People v. Talamantes CA2/8 ( 2022 )

Filed 1/27/22 P. v. Talamantes CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306801
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA463954)
v.
ROBERTO TALAMANTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Stephen A. Marcus, Judge. Affirmed.
Miriam K. Billington, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven E. Mercer and Noah P. Hill,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Roberto Talamantes was convicted, after a jury trial, of one
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count of assault with a firearm (Pen. Code, § 245, subd. (a)(2))
and one count of mayhem (§ 203), with the addition of great
bodily injury and firearm enhancements for both counts.
Talamantes waived his right to a jury trial on the
allegations that he had suffered two strike priors (§§ 667, subds.
(b)-(i); 1170.12, subds. (a)-(d)), and the trial court held a bench
trial. The trial court found the allegations true and sentenced
Talamantes to a determinate term of 13 years, plus an
indeterminate term of 75 years to life in state prison under the
Three Strikes law. The trial court denied Talamantes’s motion to
strike at least one of the strikes under People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, and section 1385.
On appeal, Talamantes asserts that the trial court should
have stricken at least one of his strike priors and sentenced him
to 33 years in prison, rather than 13 plus 75 to life, because (1) he
does not fall within the “spirit” of the Three Strikes law, and
(2) recent felony sentencing trends favor giving defendants a
chance at release before death.
The trial court did not abuse its discretion. We affirm.
BACKGROUND
On December 21, 2017, Talamantes was at the home of
Anthony Moreno and Karla Amparan, where he had been living
since September 2017. Anthony and Karla were also home, along
with Anthony’s brother, Christopher Moreno. Anthony knocked
on Talamantes’s door and asked him to turn down his music.
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Undesignated statutory references herein are to the Penal
Code.
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Anthony and Talamantes began to argue, and Anthony told
Talamantes that he had to move out. At some point, the
argument between Talamantes and Anthony became physical,
and Karla and Christopher joined Anthony and Talamantes in
Talamantes bedroom. After continued fighting, Talamantes
grabbed a firearm and shot Anthony in his forearm. The bullet
went through Anthony and hit Christopher in his abdomen.
Meanwhile, Karla left the room to call 911 and when Talamantes
tried to leave the house, she blocked him from leaving, saying he
needed to wait for the police. Talamantes then shot Karla by
holding the gun onto her right thigh and firing. The bullet
traveled through her right thigh into her left leg. Talamantes
then left the house and checked himself into Silver Lake Medical
Center, where he was placed on a psychiatric hold.
Before this incident, Talamantes had two prior strike
convictions: In 2006, he was convicted of violation of section
273.5, domestic violence with injury, with a weapons
enhancement. In 2007, he was convicted of violation of section
245, subdivision (a)(1), assault with a deadly weapon. He had a
subsequent felony conviction in 2009 for possession of narcotics
and contempt of court, and a misdemeanor conviction for
domestic battery in 2014.
On July 28, 2020, the trial court declined to strike a strike
prior, and sentenced Talamantes to a determinate term of 13
years, plus 75 years to life in state prison.
Appellant timely filed a notice of appeal on July 28, 2020.
A. Standard of Review
“ ‘[T]he Three Strikes law initiative, as well as the
legislative act embodying its terms, was intended to restrict
courts’ discretion in sentencing repeat offenders.’ ” (People v.
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Carmony (2004) 33 Cal.4th 367, 377 (Carmony), quoting Romero,
supra 13 Cal.4th at p. 528.) Under California Supreme Court
precedent, there are “stringent” standards that a court must
follow in determining whether an exception to the Three Strikes
sentencing scheme is warranted. (Carmony, supra, 33 Cal.4th at
p. 377.) The trial court “ ‘must consider whether, in light of the
nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.’ ” (Ibid., quoting
People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) Abuse
of discretion may be present where a trial court considers
impermissible factors or does not consider relevant ones.
(Carmony, supra, 33 Cal.4th at p. 378.)
