P. v. Shine
Filed 8/7/12 P.
v. Shine CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
SHANNON DION SHINE,
Defendant and
Appellant.
F063159
(Super.
Ct. No. 09CM0070)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Kim
Malcheski, 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, Michael A. Canzoneri and Barton
Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Shannon Dion Shine was convicted of count II, corporal injury to a cohabitant
with a prior conviction (Pen. Code,
name="_ftnref2" title="">[1] § 273.5, subds. (a), (c)); count III,
assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(1)); and count IV, corporal injury to a cohabitant with a prior
conviction (§ 273.5, subd. (a)). He
had three prior strike convictions and one prior prison term enhancement. He was sentenced to an aggregate third strike
term of 50 years to life plus one year for the enhancement.
On appeal,
defendant argues the court erroneously admitted evidence of his prior acts of
domestic violence as propensity evidence
pursuant to Evidence Code section 1109, and asserts such evidence violated his
constitutional right to due process.
Defendant also contends the court abused its discretion when it declined
to dismiss his prior strike convictions and instead imposed two third strike
terms. We will affirm.
In the
summer of 2008, P.A. was involved in a romantic relationship with
defendant. Defendant and P.A. lived
together in her apartment in Lemoore, and defendant had his own key to her
apartment. Defendant and P.A.
occasionally argued. On one occasion,
defendant scared P.A. and she ran out of the room. However, there had never been any physical
violence in their relationship.
Incident of August 17, 2008 (count IV)
In the
early morning hours of August 17, 2008, P.A. locked herself out of her
apartment. P.A. walked to a nearby store
and called defendant, who was at a friend’s house in Merced. She asked defendant to return to Lemoore to
use his own key so she could get back into her apartment. Defendant agreed and had someone give him a
ride back to Lemoore.
P.A.
testified that defendant returned to the apartment about three hours
later. When defendant arrived, he
started “talking smack” because he was angry about having to return to
Lemoore. P.A. testified that defendant
used his cell phone to record himself as he repeatedly said that he was going
to “woop” her. Defendant and P.A.
verbally argued as they walked upstairs to the apartment. Defendant unlocked the apartment with his
key, closed the door, and locked P.A. out for a few minutes. Defendant emerged from the apartment and said
he was going to leave in P.A.’s van.
P.A. objected and they argued about whether he could use her van. Defendant told P.A. that she better stop
arguing.
P.A. testified that defendant went
downstairs and headed for her van. P.A.
followed him and repeatedly told him not to take her van. P.A. testified that defendant pushed her to
the ground and into mud. When P.A. tried
to get up, defendant “stomped” her down into the mud more than once. Defendant grabbed P.A.’s hair and tried to
drag her. P.A. said he was going to pull
her hair out. Defendant replied,
“Good.” Defendant eventually left in
P.A.’s van.
After defendant left, P.A. went to
the nearby apartment of Dorris Johnson, who was also the property manager. P.A. told Johnson what happened. P.A. was frightened and asked Johnson not to
let defendant or anyone else in the apartment.
P.A. was muddy, and she had scratches on her arm and a bruise on her
side. Johnson encouraged P.A. to go to
the hospital. P.A. refused and stayed
with Johnson almost the entire day.
Later that evening, P.A. went to
the hospital for treatment of her injuries.
She told medical personnel that she suffered the bruise while doing “hip
hop aerobics” at home. P.A. testified
she lied because she was scared and terrified of defendant.
Text messages
P.A.
testified she had previously programmed defendant’s cell phone number into her
cell phone. She identified the contact
as “Deon,” misspelling defendant’s middle name of “Dion.” P.A. testified that she received a series of
threatening text messages from “Deon,” beginning on August 17, 2008, and
continuing into September 2008. She also
received a threatening text message that was directed to Dorris Johnson.
