People v. Estep CA6 ( 2015 )

Filed 4/29/15 P. v. Estep CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040500
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1224893)
v.
LARRY ESTEP,
Defendant and Appellant.
Defendant Larry Estep entered a plea of no contest to 19 counts of using personal
identifying information without authorization (Pen. Code, §530.5, subd. (a)).1 He also
admitted allegations that he had suffered two prior serious or violent felony convictions,
i.e., strikes (§§ 667, subd. (b), 1170.12, subd. (c)(1)). Defendant thereafter brought a
motion––opposed by the People––requesting that the court exercise its discretion to
dismiss the prior strike allegations in accordance with People v. Superior Court (Romero)
(1996) 13 Cal. 4th 497 (Romero). The court denied the Romero motion and sentenced
defendant to a prison term of five years, four months.
On appeal, defendant argues that the denial of his Romero motion constituted an
abuse of discretion because the court failed to give adequate consideration to, among
1
Further statutory references are to the Penal Code unless otherwise stated.
other things, the remoteness of the strike offenses; his prior prosecution, conviction, and
incarceration in other counties for similar offenses that arose out of the same criminal
scheme; his active participation in a treatment program; and his prospects of future
employment. We find no merit to defendant’s arguments and will affirm the judgment.
FACTS2
THE CURRENT OFFENSES
On January 11, 2011, the Milpitas Police Department received a Ripon Police
Department report that there had been fraudulent charges made at a Milpitas Home
Depot. The fraudulent charges were made to a BABS Concrete business account. The
owner of BABS Concrete reported to the Milpitas police that he had learned from Home
Depot, after his credit card had been declined, that his business address had been changed
and someone had ordered additional credit cards for his business account. There had
been a charge of $573.98 at the Milpitas Home Depot on the account that had not been
authorized. A store investigator identified defendant through surveillance videos as the
person having made the fraudulent purchase.
On March 28, 2011, a second victim (San José Plumbing) reported to San José
police that fraudulent purchases totaling $30,891.12 had been made using her business
account. Approximately four months earlier, the victim had received two new Home
Depot credit cards containing her business information and account number, but with
defendant’s name on the card. Home Depot told her they would remove the cards from
her business account. Several months later, the victim contacted Home Depot and
learned that defendant had changed her business address for the account. She received a
bill from Home Depot that reflected unauthorized purchases of $30,891.12 made at
several Home Depot stores in the San Francisco Bay Area.
2
Our summaries of the facts concerning the current offenses and the strike priors
are taken from the report of the probation officer.
2
Defendant was arrested on June 8, 2011, at an Emeryville Home Depot. Several
weeks later, detectives met with defendant at the Alameda County Jail. “[D]efendant
spontaneously started talking about how big the case was. He stated his ‘main man’
provide[d] him with credit cards and [told] him to make the purchases.” Defendant said
he would follow the instructions and sell the items purchased with the credit cards.
Defendant specifically recalled the purchase involving the BABS Concrete account.
THE PRIOR STRIKES
Defendant had previously been convicted of two violent or serious felonies. Both
are discussed below.
I. The First Strike Prior
On November 16, 1993, defendant was convicted of second degree robbery
(§§ 211/212.5), a strike (§§ 667, subd. (b), 1170.12). Together with the second strike
prior (discussed below) he was sentenced to 15 years in prison.
The charged crime arose out of an incident occurring at an Oakland automobile
repair shop on the morning of August 22, 1993. Defendant had drawn a .25-caliber
handgun and had pressed it against a worker’s ribcage. He ordered the worker and his
coworker—the worker’s brother—“to walk or he would shoot them.” He later pressed
the gun against the temples of the two workers and threatened to shoot them.
Defendant’s accomplice took $180 out of the cash register.
II. The Second Strike Prior
On November 16, 1993, defendant was convicted of second degree robbery
(§§ 211/212.5), a strike (§§ 667, subd. (b), 1170.12). The charged crime arose out of an
incident occurring in Berkeley on the evening of August 30, 1993. Defendant and an
accomplice approached a woman at a movie theater box office. Defendant grabbed her
by the neck, pressed a gun against her ribs, and demanded money. The victim gave
money to defendant, and he and his accomplice fled the scene.
