P. v. Maxon
Filed 1/23/14 P. v. Maxon
CA6
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
KENT LEE MAXON,
Defendant and Appellant.
H039199
(Santa
Clara County
Super. Ct. No.
C1081500)
I. Introduction
Defendant
Kent Lee Maxon pleaded guilty to two counts of robbery. (Pen. Code, §§ 211, 212.5, subd. (b).
He admitted allegations that he personally
used a deadly weapon (§ 12022, subd. (b)(1)) in the commission of both offenses
and had suffered a prior conviction for robbery, which qualified as a serious
felony and a strike (§§ 667, subds. (a), (b)-(i), 1170.12). After the trial court denied defendant’s
motion to dismiss the strike allegation pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero), it sentenced defendant
to a 12-year prison term.
On
appeal, defendant contends the trial court
abused its discretion by denying his Romero
motion. For the reasons stated below, we
will affirm the judgment.
II. Background
A. The Current
Offenses
On
June 19, 2010, defendant went to Bank of the West in San Jose. He entered through the front doors wearing
bicycling gear. He approached Katherine
Tran, a bank teller, and handed her a note, which stated, “ ‘This is a Robbery
. . . here’s my gun – look up . . . money from both tills out and on counter .
. . no ink bombs – I’ll just throw them at you.’ †As Tran began to remove money from the top drawer,
defendant told her “ ‘Bottom drawer.’ †Defendant showed Tran a gun inside a fanny
pack. Tran, who was “shocked and nervousâ€
but did not “fear for her life,†believed the gun was a semiautomatic. She gave defendant money, which he placed in
his fanny pack. Defendant then left the
bank. The bank later determined that the
till was short $2,650.
On
June 22, 2010, defendant went to Comerica Bank in Saratoga. He rode there on a mountain bike. He approached the teller window where Maly
Nuon was working, and he gave Nuon a note, which read, “ ‘ This is a robbery,
give me all your money.’ †The note
may also have mentioned a gun. Nuon
began putting money into an envelope, which defendant took and left. Nuon believed defendant had a gun in his
fanny pack. She was “extremely scared.â€
Defendant
was identified from fingerprints on the demand note that he left during the
Bank of the West robbery. On July 1, 2010, defendant was arrested at his residence in Santa Cruz. Defendant admitted he had committed the two robberies,
saying “that the only reason he wanted to come clean was so the Officer could
tell the women (tellers) that it was not a real gun and that it was a toy
gun. It was important to him that they
knew he would never have hurt them.†Defendant
cried when talking about the tellers and wrote them apology letters.
Defendant
described how he had committed the Comerica Bank robbery. He drove to Saratoga with his
bicycle in the trunk and parked some distance from the bank. He rode to the bank and rode back to his car
afterwards, then put his bicycle back into the trunk and drove away. He disposed of the money in the ocean because
the teller had put a dye pack in the envelope.
Defendant
admitted he had a pellet gun when he committed the Bank of the West robbery,
but he claimed he did not have the gun during the Comerica Bank robbery.
Defendant
explained his motivation for committing the robberies. He needed money for house payments and
household bills. He confessed to
committing two more bank robberies in Santa Cruz. At the time of sentencing, defendant was
facing two robbery charges in Santa Cruz County.
B. The Prior
Offense
In
1993, defendant committed a bank robbery with his brother. He was 27 years old at the time. His brother had significant gambling debts
and was suicidal. “To help his brother
and to keep his brother from committing suicide, they robbed Bank of America in
Santa Cruz with a sawed off shot gun,†which had no ammunition. They took $38,000 from the bank and were
immediately apprehended, so the money was returned to the bank.
Defendant
was convicted of possessing a dangerous weapon (former § 12020) and robbery (§
211), with an allegation that he had been armed with a firearm (§ 12022,
subd. (a)(1).) He served one year
in county jail and then successfully completed probation.
C. Plea
Proceedings
On
March 15, 2011, defendant pleaded guilty to both robbery charges. He also admitted both allegations of deadly
weapon use (§ 12022, subd. (b)(1)), as well as the allegations that he had
suffered a prior robbery conviction that qualified as a serious felony and a
strike (§§ 667, subds. (a), (b)-(i), 1170.12).