On September 9, 2008, P.A. received
a text message from “Deon,” in which he threatened to “[t]orch” her
apartment. P.A. believed defendant was
capable of doing it. Another message stated: “ ‘I not known for playin [
tired of getting your ass wooped and straight up,’ ” and “ ‘I’ma
knock you out.’ ”
Incident of September 11, 2008 (counts II & III)
P.A.
testified about an assaultive incident which occurred on September 11,
2008. Defendant called P.A. at her
apartment and asked to use her van. P.A.
refused. Defendant asked if he should
pick up his things from the apartment.
P.A. replied, “ ‘If that’s what you want.’ ” Defendant said he was on his way.
P.A.
testified she was in bed when defendant arrived at her apartment. Defendant was angry, and they argued as he
gathered his belongings. Defendant
suddenly rushed to the bed and started to hit P.A. Defendant hit P.A. in the face with a closed
fist more than once. As defendant hit
her, P.A. repeatedly asked defendant, “ ‘What did I do What did I do’ ”
P.A.’s
14-year-old daughter was in the apartment, and she heard P.A. crying. The girl looked toward the bedroom and saw
the bed moving. She went to the doorway
but someone closed the bedroom door. She
knocked and asked what was wrong. P.A.
was still in bed, and she asked defendant if she could tell her daughter that
she was okay. Defendant replied,
“ ‘You’re not okay.’ ” P.A.’s
daughter testified that she heard part of this exchange.
P.A. asked defendant to get some
ice for her. Defendant replied,
“ ‘You don’t need any ice.’ ”
Defendant left the apartment and drove away in P.A.’s van.
P.A.
testified she suffered bruises on her face.
She went to the emergency room, and again told hospital personnel that
she suffered the injuries doing “hip hop aerobics” at home. P.A. testified that she lied because she was
still afraid of defendant.
Dorris
Johnson saw P.A. after she returned from the hospital. P.A. had bruises and an injury on her
forehead, black eyes, and appeared to be in shock.
P.A.’s report to the police
On
September 12, 2008, P.A. went to the Hanford Police Department to report the
assaults. P.A. testified she went to
Hanford instead of Lemoore because she was afraid defendant would see her or
find out that she was talking to the police.
P.A. spoke to Officer Alvaro Santos from the Lemoore Police
Department. They went back to Lemoore
for the interview.
Santos testified P.A. was shaking,
crying, and very upset. As Santos
interviewed P.A., she received a text message from “Deon” which stated: “ ‘You ready for round two’ ”
Prior domestic violence incident
K.L. testified that she dated defendant
in 2004 during which time defendant physically assaulted her. He hit her more than once and he hit her in
the face with his hands. He threatened
her, and he told her, “ ‘You think this is over but it’s not.’ ” K.L. testified she sought medical attention
as a result of the attack.
Expert testimony
Pamela
Tejada testified she was the victim/witness advocate coordinator for Lemoore
Naval Air Station, and she had previously testified in other cases as an expert
in domestic violence. Tejada testified that
in her experience, it was common for victims to lie about domestic violence to
health care providers because they typically do not want to send a loved one to
jail.
Amanda
Murphy testified she met defendant for the first time on September 11,
2008. Defendant was driving a friend’s
van and picked her up at a park. They
spent the entire afternoon and evening together, and spent time with
defendant’s friends, Eric Bruce, Sandra Briceno, and Rodolfo Valdez.
Murphy
testified that they were stopped by Lemoore police officers that evening
because the van’s registration tags were expired. Defendant dropped off Murphy at her mother’s
house around 3:00 a.m. the next morning.
Murphy testified she had only met defendant twice, but she thought he
was a really good person.
Bruce, Briceno, and Valdez
testified that they spent the evening with defendant and Murphy, although their
accounts were somewhat inconsistent with Murphy’s testimony about their
activities that night.
Defendant’s trial testimony
Defendant
admitted he had five prior felony convictions, which were for domestic
violence, false imprisonment, criminal threat, and two counts of assault with
force likely to produce great bodily injury.
He went to prison in 2004.
Defendant admitted he hit K.L. in the face more than once, but claimed
he did so because she cut him with a knife.
Defendant complained that he was the only person who went to jail even
though K.L. was also fighting.
