People v. Lopez CA6 ( 2014 )

Filed 5/27/14 P.v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040081
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1225016)
v.
FRANK PEREZ LOPEZ,
Defendant and Appellant.
Defendant Frank Perez Lopez entered a plea of no contest to four counts of second
degree burglary (Pen. Code, §§ 459-460, subd. (b)),1 and he admitted that he had suffered
one prior serious or violent felony conviction, i.e., a strike (§§ 667, subd. (b), 1170.12,
subd. (c)(1)). Defendant thereafter brought a motion requesting that the court exercise its
discretion to dismiss the prior strike allegation in accordance with People v. Superior
Court (Romero) (1996) 13 Cal. 4th 497 (Romero), which was opposed by the People. The
court denied the Romero motion, and sentenced defendant to a prison term of six years,
eight months.
Defendant argues on appeal that the denial of his Romero motion constituted an
abuse of discretion because the court failed to give adequate consideration to his
1
Further statutory references are to the Penal Code unless otherwise stated.
circumstances, including the remoteness of the strike offense, his long-standing issues
with mental illness and drug abuse, and the fact that his more recent behavior has
indicated a decrease in the seriousness of his criminality.
We conclude that the court did not abuse its discretion in denying the Romero
motion. We will therefore affirm the judgment.
FACTS2
On January 29, 2012, San José Police officers were dispatched to Fry’s Electronics
to investigate a reported theft. Store security had called the police, and when they
arrived, one security officer was following defendant. The police officers observed
defendant walking, made contact with him, and took him into custody. While being
handcuffed, defendant said spontaneously, “ ‘Yeah, these are from Fry’s’ and when asked
if he had a weapon, he responded, ‘Yeah, I have a knife in my pocket and that’s what I
used to cut open boxes.’ ”
Store security officers positively identified defendant as having been involved in
the store theft. They indicated that they had been on the lookout for defendant because
he had committed three other thefts at Fry’s earlier that month on January 5, 11, and 14.
THE PRIOR STRIKE3
Defendant was convicted previously of one violent or serious felony. On January
31, 2006, defendant was convicted of arson involving an inhabited building (§ 451, subd.
(b)), a violent or serious felony (strike) within the meaning of section 1170.12,
subdivision (c)(1), and was sentenced to six years in prison for the offense.4
2
Our summary of the facts is taken from the probation report.
3
Our summary of the strike prior is taken from the probation report.
4
Defendant was also convicted at that time of two other felonies and received
sentences as follows: a consecutive prison sentence of 16 months for evasion of a peace
officer while driving recklessly (Veh. Code, § 2800.2), and a consecutive term of
probation of 32 months for first degree burglary (§ 460, subd. (a)).
2
PROCEDURAL BACKGROUND
Defendant was charged by information filed on February 21, 2013, with four
felonies, namely, four counts of second degree burglary (§§ 459-460, subd. (b)). It was
alleged that defendant had suffered a prior serious and/or violent felony conviction within
the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivision
(c)(1), namely, arson (§ 45, subd. (b)).
On April 8, 2013, defendant entered a conditional plea of no contest to the four
counts of second degree burglary and admitted the prior strike allegation. The plea was
entered with the understanding that defendant (1) would be filing a Romero motion to
request that the court exercise its discretion to dismiss the prior strike allegation, and
(2) would receive a maximum sentence of six years, eight months in prison. Before
accepting the plea, the court apprised defendant fully of the rights he was giving up as a
result of his no contest plea and concerning the consequences of that plea, confirming
that defendant had freely and voluntarily signed a waiver of rights form in connection
with the conditional plea. Counsel stipulated that there was a factual basis for the plea.
Defendant thereafter filed a motion to have the court exercise its discretion to
strike the prior strike allegation, in accordance with Romero, supra, 13 Cal. 4th 497. The
People opposed defendant’s Romero motion. After hearing argument on August 9, 2013,
the court denied defendant’s motion. It then imposed a prison sentence of 32 months for
the count 1 conviction (the lower term of 16 months, doubled due to the prior strike), and
consecutive sentences of 16 months for each of the remaining three counts (one-third of
the mid term [two years], doubled due to the prior strike), for a total prison term of six
years, eight months. Defendant filed a timely notice of appeal based upon the sentence or
other matters occurring after the plea that do not affect the validity of the plea.