The Three Strikes law “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.” (Carmony, supra,
33 Cal.4th at p. 378.) Accordingly, “ ‘ “a decision will not be
reversed merely because reasonable people might disagree.” ’ ”
(Id. at p. 377.) “ ‘ “ ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of
the trial judge’ ” ’. . . . [A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Ibid.)
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B. The Trial Court Did Not Abuse Its Discretion in
Denying Appellant’s Motion to Strike Under Romero
We first consider whether Talamantes was outside the
Three Strikes law’s spirit and therefore should be treated as
though he did not have previous serious or violent felony
convictions. (Williams, supra, 17 Cal.4th at p. 161.) He argues
that the trial court should have concluded that his history of
schizophrenia and impaired cognitive abilities, life-long
substance abuse, age at the time of his prior strikes and when he
could be released, and the circumstances surrounding his current
offenses take him outside the spirit of the Three Strikes law.
Talamantes argues that the trial court was required to consider
these “cumulative” circumstances under People v. Garcia (1999)
20 Cal.4th 490, 503 (Garcia).
Talamantes claim fails because the trial court reasonably
concluded that his current use of a firearm against people with
whom he was living, together with his prior criminal history,
place him within the spirit of Three Strikes law, and because the
trial court properly considered Talamantes’s background,
character, and prospects. (Williams, supra, 17 Cal.4th at p. 161.)
We consider now the trial court’s review of each relevant
issue.
a. Criminal History
First, the trial court considered Talamantes prior strike
convictions, noting in particularly that his 2006 strike conviction
for domestic violence resulting in great bodily injury and 2007
strike conviction for assault with a deadly weapon, both involved
violence and the use of weapons against people with whom
Talamantes was living. The trial court concluded that the record
established a pattern of Talamantes using violence when “dealing
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with people.”
The trial court also properly considered whether his 2006
and 2007 convictions, both for violence against the same victim,
(1) should be considered as a single aberrant period, and (2) were
too remote in time from his other convictions.
First, to determine whether the first two strikes in 2006
and 2007 constituted a single, aberrant period, the trial court
looked at Talamantes’s entire criminal record. (See Garcia,
supra, 20 Cal.4th at p. 503 [holding that a “single period of
aberrant behavior for which [defendant] served a single prison
term,” may justify discretion under section 1385].) It found that
after the 2006 conviction, Talamantes spent a year in county jail,
and after his 2007 conviction, he spent two years in state prison.
Talamantes was then convicted in 2009 for contempt of court and
possession of a controlled substance, and spent four years in state
prison. He was convicted in 2014 of domestic battery. The trial
court also noted Talamantes had prior juvenile adjudications of
first degree robbery and possession of a firearm. The trial court
noted on the record that Talamantes has four adult convictions:
three felonies and a misdemeanor. The court thus concluded that
the 2006 and 2007 convictions were not aberrant.
Talamantes points to Garcia, where “defendant’s prior
convictions all arose from a single period of aberrant behavior for
which he served a single prison term . . . and his criminal history
does not include any actual violence.” (Garcia, supra, 20 Cal.4th
at p. 503.) The facts before us are quite different. Talamantes’s
lengthy period of violent behavior was noted by the trial court
and supported by the record. This case did not involve a single
period of aberrant behavior.
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Talamantes also points to People v. Avila (2020) 57
Cal.App.5th 1134 (Avila), where the court found that “Avila has
not committed a violent felony since his [prior] strike offenses,
showing that the severity of his record is decreasing.” (Id. at
p. 1143, italics added.) Here, the current crimes are particularly
violent, and Talamantes is fortunate that no one died. His record
does not establish a decreasing pattern of severity of his crimes.
Second, regarding remoteness, the trial court subtracted
the time Talamantes spent in prison between his second and
third strikes, and determined that there had only been, at most,
the equivalent of four years in between the two when he was not
incarcerated. (See People v. Mayfield (2020) 50 Cal.App.5th 1096,
1108 [reversing trial court for failure to subtract prison time].)
The trial court concluded that the strikes were not remote.