Defendant
testified he had been in a dating relationship with P.A., but he only stayed at
her apartment a couple of times, and he did not have a key. Defendant and P.A.’s former husband were good
friends, and he was upset when defendant started to date P.A. P.A. allowed defendant to use her van. Defendant ended their relationship in
mid-August 2008, and she was unhappy about it.
Defendant testified that P.A. was an alcoholic. She regularly threatened to do something to
cause a violation of his parole.
Defendant
testified that he did not assault P.A.
On August 17, 2008, he was with his grandparents in Hanford; he was not
in Merced. P.A. called him for help, but
he did not have a key to unlock her apartment.
Defendant testified he never went to her apartment, and they did not
have an altercation that day.
Defendant
testified that on September 11, 2008, he briefly saw P.A. in the
mid-afternoon. He borrowed her van with
permission. He spent the rest of the day
with Murphy and his friends. He was
pulled over by the police for driving with expired tags. The police searched the car, and he was not
arrested. He took Murphy home around
3:00 a.m., returned the van to P.A., and left with a friend. Defendant was impeached with inconsistencies
between his testimony and the accounts of Murphy and Bruce about their
activities.
Defendant
testified he lost his cell phone on September 7, 2008, while he was at a car
show. The next day, he bought a cell
phone with a different number. He denied
sending any of the threatening text messages to P.A., including those received
by P.A. before he lost his cell phone.
Defendant
claimed P.A. lied about everything because she had mental issues, and P.A.
likely coerced her daughter so she would also make accusations against him.
Rebuttal evidence
Officer
Santos testified that he obtained P.A.’s cell phone on September 12, 2008. It contained a contact for “Deon” with a
particular phone number. The next day,
he called that number and asked for Dion.
A man answered and said “yeah.”
Santos asked if he was speaking with “Shannon Dion,” and the man hung
up. Santos called again and reached
voice mail. He left a message
identifying himself as a police officer and asked for a return call. No one ever called back.
I. The court properly
admitted K.L.’s testimony
Defendant
contends the trial court violated his due process rights when it permitted K.L.
to testify that he committed prior acts of domestic violence against her, and
then instructed the jury that it could consider her testimony as disposition
evidence.
During
pretrial motions, defense counsel
objected to the prosecution’s intent to call K.L. to testify about defendant’s
prior acts of domestic violence. Counsel
argued such disposition evidence was irrelevant and highly prejudicial. The prosecutor replied that Evidence Code
section 1109 specifically provided for the admission of disposition evidence in
domestic violence cases. The court
deferred ruling on the matter until later in the trial.
During the
course of trial, the court addressed the admissibility of K.L.’s
testimony. Defense counsel argued the
details of the prior incident were prejudicial and read a lengthy account from
the probation report about defendant’s assault on K.L., as an offer of proof of
her proposed testimony for the prosecution.
According to the report, defendant
told K.L. he would beat her until she was dead, and he would leave her in the
mountains where no one would find her.
Defendant repeatedly hit her with a belt. He decided that she wasn’t being hurt enough,
and removed her clothing and directly hit her body with the belt several
times. He repeatedly slapped both sides
of her face and said he was going to make sure her left side matched her right
side. He found some Q-Tips, pushed one
in her ear, and said he was going to shove it in.
Also according to the probation
report, K.L. stated that defendant stopped pushing the Q-Tip when he saw blood
coming out of her ear. Defendant
obtained a bottle of stain cleaner, and sprayed it over K.L.’s body and hair to
get rid of the blood stains. He cut the
bloody pieces of her hair with scissors, and threatened to shave her head. He started to shave her head, and then told
her to get into the shower and wash off the blood. Defendant poured bleach in the shower and
told K.L. to stand in it. K.L. got out
of the shower, dressed, and tried to get out of the apartment. Defendant grabbed the back of her head and
slammed her into a wall. K.L. said
defendant beat her worse than before. He
found some fireworks in the apartment, and said he was going to place them in
her and light them when she was asleep.