During
the plea proceedings, the parties agreed that defendant faced a maximum prison
term of 19 years, and, if a
was granted, a minimum prison term of eight years.
D. Probation
Report
Defendant
was 45 years old in May of 2011 when he was interviewed by the probation
officer.
Defendant
began using cocaine in 1983, when he was a senior in high school. His drug use “got worse in 2010, after his
wife left him.†At that point, he used
cocaine five to six times per day, spending about $150 per week on the
drug. Defendant also began using
marijuana in 1983, and his use of that drug became more frequent after his wife
left him: he began smoking it on a daily
basis. Likewise, his consumption of
alcohol increased to the point where he was “tipsy on a daily basis.†Defendant had not previously participated in
but he was doing so while incarcerated in jail.
Defendant
had separated from his wife in February of 2010, and she was living in the
state of Washington with their two young
but his income had been significantly reduced due to the economy. He had attended three years of college.
Defendant
expressed remorse during his probation interview. He indicated that after he served his
sentence, he would live with his father in Castro
Valley, work as a painter or handyman, and
go back to school to learn about the solar industry.
E. The Romero
Motion and Opposition
In
his Romero motion, defendant
highlighted the following facts. His
only prior conviction was the prior robbery, which he had committed in 1992. He “committed no other law violations†until
18 years later, when he committed the present offenses. In the interim, he had married, become a
father, and started a business. However,
after his business had failed due to the economy and his wife and children had
left him, his substance abuse had “spiral[ed] out of control.â€
Concerning
the current offenses, defendant emphasized that he immediately confessed and
that – at least in one of the robberies – he had not been armed with an “actual
weapon.†In addition, his crimes had
been “committed quietly and calmly†and thus “were not violent.â€
The
prosecution filed an opposition to defendant’s Romero motion, arguing that striking the prior conviction would be
an abuse of discretion. The prosecution
argued that “[r]obbery is a serious and violent felony†and pointed out that
the two tellers had been fearful during the robberies. The prosecution argued that even if, as
defendant claimed, he was not actually armed with a weapon during both
robberies, he did “threaten the use of violence†in both crimes. The prosecution further noted that the two
robberies occurred close together in time to one another, and close in time to
two other robberies that defendant committed.
Concerning
the prior offense, the prosecution noted that it had occurred when defendant
was 27 years old and thus defendant did not have “the excuse of youthful poor
decision making.â€
Regarding
defendant’s background, character, and prospects, the prosecution claimed that defendant
had not been “a law-abiding, gainfully employed citizen†during the 18 years
between his offenses, in that he had borrowed a large sum of money from his wife’s
family without returning it. Finally, the
prosecution noted that although defendant had admitted his guilt in the present
case, he also had been caught quickly and had not turned himself in.
F. The Romero
Hearing/Sentencing
The
trial court heard defendant’s Romero
motion on August
8, 2011. At the beginning of the hearing, defendant
addressed the court to explain what happened with the loan from his
in-laws. The trial court then made its
findings.
The
trial court indicated it had “spent a lot of time†on the case, trying to “see
if there is something in the prospects that would tell me this could never –
financial difficulty would never trigger a similar response.†The court “couldn’t find that in this
case.†Instead, it found a defendant who
had been “taking the easy way out†whenever he “became in financial straits†by
robbing banks and “scar[ing] people half to death.†The court believed defendant would likely
“resort to illegal activity in order to gain money again†in the future. The trial court found that defendant fit the
profile of a typical bank robber, in that he had no other criminal history but
had repeatedly robbed banks. The court
did not see defendant “as much different†than other bank robbers.
The
trial court indicated that because defendant’s prospects were not good, “there
is no reason to grant the Romero.†The court further noted, “In fact, I think it
would be [an] abuse of discretion to do so.