3
PROCEDURAL BACKGROUND
Defendant was charged in a consolidated felony complaint filed May 9, 2013, with
19 felony counts of using personal identifying information without authorization (§§ 459-
460, subd. (a); count 1, and counts 3 through 20), and one felony count of theft by use of
an altered, stolen, or counterfeit access card (§§ 484g, subd. (a)-487; count 2). (Count 1
related to the fraudulent purchase on September 26, 2010, involving BABS Concrete.
Counts 3 through 20 related to fraudulent purchases involving San José Plumbing on
three successive days in December 2010—13 of which occurred in four different counties
on December 11, one occurred on December 12, and four occurred in three different
counties on December 13.) It was alleged that defendant had suffered two prior strikes
(§§ 667, subd. (b), 1170.12, subd. (c)(1)). The complaint was later amended to dismiss
count 2 and to renumber counts 3 through 20 as counts 2 through 19. On May 20, 2013,
defendant pleaded no contest to the 19 counts and admitted the two strike prior
allegations with the understanding that he would receive a maximum sentence of five
years, four months.
Defendant thereafter filed a motion to have the court exercise its discretion to
strike the two prior strike allegations in accordance with Romero, supra, 13 Cal. 4th 497.
The People opposed defendant’s Romero motion. After hearing argument on
November 22, 2013, the court denied defendant’s motion. The court imposed a sentence
of five years, four months, based upon a lower term sentence of 32 months for the count
1 conviction pursuant to the Three Strikes law, and consecutive prison terms of
16 months each for the count 2 and count 3 convictions, and a 32-month concurrent
prison terms each for counts 4 through 19. In imposing this sentence, the court rejected
the recommendation of the Probation Department that defendant receive an aggregate
sentence of 26 years, eight months based upon running the sentences for each of the
19 counts consecutively. The court also ordered defendant to pay victim restitution to
Home Depot in the amount of $22,600.20.
4
DISCUSSION
I. Denial of Romero Motion
A. Applicable Law
The California Supreme Court held in Romero that the trial court, on its own
motion, is empowered under section 1385, subdivision (a) to dismiss or strike prior
felony conviction allegations in cases that are brought under the law known as the “Three
Strikes” law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The court’s discretion,
however, is limited to instances in which dismissing such strikes is in the furtherance of
justice, as determined by giving “ ‘ “consideration both of the constitutional rights of the
defendant, and the interests of society represented by the People . . . .” ’ ” (Id. at p. 530,
original italics.) Thus, the court may not strike a sentencing allegation “solely ‘to
accommodate judicial convenience or because of court congestion[’ citation, or] simply
because a defendant pleads guilty. [Citation.] Nor would a court act properly if ‘guided
solely by a personal antipathy for the effect that the three strikes law would have on [a]
defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his [or her] present
offenses,’ and other ‘individualized considerations.’ [Citation.]” (Id. at p. 531.)
The Supreme Court later explained “the ‘concept’ of ‘furtherance of justice’
within the meaning of Penal Code section 1385[, subdivision] (a)[, which Romero had
recognized as being] ‘ “amorphous.” ’ [Citation.]” (People v. Williams (1998)
17 Cal. 4th 148, 159 (Williams).) It noted that in deciding whether to dismiss a strike “ ‘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 [or her] present felonies and prior serious and/or violent
felony convictions, and the particulars of his [or her] 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 [or she] had not previously been convicted of
one or more serious and/or violent felonies.” (Id. at p. 161.) The sentence to be meted
5
out to the defendant “is also a relevant consideration . . . in fact, it is the overarching
consideration because the underlying purpose of striking prior conviction allegations is
the avoidance of unjust sentences. [Citation.]” (People v. Garcia (1999) 20 Cal. 4th 490,
500 (Garcia).)
If the court strikes or dismisses one or more prior conviction allegations, its
reasons for doing so must be stated in an order entered on the minutes. (Ibid.)
