face="Times New Roman">
face="Times New Roman">P. v. Scally
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">Filed
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
face="Times New Roman">
face="Times New Roman">THE PEOPLE,
face="Times New Roman">
face="Times New Roman"> Plaintiff and
Respondent,
face="Times New Roman">
face="Times New Roman">v.
face="Times New Roman">
face="Times New Roman">GEORGE WILLIAM SCALLY,
face="Times New Roman">
face="Times New Roman"> Defendant and
Appellant.
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman"> E057024
face="Times New Roman">
face="Times New Roman"> (Super.Ct.No.
FSB1104558)
face="Times New Roman">
face="Times New Roman"> OPINION
face="Times New Roman">
face="Times New Roman"> APPEAL
from the Superior Court of San Bernardino
County. J. David Mazurek, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
face="Times New Roman"> Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Barry Carlton, and Teresa Torreblanca, Deputy Attorneys
General, for Plaintiff and Respondent.
face="Times New Roman"> Defendant
George William Scally appeals his conviction for second degree robbery (Pen.
Code, § 211;
name="_ftnref1" title="">face="Times New Roman">[1] count 1) as the
getaway driver in a robbery. The jury
also found true allegations that defendant had two prior strike convictions (§
667, subds. (d) & (e)(2)(A)) and a prior serious felony conviction (§ 667,
subd. (a)). The trial court sentenced
defendant to 30 years to life in prison.
Defendant appeals the judgment, contending the trial court abused its
discretion in denying his Romero
requesting the court to strike one or both of his prior convictions under the
and affirm the judgment.
into Advanced America, a check cashing store in Redlands. Stephanie Guerrero was working there at the
time. After Guerrero explained to
Avington the cash-advance process, Avington pulled out a gun and told Guerrero
he was committing a robbery. He then
told Guerrero to remove the money from her drawer and put it in his black,
drawstring bag. After she did this,
Avington told Guerrero to open a second drawer, which she did. Guerrero removed from the two drawers a total
of $350, which she put in Avington’s black bag.
The cash included three $100 bills.
go to the safe in the back of the store, open it, and remove its contents. Guerrero removed from the safe some money and
a “bait bag,†and placed them in Avington’s black bag. The bait bag contained a prepaid Visa card,
fake deposit slips, and $100, consisting of 60 prerecorded $1 bills and 2
prerecorded $20 bills. After confirming
there was nothing left in the safe, Avington ran out of the store. Guerrero hit the panic button and called 911.
Advanced America store’s surveillance cameras and the video was shown to the
jury. During the trial, Guerrero
identified Avington as the person who robbed her.
10:00 a.m., she was at a recycling
center in the Stater Bros. shopping plaza where the Redlands Advanced America
store was located. Slaton saw a black
SUV with a handicap license plate parked along the curb, nearby. The engine was running and the driver’s
window was open. Slaton noticed the
driver was a Black male with cornrows in his hair. Slaton heard someone running and looked
toward the SUV. She saw a person dive
into the back seat of the SUV. The SUV
then sped away, behind the Stater Bros. market.
A surveillance video from behind the Stater Bros. market showed a black
SUV driving behind the store at 10:14 a.m.
number of the SUV on her cell phone (69847ZP).
The number was slightly different from defendant’s SUV license plate
number (6984ZDP). At a photographic
lineup, Slaton identified defendant as the driver of the SUV but was unable to
identify him in court.
spotted a black SUV with a handicap license plate. The
car was registered to an individual with the last name of Scally. The license plate number (6984ZDP) was
similar to the number Slaton had written down.
About an hour later, the police stopped the SUV. Defendant, whose hair was braided, was in the
front passenger’s seat. Avington was in
the rear right passenger seat. Rachelle
Scally was in the driver’s seat. The
police searched defendant and found him in possession of $424.03, which
included six $20 bills and three $100 bills.
