P. v. Smith

Filed 10/24/08 P. v. Smith CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.

Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted appellant, Timothy Floyd Smith, of petty theft (Pen. Code, 484)^[1]and assault with a deadly weapon ( 245, subd. (a)(1)). In a separate proceeding, the court found true a serious felony enhancement ( 667, subd. (a)) and allegations that Smith had a prior conviction within the meaning of the three strikes law ( 667, subd. (b)-(i)).^[2]

On December 4, 2007, the court denied Smiths Romero^[3]motion and sentenced him to an aggregate term of 11 years, the middle term of three years on his assault conviction, doubled to six years because of Smiths strike conviction, a five-year serious felony enhancement, and a concurrent six-month term on his petty theft conviction.

On appeal, Smith contends: 1) the court abused its discretion when it denied his Romero motion; and 2) his abstract of judgment contains an error. We will find merit to this latter contention. In all other respects, we will affirm.

FACTS

The Offenses

On April 11, 2007, Heriberto Lara was working as a loss prevention officer at a Kmart store in Ceres. At approximately 5:00 p.m., he saw Smith and his sixteen-year-old nephew, J.L., enter the store. Smith immediately went to the tools section and looked at propane torches. J.L. looked at gloves and took the security tags off them. Smith walked to another aisle got a deadbolt lock set and concealed it. Smith walked around more before he and J.L. made their way back to the front of the store. J.L. then headed towards the mens department and Smith to his Toyota Tundra Pickup in the parking lot.

Approximately four minutes later, J.L. exited the store followed by Lara. J.L. started running away, struck a cart, and fell down. Lara got on top of J.L. and handcuffed him with the assistance of two coworkers. Smith got out of the truck and ran toward Lara and J.L. He yelled and cursed at the Lara and his coworkers and ran to retrieve a can of pepper spray from his truck. He pointed the can at Lara and his coworkers and yelled for them to get off J.L. Smith then ran back to his truck, backed out of his parking space, and drove toward Lara at a high rate of speed, hitting some carts. Lara rolled J.L. out of the way and jumped over a cart to avoid being struck by the truck. The truck would have hit Lara and run over J.L if Lara had not dragged J.L. and jumped out of the way. During the commotion, J.L. got up and ran toward the middle of the parking lot where Smith picked him up and drove off.

Smith took a deadbolt set, a ratchet set, propane tips, and a laser guided level from the store. J.L. took property valued at less than $400.

Fernando Gutierrez testified he went outside the store after Lara asked him for assistance. Smith approached him outside, pulled out a badge and stated he was a police officer. Smith also stated that he knew Gutierrez was watching a kid in the store. After Gutierrez denied watching J.L., Smith said, Well, we are robbing your store at the moment.

The Romero Motion

Smiths probation report indicates that on December 30, 1991, he was sentenced to 60 days in jail on his conviction for misdemeanor second degree burglary. On January 9, 1992, he was ordered to pay a fine on his conviction for petty theft. On March 5, 1992, Smith was placed on probation and sentenced to 300 days in jail on his conviction for felony second degree burglary. On March 11, 1993, he was sentenced to a two-year prison term on his conviction for first degree burglary. On March 17, 1993, his probation in the second degree burglary case was revoked and he was sentenced to a two-year prison term. On December 8, 1994, Smiths parole was violated.

The probation report further indicates that Smith lived with his wife since 1993, married her in 2002, and separated from her in 2005. During that time, he was employed in the pest control business.

In a statement to the probation department, Smith claimed he thought the Kmart workers were gang members and were attacking his nephew because he was wearing red. Smith stated he exited his truck and waved a can of pepper spray and yelled at the workers in attempt to scare them into letting his nephew go. He then reentered his truck and drove to where his nephew was to join the fight. However, he kept driving when his nephew managed to escape. It was not until after his nephew got in the truck that he noticed his nephews hands were handcuffed. Smith denied almost hitting Lara or his nephew or knowing his nephew stole something before seeing he had been handcuffed. He also denied taking anything from the store and called Lara a liar when asked how Lara was able to identify certain specific items he took from the store. Smith told the probation department that he had been molested by an older male when he was 11 years old.

On November 30, 2007, Smith filed a Romero motion asking the court to strike his 1993 first degree burglary conviction. In the moving papers, defense counsel argued that Smith reasonably believed his nephew was being attacked by gang members and that both Smith and his nephew denied Smith induced his nephew to participate in the shoplifting offense. The motion cited as mitigating circumstances that Smith had been crime-free for 13 years, he was employed during that time, his previous crimes did not involve violence, and he committed the underlying offenses while suffering from the stress of two traumatic events, being molested as a child and his separation from his wife.