Conversely, the trial court has no obligation to set forth its reasons for deciding not to
strike or dismiss prior strikes. (In re Large (2007) 41 Cal. 4th 538, 546, fn. 6; see also In
re Coley (2012) 55 Cal. 4th 524, 560.) As our high court has explained: “The absence of
such a requirement [that the court set forth its reasons for refusing to dismiss a strike]
merely reflects the legislative presumption that a court acts properly whenever it
sentences a defendant in accordance with the three strikes law.” (People v. Carmony
(2004) 33 Cal. 4th 367, 376 (Carmony).)
The granting of a Romero motion is “subject to review for abuse of discretion.
This standard is deferential. [Citations.] But it is not empty. Although variously phrased
in various decisions [citation], it asks in substance whether the ruling in question ‘falls
outside the bounds of reason’ under the applicable law and the relevant facts.
[Citations.]” (Williams, supra, 17 Cal.4th at p. 162; see also Garcia, supra, 20 Cal.4th at
p. 503.) This abuse of discretion standard also applies to appellate review of the denial of
Romero motions. (Carmony, supra, 33 Cal.4th at pp. 374-376; see also id. at p. 375:
“ ‘Discretion is the power to make the decision, one way or the other.’ ”) It is the
defendant’s burden as the party attacking the sentencing decision to show that it was
arbitrary or irrational, and, absent such showing, there is a presumption that the court
“ ‘ “acted to achieve the legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.” ’
[Citations.]” (Id. at p. 377.) Such a discretionary decision “ ‘ “will not be reversed
merely because reasonable people might disagree.” ’ ” (Ibid.)
6
Placing in context the circumstances under which a court properly exercises its
discretion in granting a Romero motion, the California Supreme Court has explained:
“[T]he [T]hree [S]trikes 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.” (Carmony, supra, 33
Cal.4th at p. 378.) “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 [or she] squarely falls once he [or she] 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.”
(Ibid.)
B. Defendant’s Romero Motion
Defendant argued below that the court should dismiss the prior strike allegations.
He contended, among other things, that he was a low public safety risk; “the root of [his]
criminality ha[d] been his untreated substance abuse issues”; he had in place a strong
substance abuse rehabilitation plan that would include residential treatment program
sponsored by the Department of Veterans Affairs (VA); he had significant job skills that
provided him with good prospects for employment; while in custody, he had actively
participated in substance abuse courses; the strike offenses were remote in time; the
current crimes were nonviolent, no one was injured, and “[n]o criminal sophistication
was demonstrated”; he acknowledged responsibility for the current crimes; and he was
63 years old.
7
The People opposed the motion, indicating there was “nothing to suggest that
Defendant falls outside the spirit of the Three Strikes Law.” They argued that “[t]he
current offenses demonstrate increased sophistication and planning as Defendant was an
active participant of a large credit card fraud ring and [he] alone caused Home Depot to
suffer losses of approximately $121,000.” The People stressed the violent nature of the
two prior strike offenses, which involved defendant threatening at gunpoint three victims
in order to rob them. The People also emphasized defendant’s criminal history and his
poor performance on parole and probation.
After brief argument from defendant’s counsel—in which counsel asked the court
to consider that defendant had already been sentenced in out-of-county proceedings that
involved offenses arising out of the same criminal scheme—the court denied defendant’s
Romero motion.
C. Discussion Regarding Denial of Romero Motion
Defendant makes three essential arguments in support of his claim that the court
abused its discretion by failing to dismiss the two strike priors. First, he argues the court
failed to consider his record of rehabilitation, including letters of support submitted on his
behalf. Second, he contends the court failed to consider the “unique opportunities for
employment” available to him upon his release from custody. And third, in determining
the length of time defendant would serve for the current offenses, he argues the court
failed to consider the approximate two years defendant had served for out-of-county
convictions relating to the same criminal scheme.
