P. v. Haynie



















Filed 1/10/13 P.
v. Haynie CA2/5

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION FIVE




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THE PEOPLE, Plaintiff and Respondent, v. MARVIN HAYNIE, Defendant and Appellant.

B237872 (Los Angeles County Super. Ct. No. KA093549)

APPEAL
from a judgment of the Superior Court of the County of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles,
Mike Camacho, Judge. Affirmed.

Adrian
K. Panton, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney
General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant and appellant Marvin Haynie> (defendant) was convicted of href="http://www.mcmillanlaw.com/">first degree burglary with a person present
(Pen. Code, § 459href="#_ftn1" name="_ftnref1"
title="">[1]). On appeal, defendant contends that the trial
court erred in denying his motion to strike his prior conviction pursuant to >People v. Superior Court (>Romero) (1996) 13 Cal.4th 497 (>Romero motion). We affirm.



BACKGROUNDhref="#_ftn2"
name="_ftnref2" title="">[2]

Defendant
entered a garage attached to Elizabeth Garcia’s residence while Garcia’s two
sons where home, broke into Garcia’s vehicle, and stole papers from inside the
vehicle’s glove compartment. One of
Garcia’s sons went into the garage when defendant was exiting it.

The District
Attorney of Los Angeles County filed an amended information charging defendant
with one count of first degree burglary with a person present in violation of
section 459. The District Attorney
alleged that the offense was a violent and serious felony within the meaning of
sections 667.5, subdivision (c), and 1192.7, subdivision (c), respectively. The District Attorney alleged that defendant
suffered a prior conviction—in 2002—for violation of section 211, robbery,
which qualified as a serious or violent felony pursuant to sections 1170.12,
subdivisions (a) through (d), and 667, subdivisions (b) through (i); suffered a
prior conviction—the same 2002 robbery conviction—which qualified as a serious
felony pursuant to section 667, subdivisions (a)(1); and had a prior prison
term as defined by section 667.5, subdivision (b)—a 2008 conviction for
violating section 459, second degree burglary with a person present in
violation of section 459.

Defendant
represented himself. Following a trial,
the jury found defendant guilty as charged, and defendant admitted the special
allegations.

The trial court
denied defendant’s Romero motion to
strike his prior “strike” conviction.
The trial court sentenced defendant to href="http://www.fearnotlaw.com/">state prison for a term of 13 years,
consisting of a middle term of 4 years on the count for first degree burglary
with a person present, which was doubled pursuant to sections 1170.12,
subdivisions (a) through (d) and 667, subdivisions (a)(1), and 5 years pursuant
to section 667, subdivisions (a)(1). The
trial court struck the one-year enhancement for defendant having a prior prison
term pursuant to section 667.5, subdivision (b).



DISCUSSION

Defendant
contends that the trial court abused its discretion in denying his motion to
strike his prior robbery conviction because the trial court “failed to consider
[his] drug problem and the absence of violence, excepting the prior robbery
conviction . . . .” The trial court acted within its discretion.



1. Standard of Review

We
review a trial court’s denial of a motion to strike a prior strike conviction
for an abuse of discretion. (>People v. Carmony (2004) 33 Cal.4th 367,
373, 375.) There is a “strong
presumption” that a “trial judge properly exercised his discretion in refusing
to strike a prior conviction allegation.”
(In re Large (2007) 41 Cal.4th
538, 551.) “[A] trial court will only
abuse its discretion in failing to strike a prior felony conviction allegation
in limited circumstances.” (>People v. Carmony, supra, 33 Cal.4th at p. 378.)
“‘[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].” (>Ibid.)
Accordingly, the defendant bears the burden to establish that the trial
court’s decision was “so irrational or arbitrary that no reasonable person
could agree with it.” (>Id. at p. 377.)

