Opinion
E073235
11-30-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ANTHONY CHATMAN, Defendant and Appellant.
Kendall Dawson Wasley, 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, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI18002837) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed. Kendall Dawson Wasley, 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, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
On June 3, 2019, a jury convicted defendant and appellant Raymond Anthony Chatman of first degree residential burglary (Pen. Code, § 459). The jury also found true that a person, other than an accomplice, was present in the residence when the burglary was committed (§ 667.5, subd. (c)). In a bifurcated proceeding, the trial court found true that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)). After the court denied defendant's motion to strike his prior strike and prior serious felony conviction, the trial court sentenced defendant to a total term of 13 years in prison with 335 days' credit for time served. On appeal, defendant contends the trial court abused its discretion in declining to strike his prior strike conviction and the five-year prior serious felony enhancement. We find no abuse and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
Hailey G., her aunt Valerie S., and her cousin Danielle S. (Valerie's daughter), lived together in Hesperia. Defendant was their neighbor, who they had known for years. The two houses were approximately 30-40 feet apart. Defendant would sometimes talk to himself. He was never verbally or physically abusive to Valerie or her family, and he was always kind to Hailey's children.
On September 28, 2018, Hailey and Valerie were home, and Danielle was away. While asleep in her bedroom around 1:00 a.m., Hailey awoke to a weird feeling in her stomach and decided to check her home. She opened her bedroom door, turned on the hallway light, and saw defendant's feet, with shoes on, and his body crawling on the floor. Defendant's body was inside Danielle's bedroom. Hailey screamed to her aunt that "Raymond" was in the house. Defendant then jumped up, as if he was startled, and put his finger to his mouth in a motion to be quiet to Hailey. He was wearing only his shoes, and Hailey saw that defendant had an erect penis. Hailey went back into her bedroom, locked the door, and called the police. Hailey did not mention seeing defendant's erect penis to the police on the night of the incident.
Valerie heard Hailey yell, opened the door to her room, looked down the hall, and saw defendant walking away down the hallway naked. Valerie heard defendant leave through the sliding glass door in the living room leading to the backyard. Valerie went to Hailey's room where they stayed until the police arrived. The next morning, Hailey and Valerie found gray men's basketball shorts, a watch, and a white T-shirt in their yard.
Danielle usually would have been home asleep in her bedroom, but she was not home on the night of the incident. Defendant did not say anything at the time of the incident or touch anyone inside the house. In addition, he did not take anything from the house.
On October 19, 2018, an information was filed charging defendant with first degree burglary (§ 459), with a person present (§ 667.5, subd. (c)). The information also alleged a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)). Both these allegations were based on the same prior conviction, a 2009 assault with a deadly weapon.
The information was later amended with no significant changes. --------
On November 9, 2018, a doubt was declared as to defendant's mental competency, and criminal proceedings were suspended. Over the next few months, three mental health doctors were appointed. One provider found defendant incompetent; however, defendant did not participate in the interview and the court advised defendant to participate in the interview with the next doctor.
On March 29, 2019, the parties stipulated to defendant's mental competency and the criminal proceedings were reinstated.
On June 3, 2019, a jury found defendant guilty on the sole count of first degree burglary. The jury also found true the allegation that a person, other than an accomplice, was present in the residence when the burglary was committed. The trial court then held a bifurcated court trial as to the prior strike allegation and prior serious felony allegation. The trial court found both allegations true.
On June 19, 2019, defendant filed a motion to dismiss the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Defendant noted that he was 62 years old, his prior strike conviction was 10 years old, he had suffered from mental health issues, he had cared for his elderly mother, and he had struggled with life difficulties. He also pointed out that no items were stolen from the home, none of the victims were injured, there was no physical damage to the home or the victims, and no weapons were involved in the incident.
The trial court denied defendant's Romero motion on July 17, 2019. The court also denied defendant's oral request to strike the five-year prior serious felony enhancement. The trial court sentenced defendant to a total of 13 years in prison, composed of the middle term of four years for his new conviction, doubled to eight years on account of the strike, plus an additional five years for the prior serious felony enhancement. Defendant timely appealed.
III
DISCUSSION
Defendant argues that the trial court abused its discretion by denying his Romero motion and denying his request to strike the five-year prior serious felony enhancement. We disagree with defendant's contentions.
