People v. Shipp CA3 ( 2021 )

Filed 6/28/21 P. v. Shipp CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent, C090454
v. (Super. Ct. No. 62158170)
CHRISTOPHER LEE SHIPP,
Defendant and Appellant.
A jury found defendant Christopher Lee Shipp guilty of residential burglary and
resisting a peace officer, and the trial court found true various prior strike conviction
allegations. Defendant now contends the trial court abused its discretion when it denied
his motion to dismiss one of the prior strike allegations. Finding no abuse of discretion,
we will affirm the judgment.
BACKGROUND
In 2018, defendant broke into, and entered, the victim’s home while the victim
was away. His entry triggered an alarm, which summoned sheriff’s deputies. When the
deputies approached the house, they saw defendant walk into the living room holding a
1
rake. One of the deputies identified himself as law enforcement and defendant ran away.
Law enforcement apprehended defendant as he fled.
Defendant spoke to a detective shortly after he was arrested. Defendant explained
he had taken six or seven “bars” of Xanax the night before and felt high. He admitted
breaking into the house to look for “[a]nything and money.” Defendant explained that
before he went into the house, he “walk[ed] around the place” and knocked on the door to
check if anyone was home.
The prosecution charged defendant with one count of residential burglary
(Pen. Code, § 459)1 and one count of resisting a peace officer (§ 148, subd. (a)(1)).
The prosecution also alleged defendant had two prior convictions for serious felonies
from 2005: one for assault with a firearm (§ 245, subd. (a)(2)) in Sacramento County,
and one for attempted burglary (§§ 664, subd. (a), 459) in Placer County. (§§ 667,
subds. (b)-(i), 1170.12.) Defendant moved to dismiss the serious felony allegations under
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), but the trial court
denied the motion after considering “defendant’s present felony and the prior strikes and
the particulars of his background, character, and prospects and what the Court considers a
just result.” At the beginning of trial, defendant moved for reconsideration of the motion.
The trial court deferred the motion until after trial.
The jury found defendant guilty of both counts and the trial court found the prior
strike allegations true. Defendant renewed his Romero motion and the trial court held a
hearing on the motion. Among other things, defense counsel referenced defendant’s
family, his difficulties with substance abuse, and his efforts to seek help, arguing those
circumstances supported dismissing the strike. Defendant also spoke, as did an advocate
from a substance abuse treatment program who had worked with defendant.
1 Undesignated statutory references are to the Penal Code.
2
The prosecution described defendant’s criminal history. The 2005 assault with
a firearm conviction had occurred when defendant fired a handgun at another person.
The other strike offense, an attempted burglary from 2005, occurred when defendant
kicked in the door of a house but did not take anything. In 2009, defendant violated
parole and was convicted of felony statutory rape (§ 261.5, subd. (d)), for which he was
sentenced to three years in prison. Then, in 2015, defendant was convicted of
misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). The prosecution argued
defendant had not performed well on supervised bail in his current case and had been
arrested for driving under the influence and resisting a peace officer.
Defense counsel responded that the assault with a firearm conviction only
involved firing a weapon into the ground to stop an advancing person, and that
substances were involved in that case.
The trial court said it had considered the briefing and statements it had received,
including the probation report and all attachments. It noted it was guided by Romero,
People v. Williams (1998) 17 Cal.4th 148, and the spirit of the three strikes law. The trial
court said that even though the current offense was not a violent offense, it was
nevertheless serious. It also noted defendant’s history of substance abuse, but it found
the asserted Xanax use was not sufficient to mitigate defendant’s crime in this case.
The trial court also noted defendant’s history of offenses despite opportunities to set
himself on a lawful path. Considering the foregoing, the trial court found that
defendant’s offenses fell within the spirit of the three strikes law, and it declined to
dismiss the prior strike allegation.
DISCUSSION
Defendant argues the trial court abused its discretion in declining to dismiss a
prior strike allegation, given the nonviolent conduct involved in the present offense.
Moreover, defendant argues, the remoteness and circumstances of the prior strike
3
convictions, as well as defendant’s history of substance abuse, justify dismissing at least
one of the prior strike allegations.
The California Supreme Court held in Romero that trial courts have discretion
under section 1385 to dismiss a prior strike allegation when the trial court finds a
defendant falls outside the spirit of the three strikes law. (Romero, supra, 13 Cal.4th
at pp. 529-530.) To decide whether to dismiss a prior strike allegation, the trial court
“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.” (People v. Williams, supra,17 Cal.4th at p. 161.) “While a court must explain its reasons for striking a prior
[citations], no similar requirement applies when a court declines to strike a prior
[citation].” (In re Large (2007) 41 Cal.4th 538, 550.)
“[A] court’s 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.) “[A] trial court will only abuse its discretion in failing to strike a
prior felony conviction allegation in limited circumstances.” (Id. at p. 378.) Where the
trial court, aware of its discretion, “ ‘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.’ ” (Ibid.) We will not
reverse the ruling on a Romero motion unless the defendant shows that the decision was
“so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
Here, the trial court reviewed defendant’s moving papers and the prosecution’s
opposition brief. It also reviewed the probation report and addenda, which listed the
nature and circumstances of defendant’s current offense, assessed the various sentencing
factors in mitigation and aggravation, and listed his past convictions. The report noted
4
defendant had a significant history of substance abuse that was tied to his criminal
behavior. It also noted defendant had an unsatisfactory history of complying with parole
or probation requirements and had even been arrested while on supervised bail in the
current case, suggesting his criminal behavior was habitual. The report attached several
bills for restitution costs showing damages done to the victim’s house in the current
offense, along with reference letters from friends and an acceptance letter from a
substance abuse treatment program.
When it made its ruling, the trial court explained that defendant had many
misdemeanors, felonies, and parole violations. Defendant served a state prison term after
the 2005 convictions, each of which was based on a separate incident, rather than a single
period of aberrant behavior. While the prior convictions were approximately 13 years old
at the time defendant committed the current offense, defendant had violated parole and
committed an additional felony and misdemeanor in the intervening period. And while
the current offense was not violent, it was serious because of its impact on the victim.
The trial court considered defendant’s history of substance abuse and weighed it
against the aggravating circumstances of the current offense. In particular, the trial court
noted the crime involved some measure of planning in that defendant acknowledged
scoping out the victim’s house beforehand to ensure no one was present when he broke
in. The trial court also noted that many past efforts had been made to assist defendant.
The trial court considered the relevant factors in a manner consistent with Romero.
It reviewed the factors now asserted by defendant and found that his crimes fell within
the spirit of the three strikes law. Among other things, the trial court based its decision
on defendant’s history of criminal activity and convictions, as well as his poor history of
compliance with supervised release conditions. Its consideration of these factors was not
irrational or arbitrary. The trial court did not abuse its discretion.
Defendant briefly argues, without elaboration, that his due process right to have
sentencing decisions made in accordance with state law was violated by the trial court’s
5
decision. Because we conclude the trial court complied with state law, we reject the due
process claim. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5.)
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
HOCH, J.
6