2. Applicable Law

Pursuant
to section 1385, subdivision (a), a trial court has limited discretion to
strike one or more prior strike convictions.href="#_ftn3" name="_ftnref3" title="">[3] (People
v. Williams (1998) 17 Cal.4th 148, 151-152 (Williams); see also Romero,
supra, 13 Cal.4th at pp.
529-530.) “A defendant has no right to
make a motion, and the trial court has no obligation to make a ruling, under
section 1385. But [a defendant] does have
the right to ‘invite the court to exercise its power by an application to
strike a count or allegation of an accusatory pleading, and the court must
consider evidence offered by the defendant in support of his assertion that the
dismissal would be in furtherance of justice.’
[Citation.]” (>People v. Carmony, supra, 33 Cal.4th at p. 375.)

As
our Supreme Court explained in People v.
Carmony, supra, 33 Cal.4th 367,
the Three Strikes law “‘was intended to restrict courts’ discretion in
sentencing repeat offenders.’
[Citation.] To achieve this end,
‘the Three Strikes law does not offer a discretionary sentencing
choice, . . . but 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.]” (>Id. at p. 377.) “Thus, 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.” (Id.
at p. 378; accord, In re Large, >supra, 41 Cal.4th at pp. 550-551.)

“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 Penal Code 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 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.’ (>Williams, supra, 17 Cal.4th at p. 161.)”
(People v. Carmony, >supra, 33 Cal.4th at p. 377.)



3.> Background
Facts

Following the trial
pursuant to which the jury found defendant guilty as charged, the prosecutor
filed a sentencing memoranda and opposition to defendant’s anticipated >Romero motion, discussing defendant’s
prior criminal history and requesting that defendant be sentenced to 18 years
in state prison. Thereafter, defendant,
appearing in propria persona, simultaneously filed a request for the trial
court to strike the prior robbery conviction which had been charged as a
special allegation under the provisions of sections 1170.12, subdivisions (a)
through (d), and 667, subdivisions (b) through (i), a reply to the prosecutor’s
opposition to defendant’s anticipated Romero
motion, and a “motion for factors of mitigation.” The parties treat each of those filings as
being in support of defendant’s request to strike the prior “strike”
conviction, and the trial court reviewed
them.

Defendant declared
in support of his request for the trial court to strike his prior robbery
conviction that regarding the underlying burglary crime for which he was
convicted in this case, “my actions were not violent, nor serious. I didn’t threaten or try to hurt anybody, or
even place anybody in any danger. In my
opinion I got found guilty for a misunderstanding . . . . [And] I was a little
intoxicated . . . .”
Defendant stated in pleadings that that his criminal history consists of
two felonies, one of which—the prior robbery conviction which he seeks to
strike—“being of a serious/or violent nature” and that conviction occurred
almost 10 years ago when defendant was 18 years old. Defendant stated that since his prior robbery
conviction 10 years ago, he does not have a record of a serious or violent
criminal conviction.

Defendant stated in
his pleadings, “If I can go back in time and change some of my choices I would,
and one of those choices would be I wouldn’t do drugs! Since I was ‘15 years old’ I’ve suffered from
the disease of addiction. That addiction
played a major factor in the decisions I’ve made in life. Drugs have ruined my life and deprived me of
my freedom and family. It’s taking a lot
for me to sit here and write this and actually admit I have a drug problem and
I need help! . . . Prison only puts your drug
problem on the back burner, you still have to deal with it once released from
prison. Prison does not provide a steady
program for which I need. I want to
better myself and cure this disease which is addiction. So I’m asking the court for help.”

The trial court
denied defendant’s Romero motion,
stating, “[T]he court does acknowledge, at least to some degree, that
[defendant’s] crime did not result in either victim injury or property damage
or any financial loss whatsoever. But
[defendant’s] conviction is a violent
felony under the law. [¶] And,
additionally, [defendant’s] prior felony criminal history is theft
related. First, [defendant was]
convicted of an armed robbery in 2002.
[Defendant] received a five-year
sentence as a result. Second, [defendant
was] convicted of a commercial burglary in 2008 for which [he] received a
32-month commitment. While on parole,
[defendant] committed the present offense, which is also a residential
burglary. [¶] There are
absolutely no signs of any effort on [defendant’s] part to rehabilitate
[himself], but there are certainly multiple signs of continuous recidivism,
especially theft-related conduct.
[¶] [Defendant does not] have a
basis for me to strike [his] convictions under Romero. [Defendant] fall[s]
well within the strike law. As a matter
of fact, the strike law was created for individuals like [defendant] who just
don’t get the message that repeated criminal
conduct will not be tolerated. So
the Romero motion is denied, and we
will proceed to sentencing.”