3
DISCUSSION
I. Denial of Romero Motion
A. Applicable Law
The 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).) Our high court 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
4
sentence to be meted 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.) 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.)
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 People v. Garcia, supra,
20 Cal.4th at p. 503.) And this abuse of discretion standard also applies to appellate
review of the denial of Romero motions. (People v. Carmony (2004) 33 Cal. 4th 367,
374-376 (Carmony); 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.)
Placing in context the circumstances under which a court properly exercises its
discretion in granting a Romero motion, the 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
5
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 allegation
under Romero, after giving consideration to “the nature of the present offense, along with
the equity of the ultimate sentence in light of other individualized considerations,
including the interests of [defendant] and society as a whole.”5 He contended that his
current offenses were neither serious nor violent, and were “considerably less serious
than the earlier strike prior conviction[].” Defendant emphasized that he took
responsibility for his crimes by pleading no contest to them.
Defendant also argued that there were various extenuating circumstances in his
background and personal history, including his drug addiction and alcohol abuse; two
instances of childhood sexual abuse by a family member; the trauma of his parents’
having divorced when he was eight years of age; the fact that his mother had drug abuse
5
We observe in passing that in making this argument in his written Romero
motion, defendant omitted any reference to the court’s consideration of one of the three
relevant factors the court must balance in deciding a Romero motion, namely, the nature
and circumstances of the prior strike offense. (See Carmony, supra, 33 Cal.4th at pp.
378-379) And his motion makes no reference to that strike prior, other than an oblique
reference to having suffered from depression during his incarceration for the arson
conviction.
6
issues; and his having endured physical abuse from his mother. He also indicated in his
motion that he had begun using crack cocaine when he was 12 years old, and had begun
using marijuana, LSD, and methamphetamine when he was 13 years old. And he had
begun consuming alcohol heavily when he was 19 years old. Defendant stated that
“through the help of recovery programs, . . . [he] has been able to maintain his sobriety
. . . [and] is committed to maintaining his sobriety and will seek out a drug rehabilitation
program to support his sobriety when he is released.”
Defendant acknowledged in his Romero motion that he has “a lengthy psychiatric
history.” As a result of receiving psychiatric treatment during a prior incarceration, 6 “he
was diagnosed with Psychotic Depressive Disorder, Post Traumatic Stress Disorder
(‘PTSD’), and mental disability.” He has been prescribed various medications for these
mental health issues.
Defendant identified positive aspects in his life, including that he “has had stable
employment. Most notably, he worked at A&A Distribution trucking company.”7
Defendant also indicated that he had become a certified truck driver, had graduated from
Santa Clara County’s Roadmap to Recovery Program, had been able to stay sober and
find employment, and had the loving support of an extended family.
The People argued in their written opposition that the facts underlying
“defendant’s prior convictions include[d] extreme violence, repeated domestic violence,
repeated auto theft, repeated residential burglaries, and repeated resisting arrest.” The
6
The date of the incarceration when this diagnosis occurred is unspecified in
defendant’s motion. Because defendant has suffered multiple incarcerations dating back
to 1994, we are unable to determine from his motion whether the diagnosis occurred
while defendant was in his early 20’s or late 30’s, or some period in between.
7
Defendant did not indicate any specifics in the motion, such as dates, to support
his contention that he has had stable employment. The probation officer indicated in her
report that defendant had worked at A&A Distribution from October 2010 through
January 2011.
7
opposition detailed the August 1995 arson incident,8 indicating that defendant had
physically abused his ex-girlfriend, had pointed a gun at her and her children, and had
threatened her life, stating, “ ‘I’m gonna get you, I’m gonna burn you and your
apartment.’ ” His ex-girlfriend feared for her life and moved her children to a relative’s
home. The same night, defendant threw a firebomb through an open window of her
home, while two co-renters were sleeping in it. The firebomb caused major damage.
