People v. Gunther CA1/1 ( 2022 )

Filed 8/5/22 P. v. Gunther CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A162520
v. (Sonoma County
JAMES EDWARD GUNTHER, II, Super. Ct. Nos.
SCR7071381,
Defendant and Appellant. SCR7146531)
Pursuant to a negotiated disposition, defendant James Edward
Gunther II pled no contest to charges in two cases, one based on events that
occurred in mid-2017, and the other on events that occurred in early 2018
while the 2017 charges were pending. In both cases, the district attorney
alleged a prior “strike” based on a 2012 conviction for criminal threats. At
sentencing in the 2017 and 2018 cases, defendant made a Romero motion1 to
dismiss the prior strike. The trial court declined to do so, and defendant
appeals. We affirm.
BACKGROUND
The 2017 Case
In early August 2017, Sonoma County Sheriff’s Deputy Brandon Jones,
while driving on Highway 101, noticed a Nissan without registration stickers.
1 People v. Superior Court (1996) 13 Cal.4th 497 (Romero).
1
On running the plate, Jones determined the car had a non-operation
registration, meaning it could not be driven on the highways. When Officer
Jones attempted to make a traffic stop, defendant exited Highway 101, ran
through a red light at the offramp intersection, and sped along surface
streets, accelerating to 80 mph and running through two stop signs, before
colliding with a culvert and landing on a fence next to a commercial property.
Defendant then climbed out of the car and jumped over the fence onto the
commercial property, where he was arrested. After reading defendant his
Miranda2 rights, Officer Jones asked defendant why he had fled. Defendant
told Officer Jones he had a suspended license and there was misdemeanor
warrant out for his arrest.
Defendant was charged with felony recklessly fleeing a police officer
(Veh. Code, § 2800.2), misdemeanor resisting an officer (Pen. Code, § 148,
subd. (a)(1)), driving with a suspended license (Veh. Code, § 14601.1, subd.
(b)(2)), and misdemeanor hit-and-run driving causing property damage (id.,
§ 20002, subd. (a)). The complaint also alleged a prior strike conviction based
on a 2012 conviction for threats to commit a crime resulting in death or great
bodily injury (Pen. Code, § 422).3
A week after the incident, defendant, who was out on bail, failed to
appear for a hearing. The court revoked bail and issued a warrant for his
arrest.
The 2018 Case
In early 2018, Rohnert Park Police Officer Jacob Lystra and his partner
responded to a domestic violence complaint. Upon entering the apartment in
question, Officer Lystra saw a man, later identified as defendant, headed into
2 Miranda v. Arizona (1966) 384 U.S. 436.
3 The criminal conduct underlying the conviction occurred in 2011.
2
a bathroom. Defendant closed the bathroom door, despite Officer Lystra’s
order to come out. Concerned defendant might be retrieving a weapon,
Officer Lystra pulled defendant into the hallway and commenced a pat
search. Before Officer Lystra could finish, defendant broke away and ran
towards the open, sliding backdoor of the apartment.
Officer Lystra followed defendant outside, where he told defendant to
stop and get on the ground. At that point, Officer Lystra applied a carotid
control hold, after which both Officer Lystra and defendant fell to the ground,
and defendant was arrested.
Defendant was charged with felony resisting an officer (Pen. Code, § 69,
subd. (a)), and willful failure to appear while charged with a felony (id.,
§ 1320.5). The complaint also alleged a prior strike conviction based on the
2012 conviction for criminal threats.
After informations were filed in the two cases, and pursuant to a
negotiated disposition, defendant entered a plea of no contest in both cases.
In the 2017 case, he pled no contest to felony recklessly fleeing from a police
officer. In the 2018 case, he pled no contest to felony failure to appear and an
added count of misdemeanor resisting an officer (Pen. Code, §§ 1320.5, 148,
subd. (a)(1)). The balance of the charges in both cases were dismissed.
Prior to sentencing, defendant made a Romero motion to dismiss the
2012 strike conviction for purposes of sentencing. In support of his motion,
defendant stated that the 2017 incident coincided with the terminal illness
and death of his grandmother, who had raised him from the age of 11, after
his parents died. He also pointed to evidence that he was determined to
change his life and taking steps to do so. He had found stable employment,
did volunteer work, maintained strong family relationships, and obtained a
3
valid driver’s license and registration. He had also, on his own initiative,
enrolled in and completed an anger management course.