But even if it wouldn’t, he loses on all three prongs of the traditional
Romero test.â€
The
trial court then addressed defendant’s addiction, noting that it “worsens his
prospects†because “people who have an addiction are more likely to
re-offend.â€
The
trial court also addressed the effect of defendant’s possible future crimes on
the victims. It noted that if he went on
“another string of bank robberies,†it could cause victims to suffer heart
attacks and have “nightmares of reliving these situations.â€
Regarding
the overall sentence, the trial court noted that it was not sentencing
defendant for the Santa Cruz crimes and that it was “not sure what [it] would have done†with
those charges. The court stated that
running all of the sentences consecutively might be “too much of a
penalty.†The court noted that the Santa Cruz court
might see “their cases differently and grant[] a Romero in those cases,†since there were “some positive things
about the defendant in his prospects prong.â€
Ultimately,
the trial court determined that there was not “enough to overcome the serious
and violent nature of the prior[] and these current cases and all the
negatives,†and it denied defendant’s Romero
motion. It imposed a 12-year prison
term, comprised as follows: the two-year
low term for count 1, doubled to four years because of the strike; a
consecutive one-year term for the deadly weapon use allegation associated with
count 1; a consecutive two-year term for count 2, calculated at one-third of
the midterm; and a consecutive five-year term for the prior serious felony
conviction (§ 667, subd. (a)). The court
stayed the punishment for the deadly weapon use allegation associated with
count 2 pursuant to section 1385.
III. Discussion
Defendant
contends the trial court abused its discretion by denying his
A. Applicable
Law
In
People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the California
Supreme Court set forth the basic principles applicable to a trial court’s
decision to strike a prior conviction. “
‘In Romero, we held that a trial court may strike or vacate an
allegation or finding under the Three Strikes law that a defendant has
previously been convicted of a serious and/or violent felony, on its own
motion, “in furtherance of justice†pursuant to . . . section
1385(a).’ [Citation.] We further held that ‘[a] court’s
discretionary decision to dismiss or to strike a sentencing allegation under
section 1385 is’ reviewable for abuse of discretion. [Citation.]†(Carmony, supra, 33 Cal.4th at p. 373.)
“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 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.†(Carmony,
supra, 33 Cal.4th at pp. 376–377.)
“ ‘[T]he Three Strikes law does not offer a discretionary sentencing
choice, as do other sentencing laws, 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.]†(Carmony, supra, 33 Cal.4th at p. 377.)
“ ‘[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 justiceâ€
pursuant to Penal Code 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.)
B. Contentions
Defendant
contends that the trial court made four errors in analyzing his
the gravity of the current crime[s],†by failing to acknowledge that they
involved a “considerable lack of planning.â€
Second, he claims the trial court “mischaracterized the current and past
strike offense as ‘violent’ †since none of the crimes involved any “ ‘actual
violence.’ †Third, he claims the
trial court wrongly observed that “ ‘it would be an abuse of discretion’ â€
to grant Romero relief. Finally, he contends the trial court failed
to consider several favorable factors relating to his background, character,
and prospects, as well as the actual sentence that would be imposed if the
The
Attorney General contends the trial court “carefully considered†all pertinent
factors and did not abuse its discretion in denying the Romero motion.
C. Analysis
Taking
defendant’s contentions in turn, we first disagree that his current offenses
were not as serious as the trial court found.
According to defendant, the robberies were “unsophisticated and unplanned.†The record does not support this claim. Defendant obviously planned both robberies: he had prepared notes for the tellers, and he
had traveled to San Jose from Santa Cruz with his bicycle in his car, then rode the bicycle to and from the
banks to facilitate his escapes and avoid being caught. He was also a sophisticated bank robber, as
he knew that the teller could place “ ‘ink bombs’ †in the envelope
with the money. The fact that he used a
gun (even if it was, as he claimed, only a pellet gun) during at least one of
the robberies further supported a finding that the current offenses were serious,
such that defendant did not fall outside the spirit of the Three Strikes
law. (See Carmony, supra, 33 Cal.4th at p. 377.)
Defendant
also claims that his current offenses were less serious because they were committed
18 years after the prior offense and they were “situational,†in that they
occurred “when his life had spiraled out of control.†While somewhat remote, the fact that
defendant’s prior conviction was for the same crime as in the present case militates
against treating defendant as if the prior had not occurred. (See Carmony, supra, 33 Cal.4th at p.