Defendant then grabbed a pair of pliers and threatened to pull out
K.L.’s teeth. K.L. begged him to stop
and he did. He went to bed and said,
“ ‘You think this is over but it’s not,’ ” and said it could last for
days. After he fell asleep, K.L. escaped
from the apartment and asked a neighbor for help.
After
defense counsel read the probation report’s account, the prosecutor clarified that
he was not going to introduce the entirety of the evidence about defendant’s
assault on K.L. Instead, he only
intended to ask K.L. general questions about her relationship with defendant,
which only required yes or no answers as to whether he committed any acts of
violence against her, hit her, and threatened her. Defense counsel replied that such evidence
would not be unduly inflammatory, and he would allow the prosecutor to lead
K.L.’s testimony to ensure that she would not discuss the more prejudicial
acts. The prosecutor agreed that he
would not ask any questions about the Q-Tips, the fireworks, the belt, and
pouring bleach on the victim.
The court
asked defense counsel if he was still raising an objection pursuant to Evidence
Code section 352. Defense counsel
withdrew his objections based on the prosecutor’s stated intent to limit the
evidence.
As set
forth ante, K.L. simply testified
that she dated defendant in 2004; that defendant physically assaulted her; that
he hit her more than once; that he hit her in the face with his hands; that he
threatened her; and that he told her, “ ‘You think this is over but it’s
not.’ ” K.L. sought medical
attention because of the attack. The
prosecutor asked leading questions, defense counsel did not object, and defense
counsel did not cross-examine K.L.
Also as set
forth ante, defendant testified at
trial and admitted he hit K.L. However,
he insisted that the incident occurred because K.L. cut him with a knife, and
he hit her in the face as a reaction.
After
defendant testified, the prosecutor argued defendant’s self-defense claim had
opened the door to introduce the rest of the details about his assault on
K.L. Defense counsel vigorously objected
and again argued the details were unduly prejudicial.
After the
parties argued the matter, the prosecutor decided to withdraw his request to
introduce the details about defendant’s assault on K.L., “[i]n order to
expedite the matter.” The prosecutor was
satisfied with the extent of K.L.’s previous testimony. K.L. was not recalled and no further evidence
about defendant’s assault on K.L. was introduced.
During the
instructional phase, the court gave the jury CALCRIM No. 852 as to the
consideration of K.L.’s testimony: “The
People presented evidence that the defendant committed domestic violence that
was not charged in this case specifically the 2004 incident involving
[K.L.].” The court defined the terms
domestic violence, abuse, and cohabitants, and further instructed:
“You
may consider this evidence only if the People have proved by a preponderance of
the evidence that the defendant in fact committed the uncharged domestic
violence. Proof by a preponderance of
the evidence is a different burden of proof from proof beyond a reasonable
doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely than not
that the fact is true.
“If the
People have not met this burden of proof, you must disregard this evidence
entirely.
“If you
decide that the defendant committed the uncharged domestic violence, you may,
but are not required to, conclude from the evidence that the defendant was
disposed or inclined to commit domestic violence and, based on the decision,
also conclude that the defendant likely to commit and did commit Counts 1-4, as
charged here. If you conclude that the
defendant committed the uncharged domestic violence, that conclusion is only
one factor to consider along with all the other evidence. It is not sufficient by itself to prove that
the defendant is guilty of Counts 1-4 as charged here. The People must still prove each charge and
allegation beyond a reasonable doubt.”
Defendant
contends the court committed federal constitutional error by admitting K.L.’s
testimony because it constituted unlawful character evidence, and CALCRIM No.
852 erroneously instructed the jury that it “may” conclude that he was disposed
to commit domestic violence. Defendant
further argues defense counsel was prejudicially ineffective for failing to
raise these objections. Defendant
concedes numerous courts have rejected similar challenges to Evidence Code
section 1109, but he raises the issue to preserve it for possible federal
habeas review.
Evidence
Code section 1109, subdivision (a)(1) provides in relevant part that, in
certain exceptions not applicable to this case:
“[I]n a criminal action in
which the defendant is accused of an offense involving domestic violence,
evidence of the defendant’s commission of other domestic violence is not made
inadmissible by [Evidence Code] Section 1101 if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.”