The prosecution opposed the motion, pointing out defendant’s criminal
history dated back to 2006. His offenses included: taking a vehicle without
the owner’s consent, petty theft, burglary, theft by a forged/invalid credit
card, driving without a license, false imprisonment, inflicting corporal injury
on a spouse, evading a police officer, driving on a suspended license,
obstructing or resisting an officer, possessing a controlled substance,
violating his probation, failing to appear in court multiple times, and giving
false information to an officer. The prosecutor was of the view that defendant
fell squarely within the Three Strikes framework based on his criminal
history, the seriousness of his most recent offenses, his anger management
problems, and his continual disregard for the safety of the public and law
enforcement officers, despite having been given fairly lenient sentences for
prior crimes.
At the hearing, defendant addressed the court and apologized for his
actions and the poor decisions and choices he had previously made.
The court denied the motion and sentenced defendant to four years in
state prison.
DISCUSSION
Acknowledging that a trial court’s denial of a Romero motion is
reviewed for abuse of discretion, defendant does not assert that the record
compels the conclusion that his motion should have been granted, but
contends, instead, that the trial court failed to engage in the multi-faceted
“balancing” dictated by our Supreme Court in Romero and People v. Williams
(1998) 17 Cal.4th 148 (Williams). Thus, defendant states, “[t]his appeal
presents a single question: did the court fail to balance the relevant factors,
4
as required.” (See People v. Myers (1999) 69 Cal.App.4th 305, 310 [a trial
court’s decision will be affirmed “[w]here the record demonstrates that [it]
balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the [Three Strikes] law].”)
In deciding whether to grant a Romero motion, a 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. Carmony (2004) 33 Cal.4th 367,
377 (Carmony), quoting Williams, supra, 17 Cal.4th at p. 161.)
“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 . . . will not be set aside on review” ’ [Citations.] Second, a
‘ “decision will not be reversed merely because reasonable people might
disagree. . . .” ’ 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.)4
4 Asserting that “the antirecidivist spirit of [the Three Strikes law]
seems to be waning in California,” defendant appears to suggest that we
should readjust the discretionary lens employed in our review, particularly in
light of the recent amendments to Penal Code section 1385. As defendant
5
In denying defendant’s motion, the trial court stated:
“. . . I have gone back and looked through everything that I’ve been
provided. I was provided a lot of information from you, there’s a lot of
information in the presentencing report. But what it really comes
down to for the Court is[,] has there been a break or change in
criminality since that strike that you really fall outside of the scheme of
the three strikes law?
“And one of the things that the Court looks at is has the behavior and
criminality escalated or de-escalated since that strike first happened?
And granted, your strike occurred in 2008,[5] so I went back to that
period of time looking forward. And since that time, there were two
DMV-related incidents the year that you were discharged from parole,
which is in 2011.
“In 2013, a 2800.1, which is somewhat similar but less serious than one
of the cases that you’re currently pending sentencing for.
“In 2015, a 148(a)(1), which again is somewhat similar, although a little
less serious than one of the cases you’re currently facing.
“And then these two incidents, the 2800.4[6] [for the 2017 case] and the
69 [for the 2018 case] which occurred only seven months apart, and so
the Court has to look at that. And even those escalated.
“So the 2800 when you took off and were, by witness accounts, flying
down West Moreland at 80 miles per hour through a residential zone
acknowledges, these new provisions are not retroactive, although they would
apply if we were to reverse and remand for resentencing. (People v. Sek
(2022) 74 Cal.App.5th 657, 674.) However, we must apply the law as it
applied at the time of sentencing and in accordance with Supreme Court
precedent. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 454.)
5 The trial court misspoke. Defendant was convicted of burglary (Pen.
Code, § 459) and theft by forged/invalid credit card (id., § 484) in 2008, but
the alleged strike was a 2012 conviction for criminal threats based on conduct
occurring in 2011. (Id., § 422.)
6 The court subsequently corrected itself, that the conviction was for
violating Vehicle Code section 2800.2.
6
that’s highly populated and very dense ending in a collision that could
have killed you, could have killed the officer chasing you, could have
killed the passenger in the car that was asking to be released, that was
pretty serious.