377.) Likewise, although the current
offenses may have been spurred by defendant’s circumstances, the trial court
aptly recognized that defendant appears to resort to bank robberies whenever he
is “in financial straits†and that nothing in defendant’s history indicates he
would not do so if he found himself in a similar situation in the future.
Second,
we disagree that the trial court mischaracterized defendant’s current and prior
robbery offenses as violent. Not only is
robbery a “ ‘violent felony’ †pursuant to section 667.5, subdivision
(c)(9), but defendant’s characterization of his crimes as not involving any “acts
of violence†is misleading. Defendant
was armed with a firearm in the prior robbery and the Bank of the West robbery,
and he made reference to a gun in the Comerica Bank robbery. His actions at least implied a threat to use
a firearm, and while not actually leading to violence, cannot be characterized
as nonviolent in any way. (Cf. People
v. Garcia (1999) 20 Cal.4th 490, 503 [defendant’s five prior burglaries were
serious felonies but did not “include any actual violenceâ€].)
Third,
we disagree that the trial court erroneously found that it would have been an
abuse of discretion to grant Romero
relief in this case. Although the trial
court did make that remark, it also noted that there were “some positive
things†such that the Santa Cruz court might see things differently and grant a Romero motion in defendant’s other case. Contrary to defendant’s claim, this isolated
comment does not demonstrate that the trial court believed it “did not have an
option but to deny the requested relief.â€
The record demonstrates that the trial court considered the relevant
factors, then exercised its discretion in denying defendant’s motion.
Fourth,
we disagree that the trial court erred by failing to consider certain factors
concerning defendant’s background and character. According to defendant, the trial court should
have considered: (1) the fact that
defendant had no “early criminal history;†(2) the fact that defendant was
seeking treatment for his controlled substance addictions; (3) the fact that a
non-Three Strikes sentence would still be significant – according to defendant,
he still would have received a minimum of seven years; and (4) the fact that
his present offenses were all committed closely together during a difficult
time in his life.
The
trial court is presumed to have considered all of the relevant factors relating
to a Romero motion in the absence of
an affirmative record to the contrary. (
568, 582; see also People v. Myers
(1999) 69 Cal.App.4th 305, 310 [“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 factorâ€].)
Moreover, contrary to defendant’s claim, the record indicates that the
trial court did consider the length
of the term defendant would have received without the strike and the fact that
the present offenses were all committed during a short time period. During the plea proceedings, the trial court
specifically asked what defendant’s sentence would be “if the
to defendant’s current offenses as having occurred during a “spree.â€
Even
if the trial court should have expressly addressed the other two factors
defendant identifies – his lack of any early criminal history and his recent
efforts to control his substance abuse, neither factor weighed in favor of
of a juvenile record†is “a factor tending to show suitability for parole†(see
In re Bettencourt (2007) 156 Cal.App.4th 780, 803), he does not identify
any authority for the proposition that such a factor warrants granting
consists of multiple bank robberies, the trial court reasonably found that none
of defendant’s prior and present offenses were the result of youthful
indiscretion and thus that he did not fall outside the spirit of the Three
Strikes law. (See Carmony, supra, 33 Cal.4th at p. 377.) Likewise, although the record indicates that defendant
was seeking treatment for his substance abuse issues, the trial court was not
required to consider this fact favorably in determining whether to grant
criminality was directly related to his substance abuse, and it is significant
that until his current arrest, defendant had done “little to address his
substance abuse problems.†(Carmony,
supra, 33 Cal.4th at p. 378.)
In
sum, we find no basis for concluding that the trial court failed to consider
all of the relevant factors in deciding whether to grant Romero relief or that the trial court abused its discretion by denying
defendant’s Romero motion.
IV. Disposition
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, ACTING P.J.
WE CONCUR:
__________________________
Márquez, J.
__________________________
GROVER, J.
name="_ftn1" title="">
references are to the Penal Code unless otherwise noted.
name="_ftn2" title=""> [2]
As defendant was convicted by plea, the facts of the current offense are taken
from the probation report.
