we review its decision under the abuse of
discretion standard. (
In the context of sentencing decisions, “a trial court does not abuse
its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.”
(Id. at p. 377.) Reversal is justified where the court was
unaware of its discretion to strike a prior strike, or refused to do so at
least in part for impermissible reasons.
(Id. at p. 378.) But where the court, aware of its discretion,
“‘balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the . . . ruling, even if
we might have ruled differently in the first instance’ [citation].” (Ibid.)
Here, defendant
fails to show that the trial court was unaware of its discretion to strike
strikes or that it used any impermissible factor to justify its decision. He also fails to show why he should be deemed
outside the spirit of the Three Strikes law.
A
Defendant asserts
first that the severity of his sentence warranted striking one or more
strikes. But defendant cites no
authority holding that a trial court should strike strikes merely because
imposing them would produce a “severe” sentence, and there could be no such
authority because the Three Strikes law is manifestly intended to punish
severely those defendants who fall under it.
Defendant relies
on Garcia, supra, 20 Cal.4th 490 and Bishop,
supra, 56 Cal.App.4th 1245. His reliance is misplaced.
In
deferential standard, a decision by the trial court to strike a prior
conviction allegation with respect to one count but not another. The court noted that because the resulting
sentence (31 years four months to life in state prison) was not lenient, “the
Attorney General cannot claim the sentence is inconsistent with the purpose of
the Three Strikes law.” (
does not hold that a trial court abuses its discretion by imposing strikes merely because the court could have given the
defendant a long sentence without them.
In
discretion standard, a trial court decision to dismiss a strike, the appellate
court stated: “The length of sentence to
be imposed also presents an open-ended inquiry because, when considered in
conjunction with the defendant’s age, it presents the trial court with an
opportunity to evaluate factors such as how long the state maintains an
interest in keeping the defendant as a public charge and after what period of
incarceration he is no longer likely to offend again.” (Id.
at p. 1251.) But, like the holding in
conclusion that any such “open-ended inquiry” must result in striking one or
more strikes.
B
Defendant
asserts: “[I]t was an abuse of
discretion under Romero to deny the application as to all four of the strike
priors when the four prior convictions resulted from an indivisible, single
act, course of conduct.” (
If defendant means that the trial court should have struck all four of
his strikes, his contention is not cognizable because he requested below that
the court strike only three of them. But
even if defendant actually seeks only the striking of three of his strikes, his
contention fails.
As the appellant,
defendant has the burden of showing reversible error. Yet he does not even mention the trial
court’s express finding that the prior strikes, which included three counts of
attempted murder and one count of shooting into an occupied vehicle, did not
constitute an indivisible course of conduct, or the court’s implied finding
that they did not arise from a single act.
Because defendant merely asserts his position without explaining why the
trial court erred by rejecting it, he has failed to show grounds for
reversal. (See Estate of Palmer (1956) 145 Cal.App.2d 428, 431 [appellant may not
win reversal by simply asserting error and challenging respondent to prove the
trial court was right].)
In any event, even
if defendant had made a persuasive argument below that his prior strikes
constituted a single act or an indivisible course of conduct, the trial court
would not have been compelled to strike any of them. In People
v. Benson, supra, 18 Cal.4th 24,
the high court noted in dictum, without deciding the question, that there might
be circumstances under which two prior felony convictions were “so closely
connected -- for example, when multiple convictions arise out of a single act
by the defendant as distinguished from multiple acts committed in an
indivisible course of conduct -- that a trial court would abuse its discretion
. . . if it failed to strike one of the priors.” (Id.
at p. 36, fn. 8.) However, in
920, we held that where such a situation exists a defendant is entitled only to
“consideration by the trial court of the closeness of the two strikes in
determining whether, in the exercise of
discretion, one should be stricken.” (Id.
at p. 931, original italics.)
As defendant
admits, the trial court and the parties discussed this issue at length before
the court exercised its discretion not to strike any of defendant’s
strikes. We see no abuse of discretion
in that decision.
DISPOSITION
The judgment is affirmed.
NICHOLSON , J.
We concur:
BLEASE , Acting P. J.
BUTZ , J.
name="_ftn1" title="">[1] Further undesignated section references are
to the Penal Code.
name="_ftn2" title="">[2] Defendant asserts that he admitted the prior
strikes “as part of an indivisible transaction committed against three
individuals.” However, the trial court
did not find that the strikes constituted “an indivisible transaction.”