The court, in considering the Romero motion, was obliged to consider the three
factors identified by the California Supreme Court in Williams, namely, “[1] the nature
and circumstances of [defendant’s] present felonies[, 2 the nature and circumstances of
defendant’s] prior serious and/or violent felony convictions, and [3] the particulars of
[defendant’s] background, character, and prospects . . . .” (Williams, supra, 17 Cal.4th at
p. 161.) In making the three arguments in support of his appellate claim—each of which
8
we will address below—defendant effectively ignores the first two Williams factors, and
omits any consideration of one important aspect of the third factor: defendant’s criminal
history.
1. The Present Offenses
Concerning the first factor—the nature and circumstances of the present felony
offenses—defendant argued below that the 19 underlying felonies were nonviolent, and
defendant was not armed during their commission. He asserted that “[h]e did not take
advantage of a position of trust, and [he] acted without criminal sophistication . . .
[Defendant was] not the initiator of the unlawful conduct, but rather was used as a pawn
in a scheme developed by others far more criminally sophisticated than himself.” He
asserted that the crimes he had committed since the commission of the strike offenses,
including the current crimes, were of decreasing severity. And, he argued, he took early
responsibility for the crimes.
In assessing the current crimes, neither the absence of resulting physical harm to
others nor the nonviolent nature of the crimes serves as a basis for the granting of a
Romero motion. (See People v. Strong (2001) 87 Cal. App. 4th 328, 344 [reversing order
granting Romero motion which was based in part on nonviolent nature of current offense;
“the nonviolent or nonthreatening nature of the felony cannot alone take the crime
outside the spirit of the law”]; People v. Gaston (1999) 74 Cal. App. 4th 310, 321 (Gaston)
[although current crime of car theft “not as serious as many felonies,” it was “far from
trivial”].) Far from being a victimless crime, defendant made substantial unauthorized
purchases involving two businesses, BABS Concrete and San José Plumbing. Although
Home Depot absorbed the customers’ respective financial losses, the owner of San José
Plumbing reported that she was unable to have a business account with Home Depot
because of defendant’s conduct. Home Depot reported losses from the current offenses
of $22,600.20. And the current offenses were part of a larger enterprise involving
defendant and others that resulted in substantial additional fraudulent purchases from
9
Home Depot stores in several counties.3 Additionally, although defendant accepted
responsibility for the present crimes, he sought to minimize his involvement in the
criminal scheme, stating to the probation officer that “he was merely a ‘mule running in
and out of the stores.’ He was ‘taking instructions from the main person’. . . [and was]
disappointed in the justice system [because it was] treating him as a ‘master mind’ behind
this plan.”
2. The Prior Strikes
Addressing the second Williams factor, the two prior strike offenses were second
degree robbery. Both offenses involved the personal use of a handgun by defendant. In
the August 22, 1993 robbery, defendant pressed the handgun against the ribcage of one
worker, telling the worker and his brother that he would shoot them if they did not move;
defendant later pressed the gun against the temples of both workers and threatened to
shoot them. In the August 30, 1993 robbery, defendant grabbed a woman by her neck
and pressed a handgun against her ribs while demanding money. The threat of physical
harm and emotional trauma to the three victims cannot be minimized. (See People v.
Hodgson (2003) 111 Cal. App. 4th 566, 580 [defendant “had to be aware use of a gun to
effect the robbery presented a grave risk of death”].)4
It is true, as emphasized by defendant in his motion below, that the prior strikes
involved crimes that were remote in time—occurring approximately 18 years before the
3
Although the record on this issue is somewhat sparse, the probation officer noted
that the investigator for Home Depot had reported that defendant had been involved in
$121,000-worth of fraudulent purchases using business credit cards at various Home
Depot stores.
4
In the Romero motion, defendant’s attorney claimed that “[t]he prior involved a
robbery where [defendant] was the driver of the getaway car”; his codefendant was his
brother; and “the weapons used in the robbery were in fact ‘fake’ guns.” These
circumstances are not presented in, or otherwise corroborated by, the record, and it is
uncertain whether counsel’s statements are in reference to the Oakland robbery, the
Berkeley robbery, or both 1993 robberies.
10
commission of the current offenses. But as we discuss, post, defendant did not live a
crime-free life either before or after his commission of the strike offenses, and he was in
prison for a majority of the time after 1993, serving his sentence for the strike offenses.