A. Motion to Strike Prior Strike Conviction
We review a trial court's ruling on a Romero motion under the deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162 (Williams).) This means that on appeal the trial court is "'"presumed to have acted to achieve legitimate sentencing objectives"'" and the decision to impose a particular sentence will not be set aside unless an affirmative showing is made that the sentence "is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)
In exercising its discretion whether to strike a prior strike allegation, a trial court considers various factors, including "the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, . . . the particulars of his background, character, and prospects," and whether the defendant may properly be deemed outside the spirit of the "Three Strikes" law. (Williams, supra, 17 Cal.4th at p. 161.) The record shows that the trial court in this case considered these factors. The court considered that the prior conviction defendant sought to strike was from 2009 and was an assault with a deadly weapon. The court acknowledged that "the strike prior is somewhat aged" and "old." However, the court also pointed out that defendant had not remained crime-free for any significant period since his prior strike conviction.
Specifically, the trial court pointed out that after defendant was convicted of the prior strike conviction, he was placed on probation. He then violated probation in that case after he was convicted of felony attempted elder abuse in 2014. He was then sentenced to a concurrent term in state prison. The court stated that in 2017, defendant was convicted of second degree burglary and was sentenced to two years in prison. The court also considered defendant's prior criminal history, which consisted of misdemeanor driving under the influence in 1979, transportation or sale of a controlled substance in 1986, receiving stolen property in 1995, assault with a deadly weapon in 2009, and attempted elder abuse in 2012. The court noted that defendant had multiple probation and parole violations starting in 1989. The court explained that defendant was sentenced to state prison in 1989, and after he was released from prison, he violated parole by committing the 2009 prior strike conviction for assault with a deadly weapon. The court also considered defendant's mental health but did not believe there were any indications of "insinuating factors, such as mental health diagnoses," that played a role in his criminal history. The court pointed out that defendant denied having any mental health diagnoses when interviewed by probation and that if his mental health was a concern, defendant and his counsel would have brought that issue to the probation officer's attention.
The trial court further indicated it gave "serious consideration" regarding whether to strike the five-year prior enhancement allegation, but declined to strike the prior serious felony conviction. The court explained that defendant's conduct of entering a neighbor's home in the middle of the night crawling around naked was traumatizing to the victims and presented a danger to the community. The court also noted that the neighbors would have had their guard down because of their prior relationship and the same problem existed with the prior assault conviction. The court found aggravating factors that defendant was an active participant in the crime, the nature and circumstances of the crime were serious as compared to other crimes, if the victims had been armed they could have shot defendant, the victims were traumatized, defendant had a significant criminal history, his performance on probation had been unsatisfactory, prison would not seriously impact defendant as he had been to prison before, defendant showed no remorse, and he would be a danger to the community if not in prison. Thus, the record, as set out above, demonstrates that the trial court properly considered defendant's prior and current felony conviction and his background, character, and prospects in determining whether to strike defendant's prior strike and prior serious felony conviction.
Nevertheless, defendant argues that the court abused its discretion in not affording proper weight to certain factors and not considering others, "resulting in an absurd and unjust 13-year prison sentence for the single offense." First, defendant complains the trial court's conclusion that there were no mental health diagnoses putting his criminal history in a different context was inconsistent with the record. He also argues that his 2009 prior strike conviction was not serious or dangerous, as evidenced by him being placed on probation. He further contends that the current offense was not serious or dangerous, nonviolent, and no one was physically injured or even touched. He explains that he made no verbal threats, no weapon was involved, and he was in the home for a short time and quickly left on his own without making a disturbance. He believes he falls outside the spirit of the Three Strikes law and that the trial court should have struck the prior strike conviction.
While there was some strange behavior by defendant, and he was referred for competency evaluations in which he failed to participate before his counsel stipulated to his competence, there was no evidence that defendant's mental illness was causing his recidivism. The trial court, in evaluating various aspects of defendant's background, considered his mental health history but did not find it was the cause of his criminal history.
Defendant does not cite any authority—nor are we aware of any—that suggests that a court, as a general rule, should exercise its discretion to dismiss a strike when a defendant presents a history of mental illness. To the contrary, a similar argument was rejected in People v. Carrasco (2008) 163 Cal.App.4th 978. There, the defendant asserted unsuccessfully that the trial court should have dismissed a prior strike allegation because, in addition to long-term drug use, he had "'some significant mental health history and issues that [had], for the most part, been undiagnosed and untreated.'" (Id. at p. 992.) The trial court commented that case law did not authorize consideration of the defendant's "'mental state, his mental condition, the reasons why he wanted to do these things.'" (Id. at p. 993.) The appellate court rejected the defendant's claim that the trial court had erred in this respect. (Ibid.) It explained, "The record reflects the trial court considered a wide range of appropriate factors in passing sentence, particularly the nature and circumstances of [the defendant's] present and past convictions." (Ibid.) Since the trial court had expressly considered the defendant's "background and character in ruling on the motion," its remarks about his mental condition amounted to "an acknowledgement that the court could not give undue weight to an inherently speculative argument that defendant's mental state 'made him do it.'" (Id. at pp. 993-994.)
