Opinion
E050585 Super.Ct.No. RIF147217
08-18-2011
THE PEOPLE, Plaintiff and Appellant, v. CARL FRANKLIN ELLISON, Defendant and Appellant.
Rod Pacheco, District Attorney, Rebecca Marie Madrid and Gregory R. Albright, Deputy District Attorneys, for Plaintiff and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, William M. Wood, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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OPINION
APPEAL from the Superior Court of Riverside County. Harold F. Bradford, Judge. (Retired judge of the Alpine Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions.
Rod Pacheco, District Attorney, Rebecca Marie Madrid and Gregory R. Albright, Deputy District Attorneys, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, William M. Wood, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Defendant Carl Franklin Ellison was the getaway driver for two armed robberies committed by Treval Lockett, one in Moreno Valley and the other in Riverside, within the span of a few hours on November 1, 2008. Upon leaving the last robbery, defendant and Lockett were involved in a high-speed chase that culminated in defendant crashing the car they were in. Lockett pleaded guilty to the two robberies and personal arming enhancements prior to trial and testified at defendant's trial. Defendant was convicted of two counts of robbery, with principal arming enhancements, and one count of felony evading a peace officer. He also admitted that he had suffered three prior serious or violent felony convictions.
Both defendant and the People appeal the judgment. Defendant claims on appeal as follows:
1. The trial court erred by failing to instruct the jury that Lockett was an accomplice as a matter of law pursuant to CALCRIM No. 335.
2. He did not properly waive his rights in admitting the truth of his prior convictions.
3. He was improperly sentenced to a full-term consecutive sentence rather than one-third of the middle term on the conviction for evading a police officer.
The People contend on appeal as follows:
1. The trial court abused its discretion in striking all three of defendant's prior strike convictions pursuant to People v. Superior Court (Romero)13 Cal.4th 497 (Romero).
I
PROCEDURAL BACKGROUND
Defendant was convicted of two robberies (Pen. Code, § 211; counts 1 & 3) and felony evading of a peace officer (Veh. Code, § 2800.2; count 2). The jury also found true the special allegation that a principal was armed with a firearm during the commission of the robberies in counts 1 and 3 (§ 12022, subd. (a)(1)). In a bifurcated proceeding, defendant admitted he had suffered three prior serious or violent felony convictions (§§ 667, subds (c), (e)(2)(A)) & 1170.12, subd. (c)(2)).
All further statutory references are to the Penal Code unless otherwise indicated.
Pursuant to Romero, the trial court struck all three of defendant's prior convictions before sentencing. Defendant was sentenced to the midterm of three years on count 1, plus one year for the principal weapons use enhancement. Defendant was sentenced to the full midterm of two years on count 2, which was ordered to run consecutive to the sentence on count 1. A four-year concurrent sentence was imposed on count 3. Defendant received a total sentence of six years in state prison.
II
FACTUAL BACKGROUND
A. Lockett's Testimony
Treval Lockett was originally charged as a codefendant in the instant case but pleaded guilty prior to trial. Lockett did not understand why defendant was on trial, because Lockett had accepted responsibility for the robberies.
Lockett met defendant through defendant's fiancée, with whom Lockett was good friends. On November 1, 2008, Lockett was driving in Moreno Valley looking for a place to rob. He had recently lost his home, had six children and a wife to support, and was desperate. He needed rent money. He lived in Chino but drove to Moreno Valley to commit the robberies so no one would recognize him. Lockett's mother had rented the car he was driving for him because his other cars had been repossessed.
Lockett received a phone call from defendant's fiancée asking him to pick up defendant, who needed a ride from Moreno Valley because his car had broken down. Lockett picked up defendant, and they went to a restaurant to eat.
Lockett waited in the car while defendant went into the restaurant. While in the car, Lockett noticed a Best Western motel nearby. He decided it was a good place to rob. He went into the Best Western and robbed the clerk at gunpoint; he was back in the car before defendant returned from the restaurant. Defendant knew nothing about the robbery.
Lockett identified several photographs taken from the surveillance video at the Best Western that showed him robbing the clerk at gunpoint. He indicated that he only got a "couple hundred bucks." Lockett made a circuitous route back to the car and sat in the car waiting for defendant to come out of the restaurant.
Lockett did not recall telling officers after he was apprehended that defendant had picked him up from the Best Western robbery.
When defendant returned to the car, Lockett asked him to drive because he was still shaken up by the robbery. He also claimed he was high on methamphetamine.
Defendant started to drive them to defendant's home. As defendant was driving, Lockett asked him to make a detour to the AutoZone store on Van Buren Boulevard in Riverside. Lockett told defendant that he needed to pick up a part for his car. Actually, Lockett wanted to go to the AutoZone because he did not get enough money at the Best Western and intended to rob the AutoZone.