Under these circumstances, the fact that the prior strike offenses were somewhat remote
in time provides little or no support for defendant’s position that he falls outside of the
spirit of the Three Strikes law. (See People v. Pearson (2008) 165 Cal. App. 4th 740, 749
[rejecting argument that prior strikes should have been dismissed because they were
remote, because of violent nature of current crime, and because defendant had led a
continuous life of crime and had performed poorly on probation and parole]; Gaston,
supra, 74 Cal.App.4th at p. 321 [remoteness of prior strikes “not significant” in view of
the defendant’s lengthy criminal history].)
3. Defendant’s Background, Character, and Prospects
a. Criminal Background
One aspect of a defendant’s background that must be considered in evaluating the
propriety of dismissing a strike prior is his or her criminal history. (See People v. Philpot
(2004) 122 Cal. App. 4th 893, 906 (Philpot) [noting defendant’s “criminal history was
extensive and serious” and he had “manifested a persistent inability to conform his
conduct to the requirements of the law”]; Gaston, supra, 74 Cal.App.4th at p. 320
[finding abuse of discretion in dismissing strike prior; although strike was 17 years old,
defendant had an “unrelenting record of recidivism”].) This aspect of defendant’s
background is demonstrably unfavorable to his position.
The record shows that, excluding the current offenses, defendant had been
convicted of 12 felonies and four misdemeanors. His first misdemeanor conviction
occurred in 1969, and his first felony conviction occurred 10 years later—a conviction for
receiving stolen property (§ 496). In 1984, he was convicted of bank robbery for which
he was sentenced to 15 years in federal prison, the execution of which was suspended. In
1986, he was again convicted of bank robbery and was sentenced to eight years in federal
11
prison. On November 16, 1993, defendant was sentenced to prison for 15 years in
connection with the two Alameda County robbery convictions, i.e., the prior strikes. In
November 2005, he was convicted in Alameda County of petty theft with a prior, a
felony (§§ 484, subd. (a), 666), and was granted five years’ probation with the condition
that he serve one year in jail. In November 2009, he was convicted in Alameda County
of grand theft (§ 487, subd. (a)); he received probation, but it was later terminated and he
was sentenced to two years in prison. In August 2011, he was convicted in Alameda
County of grand theft (§ 487, subd. (a)) and unlawful use of personal identifying
information (§ 530.5, subd. (a)). He received probation for these offenses. In February
2013, he was convicted in Marin County of second degree burglary (§ 459, subd. (a)) and
theft by use of an altered, stolen, or counterfeit access card (§ 484g). He received a 32-
month prison sentence for these offenses. And in April 2013, he was convicted in Contra
Costa County for theft by use of an altered, stolen, or counterfeit access card (§ 484g).
He received probation for that offense.
b. Substance Abuse History
Defendant attributed his criminality to the fact that, after his release from the
United States Marine Corps due to a physical injury, he became addicted to heroin. He
told the probation officer that he had had a substance abuse problem for more than 25
years. On appeal, counsel explains defendant’s recidivism as follows: “After serving a
15-year sentence without the benefit of consistent substance abuse treatment, [defendant]
returned to the streets without any support and quickly returned to a life of crime in order
to support his heroin addiction.”
Defendant requested that the court “acknowledge that the root of [defendant’s]
criminality has been his untreated substance abuse issues.” He submitted a letter from
the VA confirming his eligibility for a six-month residential treatment program focusing
on recovery and employment for veterans. Additionally, he indicated that he had been
actively participating in an in-custody treatment service, BACR, and submitted a letter
12
from BACR’s lead counselor, James Sellers. Sellers stated that defendant had attended
and graduated from each of the programs offered by BACR. Although Sellers qualified
his opinions by stating that it was “impossible to predict a ‘treatment outcome,’ ” he
stated that defendant had “shown many of the signs of imminent change” and was “a very
good subject for treatment.”