“Domestic
violence is but one of the areas in which the rules of evidence have been
relaxed in recent years. [Evidence Code]
Section 1109, subdivisions (a)(2) and (a)(3) allow admission of prior incidents
of elder abuse and child abuse when the defendant is currently charged with a
like offense, and [Evidence Code] section 1108
past commission of sexual offenses when the defendant is being tried for a
sexual offense. [¶] These statutes are remarkable not because
they allow testimony about prior misconduct, but because they allow the jury to
draw propensity inferences from the prior acts.
[Citation.]” (
520, 528-529.)
Code] Section 1108 is modeled on rules 413 through 415 of the Federal Rules of
Evidence, which were enacted in
1994. [Citations.] Rule 413, subdivision (a) provides that in a
criminal case in which the defendant is accused of an offense of sexual
assault, ‘evidence of the defendant’s commission of another offense or offenses
of sexual assault is admissible and may be considered for its bearing on any
matter to which it is relevant.’ Rule
414 applies the same rule of admissibility to criminal child molestation
cases. Rule 415 allows plaintiffs to
proffer such evidence in civil cases involving sexual assault or child
molestation.” (People v. Soto (1998) 64 Cal.App.4th 966, 980.)
As noted by
the People, and conceded to by defendant, the admissibility of propensity
evidence pursuant to Evidence Code sections 1108 and 1109 has repeatedly been
found constitutional and not in violation of due process. (See e.g., People v. Falsetta (1999) 21 Cal.4th 903, 912-922;
695, 704; People v. Flores (2009) 176
Cal.App.4th 1171, 1180-1181; see also Schroeder
v. Tilton (9th Cir. 2007) 493 F.3d 1083, 1088 [admission of propensity
evidence pursuant to Evidence Code section 1108 did not violate prohibition
against ex post facto laws].)
Defendant’s
constitutional challenge to Evidence Code section 1109 is based on
was decided “before enactment of the federal rules allowing evidence of
uncharged sexual assaults and child molestation and the enactment of section
1108 .…” (Holford, supra, 203
Cal.App.4th at p. 183, fn. 19.) “The
application of McKinney’s holding in the context of [Evidence Code]
section 1108 evidence has been repeatedly rejected. [Citations.]
The Ninth Circuit and other federal courts have long since upheld the
constitutionality of the federal rules allowing sexual misconduct evidence to establish
propensity to commit such crimes.
[Citations.]” (
Similarly,
defendant’s challenges to CALCRIM No. 852 and its predecessor instructions have
also been rejected. (See
731, 738-740.)
While
defendant has not challenged K.L.’s actual trial testimony, we note that
testimony was admissible as propensity evidence in this domestic violence case
pursuant to Evidence Code section 1109, and it was not prejudicial pursuant to
Evidence Code section 352. Given the
prosecutor’s agreement to limit K.L.’s testimony, and the withdrawal of his
subsequent motion to reopen, the jury heard extremely limited propensity
evidence that defendant had previously hit and threatened K.L. Such limited testimony was no more
prejudicial or inflammatory than the charged offenses and P.A.’s testimony
about defendant’s two assaults upon her.
(See, e.g., People v. Jones
(2012) 54 Cal.4th 1, 50-51.)
We thus
reject defendant’s constitutional challenges and similarly find that defense
counsel was not prejudicially ineffective for failing to raise these issues during
trial.
II. The court properly rejected
defendant’s request to dismiss his prior strike convictions
Defendant
contends the court abused its discretion when it declined to dismiss his three
prior strike convictions and instead imposed an aggregate third strike term of
50 years to life.
prior strike convictions
As to all
counts, the information alleged that defendant had three prior strike
convictions, all of which were from the K.L. case in October 2004: two convictions for assault with force likely
to produce great bodily injury (§ 245, subd. (a)(1)) and one conviction
for criminal threats (§ 422). He
also served a prior prison term, again based on the same case.
During the
course of trial, defendant admitted the prior conviction allegations.