When they arrived at the AutoZone, defendant parked away from the front door. Lockett went into the AutoZone alone and brandished his weapon. He was wearing a baseball hat and put a bandana over his face. He demanded all the money from the register, drop boxes, and safe. The clerk emptied all the money in the store into a trash can. Lockett walked out the front door carrying the trash can. He placed the trash can in the back seat; he did not believe that defendant saw what was in it.
Lockett had been wearing the bandana around his neck the entire night and pulled it up over his face when he entered the store.
Lockett said nothing to defendant. Defendant started the car and exited the parking lot of the AutoZone. A police car started to follow them. Lockett thought it was just a "fluke" that the police were behind them. He reached back and brought the trash can to the front of the car and started transferring the money from the trash can to his backpack. It was then that defendant saw the money and Lockett's gun. Lockett told defendant he had robbed the Best Western and AutoZone.
Lockett and defendant panicked. Defendant drove at a high rate of speed. Their car crashed. Lockett got out of the car and started to run but was apprehended. Defendant was hurt and could not exit the car. Lockett denied that defendant was his getaway driver.
B. Other Witness Testimony
On November 1, 2008, Kevin Obermoeller was working at the AutoZone. Around 8:00 p.m., Lockett walked in with a bandana over his face carrying a silver pistol. Lockett said, "Do you know what the fuck this is?"; Obermoeller and another employee put up their hands. Obermoeller opened all the cash registers, and Lockett dumped the cash register drawers into the trash can.
Obermoeller also opened the safe for Lockett. Lockett was given approximately $1,800. Obermoeller called the police as soon as Lockett left and gave a description of the getaway vehicle.
Riverside Police Lieutenant Charles Griffitts was in the vicinity of the AutoZone that night. As he was driving by the location of the AutoZone, he noticed a small car with no headlights on leaving the parking lot at a rapid pace. Lieutenant Griffitts followed the car intending to make a traffic stop to find out why the car's lights were not on. The car then turned on its lights but moved into oncoming traffic to pass a truck. It was then that Lieutenant Griffitts received information that the AutoZone had just been robbed.
Riverside Police Officer Jeffery Putnam received a radio broadcast regarding the car being driven with no lights on and was in the same vicinity. At the same time, there was a call that a robbery had just taken place at the nearby AutoZone.
Officer Putnam observed the car, driven by defendant, move into the oncoming traffic lane to pass a truck. He pulled behind defendant and activated his overhead lights. He estimated defendant was traveling at 80 to 90 miles per hour; the posted speed limit was 40 miles per hour. Defendant ended up going up on a concrete median and crashing into a tree in the median.
Riverside Police Detective Mike Medici interviewed Lockett that night at the police station. Lockett told Detective Medici that defendant waited in the car outside a restaurant near the Best Western while he went inside the motel. Lockett told defendant he was visiting someone in the rooms. Lockett called defendant on his cellular telephone after he committed the robbery, and defendant picked him up by the hotel.
Lockett told Detective Medici in the interview that he kept the trash can filled with money taken from the AutoZone in the front seat with him and that defendant had no idea Lockett was going to commit the robberies at the Best Western and AutoZone.
Inside the car after it crashed, the trash can, a backpack, and money were found. The trash can was in the front seat.
Lockett was called by the defendant. Lockett testified that he never told Detective Medici that defendant had assisted him in anyway or even knew about the Best Western robbery. Lockett never told anyone that defendant was his getaway driver. Lockett felt bad that defendant was involved and charged with him.
III
ACCOMPLICE TESTIMONY
Defendant contends that the trial court erred by failing to instruct the jury that Lockett was an accomplice as a matter of law pursuant to CALCRIM No. 335 and that his testimony must be corroborated. The People concede the error but argue that it was harmless.
"A conviction can not [sic]be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.)
Whenever the evidence is sufficient to warrant the jury conclusion that a witness was an accomplice, "the trial court must instruct the jury, sua sponte, to determine whether the witness was an accomplice. [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 982.) However, "the court should instruct the jury that a witness is an accomplice as a matter of law when the facts establishing the witness's status as an accomplice are '"'clear and undisputed.'"' [Citation.]" (People v. Williams (2008) 43 Cal.4th 584, 636.)
CALCRIM No. 335, the accomplice-as-a-matter-of-law instruction, provides in pertinent part that a statement by an accomplice can be used to convict the defendant if "1. The accomplice's (statement/ [or] testimony) is supported by other evidence that you believe; 2. That supporting evidence is independent of the accomplice's (statement/[or] testimony); [¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime[s]." It also instructs, "Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the witness testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime." (Ibid.)
The People concede, and we agree, that Lockett was an accomplice as a matter of law. As such, the trial court should have instructed the jury sua sponte with CALCRIM No. 335. It failed to do so, and that failure was error.