After defendant returned to the area that night and was spotted by police, he fled in a
stolen car with stolen license plates. A high-speed chase on city streets ensued that
included a police helicopter. Speeds of up to 100 miles were reached. Defendant crashed
through the gate of a private school. At one point aimed his car directly at a sheriff’s
vehicle. He ultimately crashed into a home. After giving chase on foot, the peace
officers apprehended defendant; six officers were required to subdue him. There was
evidence that when he returned to his ex-girlfriend’s home the same night after
firebombing it, he was in possession of materials to create a second firebomb.
The People also emphasized defendant’s criminal history and his performance on
parole and probation. They noted, based upon the probation report, that defendant had
been “on parole at the time he committed the current offenses, [his] probation had been
recently revoked three times, he [had] committed domestic violence while on parole (and
had never registered for his domestic violence class), and had seven felony priors and
8
The probation report contained no information about the facts underlying
defendant’s prior strike conviction. The probation officer indicated that she had made a
request for the case file, but that it had not been received at the time of the report’s
preparation. The source material of the details underlying the arson conviction as
described by the People is uncertain; however, defendant did not object below, nor does
he object here, to the People’s recitation of the matter. We therefore consider the facts
underlying the prior strike conviction as recited by the People as uncontroverted. (See
Carmony, supra, 33 Cal.4th at p. 377 [defendant bears burden of showing trial’s court’s
sentencing decision was arbitrary or irrational].)
8
seven misdemeanor priors.” The People also argued that defendant, in reality, had three
prior strike offenses. Besides the arson conviction, he had two prior first degree burglary
convictions in 1991 and 1996. The People advised that it was only due to the age of the
prior strikes that they had elected to charge defendant with only one of the three strike
priors in this case.
At the hearing on the Romero motion, defense counsel reiterated that defendant’s
more recent history, including the current crimes, involved “a decreasing level of
criminality.” Defense counsel also argued that defendant’s strike offense was remote.
The People reiterated the egregious nature of the prior strike offense and that defendant
had been convicted previously of two uncharged strikes. The People concluded that,
when all factors were considered, defendant could not be considered to be outside the
spirit of the Three Strikes law.
The court denied defendant’s Romero motion. It noted that it had considered the
nature and circumstances of the current crime and the prior strike offense, and the
particulars of defendant’s background, character, and prospects, as required under the
law. The court also indicated that it had considered defendant’s mental health issues and
his substance abuse problems, his prior convictions for seven felonies and seven
misdemeanors, and the fact that he had been imprisoned on three separate occasions. It
concluded that defendant did not “fall outside of the spirit of the [T]hree [S]trikes [L]aw
in whole or in part.”
C. Discussion Regarding Denial of Romero Motion
Defendant argues that he “made a convincing case that he was outside the spirit of
the Three Strikes Law based upon the remoteness of [his] prior strike, as well as pertinent
factors related to the circumstances of the offenses and his future prospects.” He asserts
that “the trial court’s denial of Romero relief was premised on an error or omission which
renders the court’s denial of Romero relief a prejudicial abuse of discretion.” He
contends that the trial court’s “complete omission of [consideration of defendant’s]
9
sobriety and future prospects which place him outside the Three Strikes law” constituted
an abuse of discretion.
As noted, the court must determine from a review of the relevant factors whether
there are “ ‘extraordinary’ ” circumstances such that the defendant, a “ ‘career criminal[,]
can be deemed to fall outside the spirit of’ ” the Three Strikes law. (Carmony, supra,
33 Cal.4th at p. 378.) The court, in considering the Romero motion, was obliged to
consider the three factors identified by the high 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.) Our review of the record shows that the court considered each of these factors in
concluding that this case did not present extraordinary circumstances warranting the
court’s dismissal of the prior strike.
Concerning the first factor (current offense), the fact that the crimes were serial in
nature—four in the span of less than a month—is noteworthy. The fact that the current
offense was nonviolent does not mandate the granting of the 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”]; see also People v. Poslof (2005) 126 Cal. App. 4th 92, 108 [even though current
crime, failing to register as a sex offender, was nonviolent, denial of Romero motion not
an abuse of discretion]; People v. Gaston (1999) 74 Cal. App. 4th 310, 321 [although
current crime of car theft “not as serious as many felonies,” it was “far from trivial”].)