Defendant argues the court failed to give adequate consideration to this aspect of
his background, character, and prospects. Specifically, he argues that the court did not
consider that his history of criminality was due to his untreated substance abuse issues,
that his prospects were good because he had taken positive steps to treat the problem, and
that he was eligible upon his release to participate in the VA’s six-month residential
treatment program. But the fact that defendant claimed his drug dependency was the
cause of his criminal behavior did not furnish a basis for the granting of his Romero
motion. Nor was the fact that defendant had successfully participated in treatment
programs a reason, of itself, to warrant the dismissal of his prior strikes. (See People v.
Martinez (1999) 71 Cal. App. 4th 1502, 1511 [“drug addiction is not necessarily regarded
as a mitigating factor when a criminal defendant has a long-term problem and seems
unwilling to pursue treatment,” notwithstanding his having sought treatment after
incarceration for the current offenses].) While defendant’s willingness to commit to
treatment to address his longstanding drug problem is commendable, neither it nor the
prospective opportunity to participate in the VA program were matters that compelled the
granting of the Romero motion.
c. Prospects
Defendant noted below that he had significant training and work history. As
described in the motion filed by his counsel,5 defendant had (1) vocational training in
5
With two exceptions that are noted in the text, there is no verification found in
the record of the facts presented by defendant’s counsel in the Romero motion.
13
carpentry and business administration from a college in Oakland; (2) obtained experience
“from the years he spent working with his various [u]ncles” in remodeling homes,
including performing electrical, plumbing, roofing, painting, and carpentry work; (3)
worked for eight years with DMC Bay Area “gaining extensive experience in clerical
work and administrative support”; (4) worked as an assistant administrator for the
Washington State Department of Social and Health Services; (5) worked for three years
as a procurement supervisor for Butler Telecom Communications; and (6) gained
“experience in automotive repair and mechanics, as a forklift operator, and as a
machinist/machine operator.” Defendant also noted (verified by an exhibit) that he
would be eligible for priority service from the California Employment Development
Department (EDD) to assist him in finding employment. And defendant, while
incarcerated, took a lead role in a large painting project at the Marin County Jail. In a
letter attached to the motion dated November 18, 2012, a deputy sheriff commended
defendant’s “exceptional work performance” on the project. Counsel asserted that
defendant’s work background and experience, potential opportunities upon his release,
and his work while incarcerated indicated that he had realistic prospects of gainful
employment.
In arguing that his prospects upon release were good, defendant ignores certain
circumstances that are not as favorable to his position. Two significant ones, discussed
ante, are defendant’s history of criminality and substance abuse. In addition, as noted by
the probation officer, defendant did not have a support network, “[felt] abandoned by his
family,” and was transient.
Defendant argues that the trial court, in assessing his background, character and
prospects, disregarded his work experience, training, recent work at the Marin County
Jail, and the possibility of his receiving EDD job assistance. While there is no evidence
the court specifically considered these matters, there is also nothing suggesting that it did
not. Nor was the trial court required to identify whether it considered this issue or any
14
other issue, the extent to which it deemed any issue important, or otherwise provide
reasons for its denial of the Romero motion. (In re Large, supra, 41 Cal.4th at p. 546,
fn. 6 [trial court need not specify reasons for denying Romero motion].)
d. Punishment for Related Crimes
Defendant argues the trial court abused its discretion by not considering the
sentence it imposed for the current offenses in the broader context of defendant’s
punishment for other crimes committed as part of the same criminal scheme. Defendant
cites Garcia, supra, 20 Cal. 4th 490 in support of his position. He argues: “Since 2011,
[defendant] had been in custody for guilty pleas he entered in Marin, Contra Costa, and
Alameda Counties for crimes arising from the same criminal scheme for which he was
prosecuted in this case, involving the same victim, namely, Home Depot.” He contends
the People did not address this issue, and the trial court likewise failed to address his
argument.
The record does not show that the court failed or refused to take into consideration
defendant’s incarceration in other counties for crimes committed as part of the same
criminal scheme as the 19 felonies to which he pleaded no contest here. There is no
evidence that the court either specifically considered, or did not consider, this matter.
Since the court, in refusing to dismiss the strikes, was not required to specifically identify
the issues it considered or its conclusions as to their importance, its failure to specifically
note that it had considered defendant’s incarceration in other counties for other offenses
was not error. (In re Large, supra, 41 Cal.4th at p. 546, fn. 6.)
