P. v. Royster
Filed 8/1/12 P. v. Royster CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
KENNETH WAYNE ROYSTER,
Defendant and
Appellant.
F062810
(Super.
Ct. No. BF134869A)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court
of
Lynette
Gladd Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant,
Kenneth Wayne Royster, pled no contest to a count of
(d)) and admitted a prior prison term allegation and a prior strike
allegation. After the court denied
Royster’s motion to strike the prior strike allegation, it sentenced him to the
midterm sentence of two years, doubled to four years for the prior strike
offense, plus one year for the prior prison term, for a total of five years in
prison. Royster contends the trial court
abused its discretion in denying his motion to strike the prior strike allegation,
and he was provided ineffective
assistance of counsel in the presentation of that motion. We will affirm.
FACTS
Both
parties stipulated to a factual basis for the plea based on the police
report. The facts are also described in
the probation officer’s report.
On September 2, 2010, Shelly Whygle,
a fraud investigator for the Kern Schools Federal Credit Union (KSFCU),
reported a series of suspicious transactions at the KSFCU automated teller
machine (ATM). Numerous checks were
deposited made payable to “Ken Royster” from the accounts of Steven C.
Horvath, Production Data Inc.; Doby Hager Trucking Incorporated; and Kathy
Sento. Some funds were withdrawn from
the ATM at the time of the deposits, and other funds were withdrawn from the
bank at a point of sale purchase. The
checks were returned as counterfeit and totaled approximately $193,314.92. KSFCU suffered an approximate loss of
$3,107.89 from the transactions.
The Kern
County District Attorney charged Royster with 13 counts of forgery (Pen. Code,
§ 470, subd. (d)) and three counts of grand
theft (§ 487, subd. (a)). The
complaint also alleged Royster had served three separate prior prison
terms. He originally pled not guilty to
all counts and denied the special allegations.
At a
pre-preliminary hearing, Royster changed his plea to no contest, admitted a
prison prior, and an unalleged strike prior.
The trial court granted the People’s motion to amend the complaint,
adding the alleged strike prior. The
remaining charges and allegations were dismissed.
At
sentencing, Royster moved to strike the prior strike allegation based on the
age of the strike, pursuant to Penal Code section 1385. The trial court denied the motion after
considering Royster’s criminal history and sentenced him to five years in
prison: the midterm of two years for
forgery, doubled to four years for the prior strike offense, plus one year for
the prior prison term.
DISCUSSION
I. The
Trial Court Did Not Abuse Its Discretion in Denying the Romero Motion
Royster
asserts the trial court abused its discretion in denying his motion to strike
the prior strike conviction.
Specifically, he argues the trial court failed to properly consider the
nature of the current offense, the nature of the strike offense, and the
remoteness in time between the two offenses.
We disagree.
Penal Code
section 1385, subdivision (a) provides in pertinent part, “The judge or
magistrate may, … in furtherance of justice, order an action to be
dismissed.” Our Supreme Court in
does permit a court acting on its own motion to strike prior felony conviction
allegations in cases brought under the Three Strikes law.” (Id.
at pp. 529-530.)
“[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, …, 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
scheme’s spirit, …, 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.)
A trial
court’s refusal or failure to dismiss or strike a prior conviction allegation
under Penal Code section 1385 is subject to review under the deferential abuse
of discretion standard. (
375.) “[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.) 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.]” (Ibid.)
Royster
contends the trial court failed to properly weigh all the appropriate factors
listed in People v. Williams,
court to consider a Romero motion
based on the age of the strike. Contrary
to Royster’s claim on appeal, the trial court did weigh the appropriate factors
when it denied Royster’s motion. The
trial court was well aware of its discretion to strike the prior serious felony
conviction pursuant to Romero, but
declined to do so, noting Royster’s long criminal history. The trial court stated:
“With
regard to the Romero motion, [Royster] was convicted of assault with a deadly
weapon on a peace officer in 2001 and served a five-year sentence. He was paroled in ’03.
“In
2005, he was convicted of [illegal gun possession (Pen. Code, § 12021.1)]
with a strike prior, received a four-year sentence. Was paroled in ’05. Violated parole, paroled again in ’08. Violated parole in 2010. And then this crime was committed in
2010. So it does not appear that he has
rehabilitated himself and become a law-abiding citizen, so he’s not outside the
spirit of the three strikes law. I will
reject the Romero motion.”
Given
Royster’s long criminal history, the trial court did not abuse its sentencing
discretion in denying appellant’s request.
The record shows that the trial court understood its discretionary
authority. It weighed the competing
factors and came to a reasonable conclusion.
In view of these facts and circumstances, Royster has failed to show
abuse of discretion. (See
II. Royster Was Not Denied Effective Assistance of Counsel
Royster
also claims he was provided ineffective assistance of counsel in the
presentation of his Romero
motion. He argues his trial counsel had
persuasive arguments to make in support of his Romero motion, which counsel failed to present. We disagree.
To
establish ineffective assistance of counsel, it must be shown that trial
counsel’s performance was deficient, falling below an objective standard of
reasonableness under prevailing professional norms, and that the alleged error
prejudiced the defendant. (
668, 687.) “Prejudice is shown when
there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (People
v. Williams (1997) 16 Cal.4th 153, 215.)
Royster
fails to prove both the deficient performance of his trial counsel and
prejudice. Royster’s counsel did in fact
raise the Romero motion. While Royster argues on appeal that his trial
counsel should have argued the motion more fully, the record indicates, as
discussed above, the trial court weighed all the appropriate factors before
denying the motion. Thus, it is not
reasonably probable the trial court would have struck Royster’s prior strike
conviction had counsel fully articulated the reasons for raising the
assistance of counsel.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">*Before
Levy, Acting P.J., Kane, J. and Franson, J.