"Error in failing to instruct the jury on consideration of accomplice testimony at the guilt phase of a trial constitutes state-law error, and a reviewing court must evaluate whether it is reasonably probable that such error affected the verdict. [Citation.]" (People v. Williams (2010) 49 Cal.4th 405, 456.) The error is harmless where there is "sufficient corroborating evidence in the record." (People v. Whisenhunt (2008) 44 Cal.4th 174, 215.) The evidence may be slight and entirely circumstantial. (Ibid.)"Corroborating evidence 'must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.'" (People v. Sully (1991) 53 Cal.3d 1195, 1228.) Corroborating evidence is sufficient even if slight and entitled to little consideration standing alone. (People v. Sanders (1995) 11 Cal.4th 475, 535.)
Here, there was strong corroborating evidence that defendant aided and abetted the robbery at the AutoZone even without Lockett's testimony. Obermoeller testified that he was robbed and that the car that the robber got into was the one driven by defendant. Defendant parked away from the front door of the location. Defendant quickly drove out of the AutoZone parking lot, even before he saw the police, and had his lights off. Immediately upon seeing the police, defendant took off at a high rate of speed in an attempt to evade the officers. Although Lockett stated that defendant had no idea that he was going to rob the AutoZone, the jury could reasonably infer based on defendant's actions of parking away from the front of store, exiting the parking lot without his lights on, and speeding away from police that he aided and abetted the AutoZone robbery.
Moreover, although the corroborating evidence that defendant participated in the Best Western robbery was slight and entirely circumstantial, it was enough to corroborate that defendant acted as the getaway driver for the Best Western robbery. The only evidence of defendant's involvement in the robbery came from Lockett's own testimony that defendant was in a restaurant near the Best Western during the robbery and that he had no knowledge of the robbery. Photographs from surveillance video showing the robbery was shown to the jury, and Lockett identified himself from the photographs. The
corroborating evidence in this case was that defendant acted as getaway driver for Lockett right after the Best Western robbery. Lockett committed the AutoZone and Best Western robberies in the same manner. He entered the locations leaving defendant in the car, brandished a weapon, took the money from the clerk, and ran out. The fact defendant was involved in the robbery at the AutoZone, which occurred right after the Best Western robbery, corroborated Lockett's testimony that defendant was driving his car from the Best Western robbery. The jury could reasonably reject the portion of Lockett's testimony that defendant did not have knowledge of the robbery and conclude that defendant acted as the getaway driver during the Best Western robbery. Accordingly, any failure by the trial court to not instruct the jury that Lockett was an accomplice as a matter of law was harmless.
IV
WAIVER OF JURY TRIAL ON PRIOR CONVICTIONS
Defendant contends that he was misled and did not submit a proper waiver of his rights to a jury trial, against self-incrimination, and to confront his accusers on the prior convictions.
A. Additional Factual Background
During trial, the prosecutor noted, "Your Honor, for the record, . . . there hasn't been an indication that this is a bifurcated trial, so I'm going to need to prove up the defendant's priors with the jury, unless they . . . bifurcate it right now." Both the trial court and defense counsel noted that it was dependent upon defendant's conviction. The prosecutor then stated, "But right at the beginning of the trial, we need to know whether this is going to be bifurcated trial. Are the strikes being bifurcated, . . . which means I have to prove them up in my case-in-chief if they are not bifurcated. Or if they are bifurcated, we need to know whether they want a jury trial or a court trial on it." Defense counsel stated they had a pending Romero motion and would probably have a court trial at the same time the Romero motion was heard. The prosecutor then stated that there had to be a waiver from defendant on the record. Defense counsel told the trial court that it would not be necessary to keep the jury if there were guilty verdicts and that a jury would be waived.
Later, defendant's counsel made a formal motion to bifurcate the trial on the prior convictions. Defense counsel again stated that defendant was waiving a jury trial. After the jury verdict, defense counsel allowed the jury to be excused. Defense counsel explained that he wanted a trial on the prior convictions, but a jury trial was not necessary. The trial court noted, "You already waived jury. So what we will do is set it for a court hearing on the priors." Defense counsel noted that he was not challenging that the priors existed but was arguing that they should be stricken.
At the next hearing, defendant admitted he had three prior convictions consisting of robbery (§ 211), second degree murder (§ 187), and kidnapping (§ 209, subd. (b)). No admonitions as to defendant's rights were given by the trial court.