In Garcia, the defendant was found guilty of two burglary counts, and the court
found true the allegation that defendant had sustained five prior strike convictions.
(Garcia, supra, 20 Cal.4th at p. 493.) The court then denied the defendant’s motion to
dismiss four of the five strike allegations as to one count, but granted it as to a second
count, and imposed a total sentence of 31 years, four months to life. (Id. at pp. 494-495.)
The primary issue considered by the California Supreme Court in Garcia was whether
15
the trial court, in the exercise of its discretion, may dismiss strike allegations as to one
count but not as to another. (Id. at pp. 492-493, 496, 499-502.)
After concluding the court had the discretion in an appropriate case “to dismiss
prior conviction allegations on a count-by-count basis [citation]” (Garcia, supra,
20 Cal.4th at p. 502), the Supreme Court determined that the trial court had not abused its
discretion by dismissing one of the strikes (id. at p. 503). In the course of addressing the
primary issue in the case, the court observed: “[T]he Attorney General’s argument
proceeds from the false assumption that striking prior conviction allegations with respect
to some, but not all, counts is proper only if the current offenses differ in some way from
one another, or if they differ in their relationship to the prior convictions. But a
defendant’s sentence is also a relevant consideration when deciding whether to strike a
prior conviction allegation; in fact, it is the overarching consideration because the
underlying purpose of striking prior conviction allegations is the avoidance of unjust
sentences. [Citation.] A trial judge, applying the factors we enumerated in Romero and
Williams, may find adequate justification for striking one or more prior conviction
allegations, but may deem appropriate the sentence that results from striking the prior
conviction allegations as to only some counts. When a proper basis exists for a court to
strike prior conviction allegations as to at least one current conviction, the law does not
require the court to treat other current convictions with perfect symmetry if symmetrical
treatment would result in an unjust sentence.” (Id. at p. 500.)
Defendant contends that “[t]he concerns addressed in Garcia are particularly
relevant to the facts of the instant case. They reveal, in effect, that the trial court here
was obligated to consider the Williams factors in the context of all the time served by
[defendant] in other counties for crimes arising from the same criminal scheme.” While
under Garcia, supra, 20 Cal.4th at page 500, the trial court must consider, in determining
whether to exercise its discretion to dismiss strike allegations, whether the sentence is
otherwise unjust, the Supreme Court did not address the situation presented here:
16
defendant’s having already served sentences for prior convictions in other counties
arising out of the same general criminal scheme. It cannot be concluded, therefore, that
under Garcia, the trial court is required to consider such sentences. In any event, there is
nothing in the record to support defendant’s conclusion that the trial court did not
consider the fact that defendant had already received punishment in other counties for
related crimes. Nor is there anything showing the court did not, as required under
Garcia, consider whether the sentence, absent a dismissal of the strikes, would be unjust.
We presume the court knew and followed the law—including its considering the three
factors enunciated in Williams, supra, 17 Cal.4th at page 161, and its assessing whether
the sentence was otherwise unjust—in connection with determining whether to exercise
its discretion to dismiss the strike allegations. (See People v. Coddington (2000)
23 Cal. 4th 529, 644, disapproved on another point in Price v. Superior Court (2001)
25 Cal. 4th 1046, 1069, fn. 13.)
4. Trial Court’s Stated Reasons
In connection with his assertion that the trial court failed to consider that
defendant had been incarcerated for approximately two years for related crimes,
defendant asserts the trial court’s only stated reason for denying the Romero motion was
its conclusion that, even if it were inclined to dismiss one of the strikes, the resulting
sentence would be no different than had it dismissed neither strike. He argues the court
did not “provide any reason for why it was inclined to deny the Romero motion on one,
rather than both, prior strikes,” and the minutes provide no reason for the denial of the
motion. The reporter’s transcript reflects the following comments by the trial judge:
“With respect to the Romero motion, I’m not going to grant it. And . . . one of the main
reasons is . . . that even if I were to grant the Romero motion, I would only be granting it
as to one of the priors, and Mr. Estep would end up with the same sentence as if even
though I don’t grant it [sic] . . .”