Finally, the trial court found Talamantes’s current
convictions “particularly violent.” Talamantes argues that he
was defending himself against three people that he thought were
threatening his life, and that his mental illness and cognitive
issues “likely impaired his judgement.” Talamantes testified that
Anthony used profanity, kicked the door in, pushed him, and
punched him, so he pulled out a gun to try to scare Anthony.
He stated that Karla then came in and threw his heater. He also
testified that he ended up on the floor and was intimidated by
Anthony, Karla, and Christopher all standing over him, so he
shot when Anthony started to “rush me, push me.” In contrast,
Anthony testified that it was Talamantes who was first
aggressive and violent. More importantly, the jury clearly
rejected Talamantes’s “self-defense” version of the facts. The
trial court had no obligation to sentence Talamantes as if he had
been acquitted.
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The trial court properly determined that the criminal
history factor pointed in favor of denying the Romero motion
because Talamantes has a pattern of violent behavior against
people with whom he lives. This case was especially egregious as
it involved a shooting at close range of all three victims,
particularly as to Karla, who was shot twice in the leg at close
range for simply trying to prevent him from leaving the house.
(See Carmony, supra, 33 Cal.4th at pp. 373, 378–379.)
b. Background and Character
i. Mental Illness and Cognitive Abilities
Talamantes argues that his mental health and cognitive
abilities take him out of the spirit of the Three Strikes law. The
trial court reviewed the medical expert’s report and “had a lot of
problems” with it, namely that the expert himself, Dr. Schug,
thought that Talamantes could be malingering when it came to
his mental illness. The trial court pointed to additional reasons
he thought Talamantes was malingering: that he checked
himself into a mental hospital after he shot his roommates,
despite never before being hospitalized, and then called the
police.
Talamantes takes issue with the trial court’s focus on
malingering, pointing out that Dr. Schug’s report states that his
“intellectual defects may have negatively impacted his
performance on malingering measures . . . . [I]nterpretations
regarding the defendant’s possibly malingering psychiatric illness
must be made with caution.” The trial court also did not
acknowledge on the record that Dr. Schug found that Talamantes
came out on “the profound impairment range (0.4 )” for mental
functioning such that his “overall performance would be
considered comparable to other individuals with schizophrenia.”
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In addition, Dr. Schug’s report and the evidence from the hospital
that Talamantes checked himself into showed that Talamantes
had “previously been prescribed antipsychotic medication,
but . . . had not taken it in 8-9 months.” He had also been seeing
a psychologist and taking antipsychotic medication in prison.
Even where a trial court erroneously failed to consider an
appellant’s mental health condition at all—which is not the case
here—we have declined to find an abuse of discretion where
“[t]he record reflects the trial court considered a wide range of
appropriate factors in passing sentence, particularly the nature
and circumstances of appellant’s present and past convictions.”
(People v. Carrasco (2008) 163 Cal.App.4th 978, 993.) Here, the
trial court did consider the issue of Talamantes’s mental health.
The trial court was under no obligation to accept the portions of
Dr. Schug’s report that were helpful to Talamantes and reject the
portions that undermined Talamantes’s arguments. The trial
court was entitled to express grave concern over Dr. Schug’s
conclusion that Talamantes may “be exaggerating—if not
outright feigning—some symptoms of mental illness.” We find
the trial court acted within its discretion in weighing the factors
discussed by Dr. Schug, and deciding whether his conclusions
were persuasive.
ii. Drug and Alcohol Addiction
Talamantes next asserts that his drug addiction is
mitigation justifying dismissal of at least one strike. He asserts
that his criminal history has a nexus with his drug and alcohol
addictions dating back to when he was a teenager. Talamantes
cites Dr. Schug’s report, which states that Talamantes presented
with drug and alcohol use disorders.
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The trial court considered Talamantes’s substance abuse,
which it found “not well documented,” and also found that there
was not any indication that Talamantes “did anything about his
drug offense.” In Carmony, the Supreme Court found that
Carmony had a long history of drug and alcohol abuse, that
alcohol contributed to “all of his prior offenses,” and that “he had
attended Alcoholics Anonymous meetings.” Nonetheless, the
court held that the trial court did not abuse its discretion in
declining to strike the strike. (Carmony, supra, 33 Cal.4th at
p. 372.) Talamantes has cited no case holding that a court must
strike a strike if the defendant is addicted to drugs.
iii. Age
Talamantes makes two arguments regarding age. First, he
argues that his 2006 and 2007 crimes, had they been committed
under current law, would have been considered youth offenses.