One of the $20 bills matched the serial number of one of the prerecorded
$20 bills from the bait bag.
apartment in Redlands and found a
black nylon overnight bag containing clothing matching the description of
clothing Avington was seen wearing during the robbery, a revolver, bullets, the
Visa card taken during the robbery, a plastic deposit bag from Advanced
America, and $341 in cash. Sixty of the
$1 bills from the black nylon bag matched the serial numbers on the bait money.
Defendant contends the trial court
abused its discretion by denying his Romero motion
to strike one or more of his prior strike convictions under section 1385. Defendant argues that, based on the totality
of the circumstances, the trial court should have deemed defendant outside the Three
Strikes sentencing scheme’s spirit.
Defendant claims that, by denying the motion, the trial court ignored his
nonviolent conduct in the instant case, sentence
proportionality, the interests of society, and defendant’s efforts to lead
a law-abiding life. We disagree. There was no abuse of discretion.
Under section 1385, subdivision (a),
the trial court has discretion to
strike a prior felony conviction allegation in furtherance of justice. (Romero,
supra, 13 Cal.4th at pp. 529-530.) In order to do so, 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.†(People v. Williams (1998) 17 Cal.4th 148, 161.)
We
review the trial court’s refusal to strike a prior felony conviction under
section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367,
376.) The defendant bears the burden of
establishing that the trial court’s decision was unreasonable or arbitrary. (People v.
Superior Court (Alvarez) (1997)
14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful
sentencing objectives].) “Where the
record demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the
trial court’s ruling, . . .†(People v. Myers (1999) 69 Cal.App.4th 305,
310.) “‘[I]t is not enough to show that
reasonable people might disagree about whether to strike one or more’ prior
conviction allegations.†(Carmony, at p. 378.) “[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.)
Defendant filed a written
claiming he fell outside the spirit of the Three Strikes law because his strike
convictions occurred in 2000 and his subsequent drug possession conviction in
2004 and conviction in 2006 for driving under the influence, were of decreasing
seriousness. His two felony convictions
in 2000 were for assaults committed for the benefit of a street gang (§§ 245,
subd. (a)(2), 186.22, subd. (b)(1)(c)). Defendant
asserts that his involvement in the current case was relatively minor, since
the robbery charge is based solely on defendant being the getaway driver. His involvement in the crime was limited to
being an aider and abettor. Defendant further
claims he has matured since his prior strike convictions. At the time of the charged offense, he was 34
years old, had moved away from his previous gang’s territory, had married, was
employed, and was supporting two children.
He also had been volunteering to help at-risk children, was living a
law-abiding life, and had been crime free for three years, since his release in
2009. Defendant argued that, under the
totality of these circumstances, his 30-year-to-life sentence was excessive and
disproportionate.
The trial court acknowledged defendant
had been crime free for three years but denied defendant’s Romero motion
based on defendant’s criminal history and the nature of the current offense. This was not an abuse of discretion because
the charged offense of robbery was a serious violent felony, in which
defendant’s companion used a gun to commit the robbery. In addition, defendant’s criminal history
included assault with firearms for the benefit of a gang. Defendant also had violated parole twice, and
had already benefitted from the court previously dismissing his strikes when he
was sentenced for drug possession in 2004.
A little over two years after defendant’s release in June 2009, defendant
participated in the charged crime.
Defendant had not been a model citizen.
After a relatively brief period out of prison, he returned to a life of
crime by assisting Avington in committing the violent crime of armed robbery. Under these circumstances, we cannot say the
trial court abused its discretion in finding defendant fell within the spirit
of the Three Strikes law, and denying defendant’s Romero motion
to dismiss one or more of his prior felony convictions.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
face="Times New Roman">CODRINGTON
face="Times New Roman"> J.
We
concur:
RAMIREZ face="Times New Roman">
P. J.
KING face="Times New Roman">
J.
name="_ftn1" title=""> face="Times New Roman">face="Times New Roman">[1] Unless otherwise noted, all statutory references are to the Penal Code.
name="_ftn2" title=""> face="Times New Roman">face="Times New Roman">[2] People v.
Superior Court (Romero)