17
We understand from the trial judge’s remarks that he did not feel that the
circumstances justified his exercising his discretion to dismiss both strikes, and therefore,
even if he were inclined to dismiss one strike, it would be of no consequence. Implicit in
the judge’s statement is that he weighed the relevant considerations and concluded that
defendant did not fall outside the spirit of the Three Strikes law so as to warrant dismissal
of both strikes. The failure of the trial judge either on the record or in the minutes to
reflect his full reasoning on the matter does not justify reversal, since he was not required
to enunciate his reasoning. (In re Large, supra, 41 Cal.4th at p. 546, fn. 6; cf. Kennedy v.
Superior Court (2006) 145 Cal. App. 4th 359, 368-369 [court not obligated to state reasons
for denial of motion for discovery by convicted felon in habeas corpus proceeding;
decision will be affirmed unless appellant meets “burden of showing the trial court
abused its discretion because [it] could have had no reasonable basis for its ruling”].)
Further, to the extent defendant challenges the trial judge’s decision based upon his
statement that dismissal of one strike would be of no consequence, “we review the action
of the lower court, not its reasons. [Citation.].” (People v. Herrera (2000)
83 Cal. App. 4th 46, 65.)
5. Conclusion
Upon review of the first two Williams factors—which were not addressed by
defendant in the appeal—the circumstances regarding both factors did not favor
defendant’s position that dismissal of the strike allegations was appropriate. As to the
third factor—“the particulars of [defendant’s] background, character, and prospects”
(Williams, supra, 17 Cal.4th at p. 161)—while there were some favorable circumstances,
they were not so compelling as to require dismissal of the strike priors. Significantly,
defendant’s recidivism demonstrated that he had not learned from his mistakes. (See
Williams, at p. 163 [noting that multiple convictions prior to the present offense indicated
that the defendant “ ‘had been taught, through the application of formal sanction, that
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[such] criminal conduct was unacceptable—but had failed or refused to learn his
lesson’ ”].)
Defendant’s contention that the court abused its discretion in denying the Romero
motion because it did not specifically consider defendant’s punishment for related crimes,
his work experience and skills, or his prospects of employment is also without merit. The
court was not required to identify the issues it considered or otherwise provide its
rationale for ultimately concluding that the Romero motion should be denied. (In re
Large, supra, 41 Cal.4th at p. 546, fn. 6; see also In re Coley, supra, 55 Cal.4th at
p. 560.) And we will not infer that the court failed to give adequate consideration to all
relevant factors that were enunciated by our high court in Williams. Where the record
concerning a Romero motion is silent, “the presumption that a trial court ordinarily is
presumed to have correctly applied the law should be applicable.” (People v. Gillispie
(1997) 60 Cal. App. 4th 429, 434; see also Carmony, supra, 33 Cal.4th at p. 378.)
The court—after giving due consideration to the specifics of the current offense,
the nature of the prior strike offenses, and defendant’s background character and
prospects (including his criminal record)—properly concluded that defendant did not fall
outside of the letter and spirit of the Three Strikes sentencing scheme. (See Philpot,
supra, 122 Cal.App.4th at pp. 906-907 [court properly considered the defendant’s history
of continuously committing crimes for 20 years, his underlying drug addiction, and the
prior and current offense as indicative of his poor future prospects and that, as “a flagrant
recidivist,” he was not outside the spirit of the Three Strikes law].) The circumstances
presented by defendant here are not so “ ‘extraordinary’ ” as to fall outside the spirit of
the Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 378.) Because the court’s
ruling did not “ ‘fall[] outside the bounds of reason’ under the applicable law and the
relevant facts [citation]” (Williams, supra, 17 Cal.4th at p. 162), the court did not abuse
its discretion in denying defendant’s Romero motion.
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DISPOSITION
The judgment is affirmed.
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Márquez, J.
WE CONCUR:
Bamattre-Manoukian, Acting P. J.
Mihara, J.
People v. Estep
H040500
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