Here, in emphasizing the mental health issues that may have motivated or explained his criminality, defendant either ignores or minimizes other aspects of his "background, character, and prospects" (Williams, supra, 17 Cal.4th at p. 161) relevant to the court's disposition of the Romero motion. As explained, those aspects were unfavorable to his position.
In addition, the fact that defendant was placed on probation after he committed his prior strike conviction and no one was physically hurt or touched in the commission of the current offense are not grounds 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 [although current crime of car theft "not as serious as many felonies," it was "far from trivial"].) There was certainly emotional injury to the occupants in having their home violated in the middle of the night while they were sleeping. Furthermore, it is significant that the current crime of first degree burglary was itself a serious or violent felony (strike). As the trial court noted, this late-night home burglary while occupants were sleeping placed both the residents and defendant at great risk. (See People v. Cruz (1996) 13 Cal.4th 764, 775 [heightened statutory protection given to burglaries of occupied dwellings "in order to avoid the increased danger of personal violence attendant upon an entry into a 'building currently used as sleeping and living quarters'"].)
Notwithstanding, none of the issues defendant raises meet his burden to prove that the trial court's "'"sentencing decision was irrational or arbitrary."'" (Carmony, supra, 33 Cal.4th at p. 376.) "'"In the absence of such a showing, the trial court['s] . . . discretionary determination to impose a particular sentence will not be set aside on review."'" (Id. at pp. 376-377.) "'[I]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations." (Id. at p. 378.) "[A] '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"'" (Id. at p. 377.) Indeed, "the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and . . . 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." (Id. at p. 378.)
Those limited circumstances do not exist here. The trial court was within its discretion to consider defendant's prior misdemeanor and felony convictions, the intervening felony convictions, and multiple probation and parole violations as evidence that defendant was likely to reoffend and to therefore decline to strike the prior strike conviction. Defendant did not and has not presented any argument or evidence meeting his burden to show that this decision was irrational or arbitrary under the appropriate standard of review.
B. Request to Strike the Five-Year Prior Serious Felony Enhancement
Defendant also argues that the trial court abused its discretion in refusing to strike his five-year prior serious felony enhancement under newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393).
Senate Bill 1393 was enacted effective January 1, 2019. The legislation amended sections 667, subdivision (a) (§ 667(a)) and 1385, subdivision (b) (§ 1385(b)) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the former versions of sections 667(a) and 1385(b), courts were required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony . . . ." (Former § 667(a).) The court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (Former § 1385(b).)
Defendant was sentenced on July 17, 2019, after Senate Bill 1393 went into effect. At sentencing, defense counsel raised the fact that the trial court had discretion to strike the five-year prior serious felony enhancement and specifically requested that the court exercise this discretion to so strike the enhancement. As previously explained, the trial court declined to do so, noting defendant's current offense was dangerous and traumatizing to the victims.
We are unable to locate a published opinion from any court that has decided what standard of review applies to review of a trial court's decision not to exercise its newfound discretion under amended section 667. As noted by the parties, we conclude that abuse of discretion is the proper standard. We agree with the reasoning in Carmony, which held that a court's decision not to exercise its discretion under Romero should be reviewed for abuse of discretion. "'Discretion is the power to make the decision, one way or the other.'" (Carmony, supra, 33 Cal.4th at p. 375, quoting People v. Myers (1999) 69 Cal.App.4th 305, 309.) "[A] court's decision to strike a qualifying prior conviction is discretionary. [Citation.] As such, a court's decision not to strike a prior necessarily requires some exercise of discretion." (Carmony, at p. 375.) Though the court in Carmony was considering a court's discretion to strike a prior strike conviction, the same discretionary rules apply here. This is also consistent with the approach courts have taken regarding similar instances where amendments to the law granted trial courts greater sentencing discretion. (See People v. Pearson (2019) 38 Cal.App.5th 112, 115-116 [applying abuse of discretion standard when reviewing trial court's decision not to strike a firearm enhancement when it had the discretion to do so].)
Defendant offers the same arguments challenging the court's decision not to strike the five-year enhancement as an abuse of discretion as he does in challenging its decision to deny his Romero motion. We find defendant's arguments here unavailing for the same reasons articulated above. As discussed above, the trial court properly considered the circumstances of defendant's present crime, his prior convictions, and his background, character, and prospects when it exercised its discretion to impose the five-year prior serious felony enhancement.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.