After he
was convicted, defendant filed a request for the court to dismiss the 2004
prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (
Defendant argued his record did not show a lengthy record of criminal
activity, he engaged in a brief period of criminal activity involving the
assault on K.L., and his current offenses did not involve the infliction of
permanent injury.
probation report
According
to the probation report, defendant had a prior conviction in December 1994 for
two misdemeanors: possession of less
than one ounce of marijuana (Health & Saf. Code, § 11357, subd. (b))
and failing to appear (§ 853.7). He
was placed on probation.
In August
1995, he was convicted of misdemeanor battery (§ 242) and granted
diversion. In 1996, he failed diversion
and the charges were reinstated. He was
arrested on a bench warrant and placed on probation for three years in
1997. In 1998 and 1999, he violated
probation and probation was reinstated.
In January
1997, he was convicted of misdemeanor giving a false identification to a peace
officer (§ 148.9, subd. (b)) and sentenced to jail.
In April
1995, he was convicted of misdemeanor fighting in a public place (§ 415,
subd. (1)) and placed on probation for two years.
In November
2004, defendant was convicted of five felony offenses arising from the assault
on K.L., three of which were alleged as strikes in this case: two counts of assault by means of force
likely to produce great bodily injury (§ 245, subd. (a)(1)); criminal
threats (§ 422); corporal injury on a cohabitant (§ 273.5, subd.
(a)); and false imprisonment (§ 236).
He was sentenced to five years four months in prison. In April 2007, he was released on parole, and
he was still on parole when he committed the offenses in this case.
According
to the probation report, defendant was 35 years old. He had obtained a certificate of completion
from the San Francisco Culinary School.
He was last employed by a construction company in Tulare in 2008. Defendant said that he drank beer, but he did
not use drugs.
The
probation report recommended two consecutive third strike terms of 25 years to
life for both counts II and IV.
sentencing hearing
At the
sentencing hearing, the court reviewed the probation report and acknowledged
defendant’s Romero request and his
argument that he had engaged in a relatively brief period of criminal
activity. The prosecutor replied that
defendant’s prior history and the facts of this case “pretty much speaks for
itself” and there was no basis to dismiss the prior strike convictions. As to defendant’s prior assault on K.L., the
prosecutor clarified that defendant was convicted of two counts of assault with
a deadly weapon for, respectively, using fireworks and pliers.
The court
rejected defendant’s request to dismiss the prior strike convictions, and found
he came within “the spirit and letter of the Three Strikes Statute.” The court noted defendant’s prior strikes
were based on the assault on K.L. The
court reviewed the report about that assault, and found that it was “fair to
say she was brutalized in the circumstances of her ordeal when she was at the
hand of [defendant].” The court noted
that defendant was not convicted based on a single assault on K.L., but a
series of assaults and attacks committed during a long ordeal. The court found his prior abuse of K.L. was
violent and life-threatening.
The court also found the current
offenses involved the same type of crimes committed against a cohabitant. “The repetition of criminal activity suggests
that he did not learn from his prior experience with the criminal justice
system.” The court concluded that
defendant’s Romero request should be
denied because “the current offense is of the same type of crime that the
defendant committed in the past.” The
court imposed consecutive third strike terms of 25 years to life for both
counts II and IV, a concurrent third strike term for count III, and one year
for the prior prison term enhancement.
A trial
court’s refusal to dismiss a prior strike conviction under section 1385 is
subject to review under the deferential abuse of discretion standard. (People
v. Carmony (2004) 33 Cal.4th 367, 374, 375 (Carmony).) “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
to achieve the 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.)
“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 … 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 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.’ [Citation.]”
(Carmony, supra, 33 Cal.4th at p. 377.)
“
the three strikes law not only establishes a sentencing norm, it carefully
circumscribes the trial court’s power to depart from this norm and requires the
court to explicitly justify its decision to do so. In doing so, the law creates a strong
presumption that any sentence that conforms to these sentencing norms is both
rational and proper.