“And seven months later, we have a call to your house for a domestic
violence incident that ends in really a hand-to-hand scenario with you
and the officer who was responding to that in which, you know, that is
concerning what happened on that day that you were trying to shake
the officer off, that he took an elbow to the forehead or the temple as a
result of you trying to break free. That’s not an incident the Court can
take lightly. And the Court looks at each of these as really escalating
incidents.
“And so I really am not in a place where the Court can find a Romero is
appropriate; that I would strike the strike because it doesn’t have those
factors that the Court looks to in determining were the incidents more
or less serious. They were more serious from the Court’s perspective
and there has not really ever been a break, just the level has been
different.”
When defendant asked the court if it had considered the evidence of his
employment, the court responded “[t]he Court is well aware of everything
that you’ve done and are doing. But this is not one, based on your history,
that the Court can just ignore. . . . The Court cannot find any unusual
circumstances to get around those presumptions.”
Despite the court’s explanation at sentencing, defendant insists the
court failed to engage in balancing the appropriate factors. He complains,
specifically, that while the court acknowledged that defendant had made
positive changes in his life, the court “said nothing about how it balanced
those ‘positive changes’ against his prior and current offenses and nothing
about how those changes affected his ‘prospects,’ ” citing to Williams.
In Williams, the trial court granted a Romero motion, striking one of
the defendant’s two prior strike offenses. The court’s discussion as to why it
7
struck the offense was as follows: “ ‘I currently think that I . . . have the
authority to strike a prior under 1385 of the Penal Code. . . .’ ‘[Defendant’s]
prior convictions for the serious felonies were in 1982. It would appear,
though, since that time he has run afoul with [sic] the law many times, but
not for crimes involving actual violence. We always have a situation when
somebody’s driving under the influence, it could have been violence. [¶]
However, luckily, nothing happened in this case.’ ” (Williams, supra,17 Cal.4th at pp. 156–157.) The court “then ordered the finding relating to
the prior conviction for the serious felony of attempted robbery vacated:
‘That leaves us now with a two-strike case, . . . plus the one-year
enhancements for the priors.’ ” (Id. at p. 157.)
The People appealed, and the Court of Appeal reversed. Our Supreme
Court affirmed the reversal and remanded to the trial court for further
proceedings. (Williams, supra, 17 Cal.4th at pp. 164–165.) The high court
explained, in part, that the trial court’s order was procedurally “ ‘ineffective’ ”
because it was “unaccompanied by reasons set forth in an order entered on
the minutes.” (Id. at p. 162.) “Contrary to the requirement of Penal Code
section 1385(a) . . . [the court] failed to set forth its reasons in an order
entered on the minutes.” (Id. at p. 157.) The court went on to explain that
the order was also substantively an abuse of discretion, observing “[t]he
record on appeal is devoid of mitigation” and there, similarly, was “little
favorable about [his] background, character, or prospects.” (Id. at p. 163.)
Procedurally, the trial court’s ruling here stands in marked contrast to
that in Williams. Here, the court set forth in considerable detail its reasons
for denying defendant’s Romero motion.
Furthermore, unlike when a trial court grants a Romero motion, as the
court did in Williams, when a trial court denies such a motion there is no
8
requirement that the court explain its reasons. (In re Large (2007) 41 Cal.4th
538, 550–551.) “While a court must explain its reasons for striking a prior
(§ 1385, subd. (a); see Romero, supra, 13 Cal.4th 497, 531), no similar
requirement applies when a court declines to strike a prior (People v.
Carmony, supra, 33 Cal.4th 367, 376).” (In re Large, at p. 550; see Williams,
supra, 17 Cal.4th at p. 161 [if a court “is striking or vacating an allegation or
finding, it must set forth its reasons in an order entered on the minutes,”
italics added]).) We also indulge a “ ‘strong presumption’ [citation] that the
trial judge properly exercised his [or her] discretion in refusing to strike a
prior conviction allegation” (In re Large, at p. 551), and the appellant has the
burden of rebutting that presumption and demonstrating an abuse of
discretion. (Id. at pp. 550–551.)
Defendant additionally relies on People v. Cole (2001) 88 Cal.App.4th
850 (Cole), asserting the trial court’s denial of a Romero motion in that case
exemplifies that “[o]ther courts have performed the mandated balancing more
conscientiously.”7 We disagree and fail to see how the trial court’s ruling in
that case was any more “conscientious” than that by the trial court here.