Addressing the second factor in Williams, the prior strike offense was an arson
occurring in August 1995, a crime consisting of “an act of violence that is likely to cause
harm to more than one person.” (People v. Clark (1990) 50 Cal. 3d 583, 637.) Defendant
had previously threatened his ex-girlfriend by pointing a gun at her and her children. He
10
had also threatened her life, stating, “ ‘I’m gonna get you, I’m gonna burn you and your
apartment.’ ” He followed up on this threat of violence by throwing a firebomb at night
through an open window of his ex-girlfriend’s home. Two co-renters were sleeping there
at the time. The firebombing of the structure caused major damage. Defendant not only
endangered the lives of his ex-girlfriend and her two co-renters; he also threw the
firebomb knowing that his ex-girlfriend had children.9 He then engaged the peace
officers in a high-speed chase on city streets, thereby endangering officers and innocent
bystanders. And it was determined that defendant, after firebombing the home and
leaving, returned to the scene with materials to create and activate a second firebomb.
Thus, the circumstances of the prior strike offense were egregious and showed a high
level of violence and callousness.
Consideration of the third factor enunciated in Williams—“the particulars of
[defendant’s] background, character, and prospects” (Williams, supra, 17 Cal.4th at
p. 161)—does not favor dismissal of the strike. Defendant’s criminal history was fairly
extensive. Prior to the four current felonies, defendant had been convicted of seven
felonies and seven misdemeanors. The prior felony convictions consisted of two vehicle
thefts (in 1992 and 1996 [Veh. Code, § 10851, subd. (a)]); two first degree burglaries (in
1991 [§§ 459, 460.1] and 1996 [§§ 459, 460, subd. (a)]); arson of an inhabited building
(in 1996 [§ 451, subd. (b)]); reckless evasion of a peace officer (in 1996 [Veh. Code,
§ 2800.2]); and being a prisoner in possession of a weapon (in 1998 [§ 4502, subd.
(a)]).10 He had received and served prison sentences for three of the felony convictions.
As noted by the People, three of these felonies were strike offenses. Of the misdemeanor
9
Because defendant’s ex-girlfriend believed his prior threat, she had moved her
children to a relative’s home before the firebombing incident.
10
The record is somewhat unclear concerning the misdemeanor convictions.
Although the court indicated there were seven misdemeanor convictions, the record
appears to indicate there were eight.
11
convictions, three involved crimes of violence (i.e., battery [§ 242], infliction of corporal
injury on a spouse or cohabitant [§ 273.5], and battery of a spouse or cohabitant [§§ 242,
243, subd. (e)]).
Additionally, defendant was on parole when he committed the current offenses,
and there were three instances in an approximate six-month period before the commission
of the current offenses in which his probation was revoked and later reinstated. As
described by the probation officer, who had spoken to defendant’s parole agent: “Agent
Rodriguez . . . stated the defendant has sustained 7 Parole Violations in a 2-year span for
not being in compliance with terms of Parole and for new law violations. She described
his overall performance on Parole as bad.” Also, while on parole, defendant had
committed an act of domestic violence—battery on a spouse or cohabitant (§§ 242, 243,
subd. (e))—of which he was convicted in June 2011. The victim in that case was
different from the one involved in the 1995 arson. Defendant received probation and was
ordered to complete a domestic violence program, but as of the time of his arrest for the
current offenses, he had not enrolled in such program. Obviously, defendant’s recidivism
and multiple parole and probation violations demonstrate that he had not learned from his
mistakes. (See Williams, supra, 17 Cal.4th 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 [such] criminal conduct was unacceptable—but had
failed or refused to learn his lesson’ ”].)
In addition to defendant’s criminal history, it is clear that the court considered
other aspects of defendant’s background, including his drug dependence and his mental
health history. Based upon the record before us, defendant had a minimal history of
employment—the record shows that he had worked for a four-month period with A&A
Distribution from October 2010 through January 2011. And the probation officer
indicated that “[o]verall, [defendant’s] character and prospects appear to be unfavorable.”