“In light of this presumption,
a trial court will only abuse its discretion in failing to strike a prior
felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs
where the trial court was not ‘aware of its discretion’ to dismiss [citation],
or where the court considered impermissible factors in declining to dismiss
[citation]. Moreover, ‘the sentencing
norms [established by the Three Strikes law may, as a matter of law,] produce [
] an “arbitrary, capricious or patently absurd” result’ under the specific
facts of a particular case. [Citation.]
“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 case—where the relevant factors described in
148 … manifestly support the striking of a prior conviction and no reasonable
minds could differ—the failure to strike would constitute an abuse of
discretion.” (Carmony, supra, 33
Cal.4th at p. 378.)
As in Carmony, this case “is far from extraordinary.” (Carmony,
supra, 33 Cal.4th at p. 378.) The trial court herein balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the
law. (Ibid.) Based on defendant’s
criminal record, the brutality of his assaults upon K.L. and P.A., and his
failed performance on parole, the court reasonably concluded it should not
grant the Romero motion. Once a
career criminal commits the requisite number of strikes, the circumstance must
be “extraordinary” before he can be deemed to fall outside the spirit of the
Three Strikes law. (Id. at pp. 377-378.)
Defendant has failed to show the court abused its discretion in denying
the Romero motion. (Id. at p. 377; People v. Superior
Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Defendant contends the court abused
its discretion because it solely focused on his prior strike convictions and
the current offenses, while ignoring other possible mitigating
circumstances. A similar argument was
rejected in People v. Myers (1999) 69
Cal.App.4th 305, 310, which noted that the trial court in that case had read
and considered defendant’s motion, which raised certain mitigating
circumstances, but still decided to deny his request to dismiss the prior
strikes:
“The court is presumed to have considered all of the
relevant factors in the absence of an affirmative record to the contrary. [Citation.]
Thus, the fact that the court focused its explanatory comments on the
violence and potential violence of appellant’s crimes does not mean that it
considered only that factor.
Accordingly, appellant has not demonstrated that the trial court abused
its discretion in denying his motion to strike prior convictions.” (Id.
at p. 310.)
In this case, as in Myers,
the court stated that it had reviewed defendant’s request to dismiss the prior
strikes, made extensive findings, and denied that request.
Defendant also complains that a
life sentence was not appropriate in this case because his current offenses and
prior strike convictions were for domestic violence. As noted by the People, defendant “is not
subject to a life sentence merely on the basis of his current offense but on
the basis of his recidivist behavior.
Recidivism in the commission of multiple felonies poses a manifest
danger to society justifying the imposition of longer sentences for subsequent
offenses. [Citation.]” (People
v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) Moreover, felony offenses arising from
domestic violence constitute strikes if those felonies are serious or violent,
and may trigger a third strike term under the circumstances. (See, e.g., People v. Laino (2004) 32 Cal.4th 878, 895-898.)
Defendant further argues the court
failed to consider that he was only 35 years old at the time of sentencing,
with a potential life expectancy of only 60 to 63 years, and that his third
strike term is the functional equivalent of life without parole. Again, as noted by the People, a similar
argument was rejected in People v. Strong
(2001) 87 Cal.App.4th 328, 345, where the court held that “middle age, considered
alone, does not remove a defendant from the spirit of the Three Strikes
law. Otherwise, those criminals with the
longest criminal records over the longest period of time would have a built-in
argument that the very factor that takes them within the spirit of the Three
Strikes law – a lengthy criminal career – has the inevitable consequence –
middle age – that takes them outside the law’s spirit.” Strong
further held that “reliance on a statistical assumption would appear to clash
with the obligation in Williams to review the defendant’s individual
circumstances for purposes of determining whether he is one of the exceptions
who should be deemed outside the spirit of the law.” (Ibid.)
Finally, we reject defendant’s
alternate argument that his defense counsel was prejudicially ineffective for
not raising these specific issues to the court at the sentencing hearing. The court did not abuse its discretion when
it denied his request to dismiss his prior strike convictions, and defense
counsel’s failure to raise specific arguments was not prejudicial given the
entirety of the record.
The
judgment is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Poochigian, J. and Franson, J.
Penal Code unless otherwise indicated.