The Court of Appeal described the trial court’s ruling in Cole as follows:
“At the sentencing hearing, the court stated that it had read and
considered defendant’s written motion, and the probation report of his
current crimes. The trial court heard argument from both counsel.
Also, on defendant’s behalf, the court heard from the victim of
defendant’s prior convictions of assault with a deadly weapon, and
reviewed the probation report from that prior crime. Defendant and
his mother addressed the court. Ultimately, the court declined to
exercise its discretion to strike any of the prior convictions. The court
sentenced defendant to 25 years to life on each count, to be served
concurrently. It struck the three prior prison terms.” (Cole, supra,
88 Cal.App.4th at pp. 873–874.)
7 Defendant incorrectly cites People v. Cole as a Supreme Court case
reported at 88 Cal.4th 850.
9
The appellate court went on to state:
“The court’s comments in denying the motion reflect a thorough,
thoughtful consideration of the relevant factors. The court succinctly
reviewed ‘the most recent and definitive statement of the Supreme
Court, which does set forth the limits of the court’s discretion,’ an
implicit reference to People v. Williams. . . . The court considered
defendant’s oral and written submissions, but observed that ‘[f]or the
last 16 years, you have been continuously in prison or on parole from
state prison. In fact, by my count it looks to me you have gone back to
prison five times on various parole violations. And that’s separate and
apart from the additional burglary conviction.’ The court noted
defendant’s expression of remorse and the love of his family. However,
the court concluded, ‘I have to say, Mr. Cole, that based upon an
analysis of your background, character, and prospects[,] and even
considering the fact that the court has a great deal of admiration for
you because you did plead guilty and admit all of these allegations
against you without any hope of—at least no indication from the court
as to what the sentence would be, I have to say that I don’t see
anything in your future . . . despite your best intentions . . . [except]
more of the same.’ [¶] The court’s comments leave no doubt that it
fairly exercised its discretion. . . .” (Cole, supra, 88 Cal.App.4th at
p. 874.)
Thus, the appellate court in Cole described a ruling that is not
materially different than that made by the trial court here.8
In short, not only has defendant not cited a single case supporting his
apparent view that a ruling denying a Romero motion must have a greater
degree of specificity and exactitude than the trial court’s ruling here, but, as
8 Defendant also cites Arrozal v. INS (9th Cir. 1998) 159 F.3d 429, 433,
for the proposition that “[t]o complete a proper exercise of discretion, the
court need[s] to weigh [the] mitigating evidence against the aggravating facts
of appellant’s offenses so as to reach a balanced conclusion.” Arrozal involved
an order denying a motion to reopen immigration proceedings and is wholly
inapposite.
10
we have discussed, the law is to the contrary. (In re Large, supra, 41 Cal.4th
at pp. 550–551.)
Rather, what we must determine is whether the trial court considered
the three factors identified by our high court in Williams, namely, “[(1)] the
nature and circumstances of the 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.) Given the trial
court’s explicit statement that it “looked through everything [it had] been
provided,” which included all the materials submitted by defendant, as well
as the probation report, it is clear that the court was aware of its evaluative
responsibility under Romero and Williams. Indeed, absent clear evidence to
the contrary, of which there is none, we must presume the court knew and
followed the law in deciding whether to exercise its discretion to dismiss the
strike allegation, including its consideration of the three factors enunciated
in Williams. (See People v. Kelley (1997) 52 Cal.App.4th 568, 582.)
Furthermore, the fact the trial court may have elaborated on defendant’s
extensive criminal history does not mean that it considered only that factor.
(See Ibid. [court presumed to have considered all relevant factors unless the
contrary is affirmatively shown]; People v. Myers, supra, 69 Cal.App.4th at p.
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 factor”].)
Given that defendant’s appeal is focused on an asserted procedural
deficiency in the trial court’s ruling—i.e., its supposed failure to balance the
factors identified in Williams—we need say little on the substance of the
court’s ruling. We have already summarized the information that was put
11
before the trial court. And in “light of the nature and circumstances” of
defendant’s criminal history and his present crimes, “and the particulars of
his background, character, and prospects,” the trial court did not abuse in its
discretion in concluding that he came within the “spirit” of the Three Strikes
law. (Williams, supra, 17 Cal.4th at p. 161.)
DISPOSITION
The judgment is affirmed.
12
_________________________
Banke, J.
We concur:
_________________________
Margulies, P.J.
_________________________
Wiss, J.*
*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A162520, People v. Gunther
13