In a declaration attached to the motion, Smith reiterated some of his prior statements to the probation department. He also complained that the Kmart workers were partially responsible for the altercation because they should have identified themselves.

On December 4, 2007, the court heard Smiths motion. Defense counsel repeated some of the arguments he made in the moving papers and also informed the court that Smiths prior first degree burglary conviction resulted from Smith entering an attached garage.

In denying the motion the court stated,

Mr. Smith didnt commit offenses after his imprisonment originally for quite awhile, but when he did he committed a serious one. The circumstances are such that as a result of his acts someone could have been seriously injured or killed.

Mr. Smith has not, in the Courts opinion, displayed the amount of remorse and acceptance of responsibility that would justify the striking of a strike. He continues to minimize and to claim that his conduct was motivated by lawful reasons as opposed to unlawful ones. I think the jury rejected that explanation when they apparently did not believe that he reasonably thought that the other -- the security people who were attempting to apprehend his nephew were gang members or other people who were assaulting his nephew, so I dont feel under the circumstances that I can justify striking the (d) prior.

The court then sentenced Smith to an aggregate term of 11 years.

DISCUSSION

The Romero Motion

Smith contends the following are mitigating factors: 1) he committed the assault offense in defense of his nephew; 2) the prior strike conviction was 15 years old; 3) he remained conviction free for over 12 years; 4) he had a drug and alcohol abuse problem and was suffering emotionally and psychologically as a result of his separation from his wife and being sexually abused as a child; and 5) striking the prior conviction would still result in a substantial sentence. Smith further contends that when these facts are viewed in light of the increased punishment mandated by the three strikes law, it is clear that the court abused its discretion when it refused to strike his 1993 burglary conviction. We disagree.

Section 1385, subdivision (a) provides in relevant part, The judge or magistrate may, in furtherance of justice, order an action to be dismissed. In Romero, the California Supreme Court concluded that section 1385[, subdivision](a) permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.)

In determining whether to strike a prior conviction in furtherance of justice, a court must consider both the constitutional rights of the defendant, and the interests of society represented by the People . (Romero, supra, 13 Cal.4th at p. 530.) The trial court must consider the defendants background, the nature of the current offense and other individualized considerations (id. at p. 531), including all of the relevant factors, both aggravating and mitigating (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274). As further clarified by the Supreme Court in People v. Williams (1998) 17 Cal.4th 148:

[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 section 1385[, subdivision] (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. (Id. at p. 161.)

A courts failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) In reviewing for abuse of discretion, an appellate court is 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. [Citations.] 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. (Id. at pp. 376-377.)

Here, prior to ruling on Smiths Romero motion, the court considered Smiths claim that he acted in the erroneous belief he was defending his nephew and rejected it. The court also considered his drug and alcohol abuse, the trauma precipitated by his marital separation and sexual abuse as a child, and the long period he was crime free and other mitigating circumstances cited by the defense. However, in denying Smiths Romero motion the court concluded that the seriousness of his current offense, which easily could have resulted in serious injury or death to Lara or Smiths nephew, and his lack of remorse and failure to accept responsibility for his conduct outweighed the mitigating circumstances noted above.

Smith has not presented any argument why the court abused its discretion in denying his motion other than to imply that the mitigating factor he cites warranted the granting of the motion. Essentially, Smith is asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. Where 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 courts ruling, even if we might have ruled differently in the first instance. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Accordingly, we reject Smiths contention that the court abused its discretion when it denied his Romero motion.

Smiths Abstract of Judgment

Smith contends that his abstract of judgment erroneously indicates that the court imposed a restitution fine of $2,300. Respondent concedes and we agree.

The reporters transcript and minute order for Smiths sentencing hearing each indicate the court imposed a restitution fine of only $2,200. Accordingly, we will direct court to issue an amended abstract of judgment that correctly reflects that the court imposed a restitution fine in this amount.

DISPOSITION

The trial court is directed to issue an amended abstract of judgment that correctly indicates that the court imposed a $2,200 restitution fine and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

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^*Before Levy, Acting P.J., Hill, J., and Kane, J.

^[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

^[2] The three strikes allegations were based on Smiths 1993 conviction for first degree burglary.

^[3]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).