People v. Elsner CA4/1 ( 2021 )

Filed 1/6/21 P. v. Elsner CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077126
Plaintiff and Respondent,
v. (Super. Ct. No. SCD282562)
TRAVIS ELSNER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Laura W. Halgren, Judge. Affirmed.
Kelly E. DuFord, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent.
In this appeal, Travis Young Elsner challenges the trial court’s decision
to deny his motion to strike his serious/violent felony prior conviction (prior
strike). He contends the trial court failed to consider important facts about
his mental health history. Elsner argues the court’s alleged failure was an
abuse of discretion, which also denied him due process. We will find there is
no basis for Elsner’s claims and that the court acted well within its discretion
and was fully informed when it denied the so-called Romero1 motion.
FACTS AND PROCEDURAL BACKGROUND
During Pride Weekend in San Diego, Elsner vandalized a church. The
church had a sign stating the church’s inclusive view of the importance of
tolerance for differing races, views, and preferences. Elsner wrote “Fuck you”
on the sign and burned a swastika into it as well.
Elsner pleaded guilty to vandalizing a church (Pen. Code,2 § 594.3,
subd. (b)), and admitted a strike prior (§ 667, subds. (b)-(i)).
At the sentencing hearing, Elsner brought a Romero motion to strike
the “strike prior.” The court denied the motion and sentenced Elsner to the
low term of 16 months, doubled to 32 months because of the prior strike.
Elsner appeals, challenging only the denial of his Romero motion. We
will reject his challenge and affirm.
In 2012, Elsner suffered a serious felony conviction for criminal threats.
The threats were to kill his mother and to engage in a mass school shooting.
The trial court was aware of the facts surrounding the 2012 conviction. In
his sentencing brief, Elsner further advised the court of his mental health
issues and submitted two reports from psychologists discussing his current
and past mental health issues. He attached a narrative from his mother’s
witness interview forgiving him for the prior threats and asking the court to
grant Elsner probation.
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
2 All further statutory references are to the Penal Code.
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The probation report outlined Elsner’s criminal history from the time of
his 2012 conviction. Elsner’s social media activities dealing with various
“hate” groups was also discussed at some length. Ultimately, the probation
officer recommended a four-year prison term.
After hearing arguments from both sides and considering the written
submissions as well as the probation officer’s report, the court said:
“Well, I have spent a lot of time thinking about the case
and what is appropriate, and I just do not think that it is
appropriate for me—I have discretion, I know, but I don't
think it’s proper to exercise my discretion to strike the
strike given the nature of it with the serious specific
threats that were made.
“And in this case, although fortunately no one was hurt
and the damage was minimal, any time a swastika is used
in connection with groups that are discriminated against, it
conveys a message that makes others fearful. And so the
combination of the previous strike being similar in
nature—not completely the same, but still of the same
category, I just don't think it’s proper to strike it, and I’m
not going to.
“But then in balancing what the appropriate sentence
would be, the People certainly make sense in suggesting
that this could be a middle-term case, and there certainly
are sufficient aggravating factors that might justify that.
But when I also look at the mental health diagnoses that
he’s had and the fact that nobody was actually physically
harmed and the fact that he has never actually served time
in prison before, I do think that the low term is
appropriate. So it would be the low term doubled of 32
months.”
A. Legal Principles
Decision granting or denying so-called Romero motions are reviewed
under the abuse of discretion standard of review. (People v. Garcia (1999) 20
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Cal.4th 490, 498-499.) We examine the decisions to determine whether the
ruling “ ‘falls outside the bounds of reason.’ ” (People v. Williams (1998) 17
Cal.4th 148, 162.) The person attacking the trial court’s decision bears the
burden of showing the trial court abused its broad sentencing discretion.
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
B. Analysis
Elsner contends the court abused its discretion and denied him due
process by denying his Romero motion. His argument is difficult to
understand based on this record. Essentially, he argues the court
misunderstood the facts regarding his mental status or at least failed to
consider or discuss it adequately. The argument has no sound basis in this
record.
Elsner’s mental history was discussed at length by the defense, the
court, the probation officer’s report and the defense submission, which
included reports of psychologists. The court stated it had read all materials,
considered all arguments and was fully aware of Elsner’s history and mental
status. To the extent Elsner would have liked more discussion leading to a
different result, nothing in the court’s remarks hints at lack of knowledge of
facts or any arbitrary or irrational conclusions by the court.
The record shows thoughtful and careful analysis of factors for and
against granting the motion. The court, who reduced the sentence
recommended by the probation officer, acted with full knowledge of relevant
facts and appropriate balancing of the interests of the public as well as those
of Elsner. There was no abuse of discretion nor denial of due process.
DISPOSITION
The judgment is affirmed.
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HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
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