He admits that age is not dispositive alone, but argues it is
“plainly relevant to the nature and circumstances of the strikes
and could be a mitigating factor.” (Avila, supra, 57 Cal.App.5th
at pp. 1141–1142.)
The trial court did not, when discussing the Romero
motion, explicitly reference Talamantes’s age when he committed
the prior strikes. But the court did state that it read
Talamantes’s sentencing memorandum. That memorandum
states his ages at the time of the strike priors. The trial court
also explicitly noted Talamantes’s juvenile record as a factor
leaning towards not striking the strikes because it was evidence
of his extensive, serious criminal history. When a court is silent
as to an issue relevant to the Romero analysis, we must presume
it did not abuse its discretion as long as there is no contravening
evidence in the record. (Carmony, supra, 33 Cal.4th at p. 378;
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People v. Myers (1999) 69 Cal.App.4th 305, 310.) Here there is no
contravening evidence.
Second, Talamantes contends that the length of his
sentence of 13 years plus 75 years to life must be considered to
avoid an “unjust sentence,” because it means he will die in prison,
as opposed to possibly being released in his sixties if he received
the 33 year sentence he requested. (Citing Garcia, supra, 20
Cal.4th at p. 500.) Talamantes argues that if a strike prior and
the firearm enhancement for his mayhem conviction had been
stricken, he would have been eligible for parole in his mid-sixties
(after 33 years serving 85 percent of his sentence). He asserts at
that age, “the chances that he will re-offend will be greatly
reduced,” citing a 2017 Federal Sentencing Commission report
noting a negative correlation between age and the probability of
recidivism.
While some courts have held that age at release can be a
factor in support of mitigation when one will likely die in prison,
(see e.g., Avila, supra, 57 Cal.App.5th at p. 1143), there is no
controlling precedent that requires sentencing courts to avoid
Three Strikes sentences that will result in the defendant dying in
custody. (See, e.g., People v. Haller (2009) 174 Cal.App.4th 1080,
1088-1089 [Three Strikes sentence of 78 years to life for 42-year-
old defendant upheld for charges of assault with a deadly weapon
and criminal assault].)
In addition, Talamantes’s various arguments as to felony
sentencing trends favoring giving him a chance at release before
death do not change our conclusion. Talamantes points to a 2012
change in the Three Strikes law removing non-violent, non-
serious felonies from the Three Strikes scheme. But Talamantes
does not explain why that law has any direct bearing on the
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outcome here; only that this, along with changes in other areas of
the law, show that life sentences are increasingly disfavored. The
fact that the available punishment for the type of offense
Talamantes actually committed includes the sentence he received
speaks volumes about the Legislature’s desire to grant trial
courts the discretion to impose such sentences.
c. Review of All Factors
Based on the trial court’s review of the factors raised by
Talamantes and proper application of Carmony, we hold that the
trial court did not abuse its discretion. (Carmony, supra, 33
Cal.4th at p. 377.) A repeat criminal falls outside the Three
Strikes law’s spirit only in limited circumstances. (Id. at p. 378.)
The trial court’s decision was not so arbitrary or irrational that
no reasonable person could possibly agree. (Id. at p. 377.) We
must ask whether “the ruling in question ‘falls outside the bounds
of reason’ under the applicable law and the relevant facts.”
(Williams, supra, 17 Cal.4th at p. 162, italics added; Garcia,
supra, 20 Cal.4th at p. 503.) Due to the violent nature of
Talamantes’s current crimes and past, violent strikes, we cannot
hold that it does. The trial court was well within its discretion in
imposing sentence without striking a strike or enhancement.
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DISPOSITION
The judgment is affirmed.
HARUTUNIAN, J.*
We concur:
GRIMES, Acting P. J.
STRATTON, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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