12
Defendant argues that the trial court abused its “discretion based on the its [sic]
complete omission of [defendant’s] sobriety and future prospects which place him
outside the Three Strikes law, as [defendant] does not represent a danger to society based
upon his past strike or current theft offenses. [Sic.]” He argues that the court erred
because it “barely paid any attention to the positive evidence of [defendant’s] background
and commitment to sobriety and mental health treatment.” He argues that the evidence
he submitted concerning “his commitment to sobriety, his mental health and substance
abuse treatment, and his efforts to maintain steady employment,” together with a “lack of
recent violent offenses, all tend to place [defendant] squarely outside the Three Strikes
Law.”
The court recited on the record the correct Romero standard, namely that in
deciding whether to exercise its discretion to dismiss the strike prior, it was required to
“consider whether in light of the nature and circumstances of his present felony and prior
strike and the particulars of his background, character and prospects, the defendant may
be deemed outside the spirit of the [T]hree-[S]trikes law in whole or in part.” It also
indicated that it had “reviewed and considered all of the factors that would be favorable
to [defendant].” It found, “[i]n view of the totality of the circumstances,” that defendant
did not fall outside the spirit of the Three Strikes law.
Defendant, in effect, contends that, because the court did not specifically articulate
on the record all of the specific aspects of defendant’s background, character and life
experience it considered in connection with his motion—including those factors which he
believes supported favorable consideration of his Romero motion11—the court
11
We acknowledge that certain aspects of defendant’s background and prospects
appeared positive. But defendant’s “commitment to sobriety” was based only on an
assertion in the written Romero motion. He acknowledged to the probation officer that
he had a “problem with alcohol and illegal substance abuse,” but the probation report lists
no information about defendant’s efforts or commitment to overcome those issues.
Similarly, his claimed “efforts to maintain steady employment” were based upon the
(continued)
13
necessarily failed to consider all relevant factors. But the law does not require the trial
court to specify the reasons for denying a Romero motion. (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 there is no showing of such failure
in the exercise of the court’s discretion. “Where the record is silent [citation] ‘in a post-
Romero case, the presumption that a trial court ordinarily is presumed to have correctly
applied the law should be applicable.’ ” (Carmony, supra, 33 Cal.4th at p. 378, quoting
People v. Gillispie (1997) 60 Cal. App. 4th 429, 434.) Thus, the trial court’s denial of
defendant’s Romero motion without expressly addressing the factors cited by defendant
does not support defendant’s contention that the trial court relied upon improper factors
or failed to consider salient factors. (Carmony, at p. 378.)12
The court, after giving due consideration to the specifics of the current offense, the
nature of the prior strike offense, and defendant’s background (including his criminal
record), character and prospects, properly concluded that defendant did not fall outside of
the letter and spirit of the Three Strikes sentencing scheme. (See People v. Philpot
(2004) 122 Cal. App. 4th 893, 906-907 [court properly considered the defendant’s history
of continuously committing crimes for 20 years, his underlying drug addiction, and the
conclusory statement in his motion that he “has had stable employment,” referencing his
work at A&A Distribution. That job, according to the probation report, lasted for four
months, and there is no other indication in the record concerning defendant’s claimed
efforts to achieve stable employment.
12
Defendant notes that the probation officer supported the granting of Romero
relief. But that recommendation was apparently without the probation officer’s having
any information about the prior strike; thus, it was not based upon consideration of all
three factors that must be considered by the court in deciding whether to exercise its
discretion to dismiss a prior strike. (Williams, supra, 17 Cal.4th at p. 161.) Furthermore,
the court has no obligation to follow the probation officer’s sentencing recommendations.
(See People v. Superior Court (On Tai Ho) (1974) 11 Cal. 3d 59, 66 [“the court does not
simply rubber-stamp the recommendation of the probation report”].)
14
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 “ ‘extraordinary.’ ” (Carmony, supra, 33 Cal.4th at
p. 378.) 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.) Therefore, we find that the court did not abuse its discretion in denying
defendant’s Romero motion.
DISPOSITION
The judgment is affirmed.
Márquez, J.
WE CONCUR:
Rushing, P.J.
Premo, J.
15