In sentencing
defendant, the trial court stated that defendant’s criminal record was
“atrocious.” Defendant objected to his
sentence and requested that he be sentenced “as leniently as possible,”
stating, “[A]s far as to call my criminal record atrocious, I would disagree
with that. I have on my record two
felonies. I’m 28 years old. My last serious violent felony was ten years
ago. I haven’t since then attempted to
commit a serious or violent felony. [¶] And my second felony consists of me going
with my girlfriend at the time to a mall and her stealing something. It was commercial burglary.”



4. Analysis

The record
establishes that the trial court considered defendant’s “drug problem” and his
criminal history involving crimes of violence.
The trial court reviewed defendant’s pleadings in support of his >Romero motion and they set forth those
factors defendant believed justified the trial court to exercise its discretion
to strike his prior strike conviction.

In addition,
defendant admitted that he was convicted in 2002 for violation of section 211,
robbery, and it qualified as a serious or violent felony pursuant to sections
1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through
(i). The nature and timing of
defendant’s convictions for prior crimes was alleged in the information; it was
set forth in the prosecutor’s sentencing memorandum; and it was included in the
probation officer’s report (which was cited in the sentencing memorandum). In the absence of an affirmative showing to
the contrary, we presume the trial court considered the nature and timing of
defendant’s prior convictions. (>People v. Carmony, supra, 33 Cal.4th 367, 378.)

Although
the
trial court recognized that “at least to some
degree, . . . [defendant’s most recent] crime did not result in
either victim injury or property damage or any financial loss,” there nonetheless
is a danger of violence and physical harm when
residential burglary occurs. “Burglary of an
inhabited dwelling . . . poses a risk to human life. As the court explained in >People v. Lewis (1969) 274 Cal.App.2d
912, 920 [79 Cal.Rptr. 650] [superseded by statute on other grounds as stated
in People v. Hernandez (1992) 9
Cal.App.4th 438, 441]: ‘Burglary laws are based primarily upon a recognition of
the dangers to personal safety created by the usual burglary situation—the
danger that the intruder will harm the occupants in attempting to perpetrate
the intended crime or to escape and the danger that the occupants will in anger
or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed . . . to
forestall the germination of a situation dangerous to personal safety[.]’ Our Supreme Court has characterized first
degree burglary as ‘nonviolent criminal conduct which is, nevertheless, so
dangerous’ as to call for enhanced punishment.
(People v. Jackson (1985) 37
Cal.3d 826, 832 [210 Cal.Rptr. 623, 694 P.2d 736].)” (People
v. Estrada (1997) 57 Cal.App.4th 1270, 1281.)

To
the extent that defendant’s argument may be construed as asserting that the
trial court was obligated to give a statement of reasons for denying defendant’s
Romero motion, defendant is
mistaken. Although a trial court must
enter such a statement in the minutes of the court when dismissing a prior
conviction, it is not required to “‘explain its decision not to exercise its
power to dismiss or strike.’” (>People v. Carmony, supra, 33 Cal.4th at p. 376.)

We
therefore hold that defendant was within the spirit of the three strikes law
(see People v. Williams, >supra, 17 Cal.4th at p. 161), the trial
court did not rule in an “arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice” (see People v. Jordan (1986) 42 Cal.3d 308, 316), and there was no abuse
of discretion (see Romero, >supra, 13 Cal.4th at p. 504).






DISPOSITION

The judgment is
affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.







MOSK,
J.





We concur:







TURNER, P. J.







KRIEGLER, J.