B. Analysis
Here, as conceded by the People, no admonitions were given to defendant prior to his admitting the truth of the prior convictions. Under In re Yurko (1974) 10 Cal.3d 857, "before a court accepts an accused's admission that he has suffered prior felony convictions," it must give him "express and specific admonitions as to the constitutional rights waived by an admission." (Id. at p. 863.) These rights are threefold: ". . . 'First, is the privilege against self-incrimination guaranteed by the Fifth Amendment. . . . Second, is the right to trial by jury. . . . Third, is the right to confront one's accusers. . . .' [Citation.]" (Id. at p. 863, fn. 5.) The failure to give any or all of these admonitions is harmless error "if the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances. [Citations.]" (People v. Howard (1992) 1 Cal.4th 1132, 1175; accord, People v. Mosby (2004) 33 Cal.4th 353, 360-361.)
In Howard, the defendant waived his right to a jury trial but was given no other admonitions. The court noted that the record "affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction and, thus, not to incriminate himself. The court specifically informed defendant that he had a right to force the district attorney to prove the prior conviction in a trial and that, in such a trial, he would have the rights to a jury and to confront adverse witnesses. The admonitions were not empty words because defendant was actively represented by counsel and preparing for trial on charges to which he had pled not guilty. Moreover, there was a strong factual basis for the plea." (People v. Howard, supra, 1 Cal.4th at p. 1180, fn. omitted.) On the record before it, the Howard court concluded defendant's admission of the prior conviction was voluntary and intelligent, despite the absence of an explicit admonition on the privilege against self-incrimination. (Ibid.)
In Mosby, immediately after the jury found the defendant guilty, he was informed of his right to a jury trial on the prior allegation. The trial court did not advise him of his rights to remain silent and to confront witnesses. Our Supreme Court noted: "[U]nlike a trial on a criminal charge, trial on a prior conviction is 'simple and straightforward,' often involving only a presentation by the prosecution 'of a certified copy of the prior conviction along with the defendant's photograph [or] fingerprints' and no defense evidence at all. [Citation.]" (People v. Mosby, supra, 33 Cal.4th at p. 364.) It noted that the defendant was represented by counsel and had just undergone a jury trial. The court concluded: "Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (Ibid.) Based upon the totality of the circumstances, the court held that the defendant had voluntarily and intelligently admitted the truth of the prior conviction allegations despite the fact that he had only been advised of and waived his right to a jury trial on that issue. (Ibid.)
The circumstances in the instant case are remarkably similar to those in Mosby. Initially, although defendant did not personally waive his right to a jury trial on the priors, his counsel submitted such waiver. In a bifurcated proceeding such as the instant case, no state constitutional violation occurs if a defendant does not personally waive his right to a jury trial on the prior convictions. (People v. Thomas (2001) 91 Cal.App.4th 212, 215.) Additionally, "[n]o federal constitutional violation occurred because defense counsel waived defendant's state statutory right to a jury trial." (Id. at p. 223.) Moreover, defendant was well aware of his right to a jury trial on the priors. The prosecutor, in defendant's presence, stated that unless defendant waived his right to a jury trial it would have to prove the priors to the jury.
Defendant was represented by counsel and had just undergone a jury trial, at which he did not testify. Thus, he was aware of his right to remain silent. Furthermore, at trial he confronted witnesses through counsel. Thus, he understood that he had the right of confrontation. In addition, defendant had a history with the criminal justice system. Therefore, he had "'"knowledge and sophistication regarding his [legal] rights."' [Citations.]" (People v. Mosby, supra, 33 Cal.4th at p. 365, fn. omitted.)
Moreover, as in People v. Howard, supra, 1 Cal.4th at page 1180, there was a "strong factual basis for the plea," in this case. Judge Webster testified extensively about defendant's convictions of robbery, kidnapping and murder that constituted the prior strikes. Additionally, the People submitted the section 969b packet at the Romero hearing.
Based on the foregoing, under the totality of the circumstances, defendant knowingly and intelligently entered a guilty plea to the prior convictions.
V
SENTENCING ERROR
Defendant contends that he was improperly sentenced on count 2, the evading a police officer conviction, to a full-term consecutive sentence. The People concede the error.
At sentencing, the trial court stated that it was going to impose the midterm of two years for the evading a police officer charge to run consecutively to the robbery in count 1. Defendant was sentenced to a consecutive term of two years for evading a police officer.
Penal Code section 1170.1, subdivision (a) provides that when a consecutive term of imprisonment is imposed, "[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed . . . ." Vehicle Code section 2800.2 does not prescribe the punishment for a felony offense. Hence, under Penal Code section 18, the middle term would have been two years. Defendant was sentenced to the full middle term of two years. He should have been sentenced to one-third the middle term, or eight months. However, since we are remanding the instant case for resentencing as discussed, post, we vacate the sentence on count 2 and remand for further proceedings.
Defendant erroneously states that one-third of the middle term would be one year four months.
VI
ROMERO MOTION
The People contend that the trial court abused its discretion by dismissing all of defendant's prior strike convictions.
A. Factual Background
Defendant filed a written motion to dismiss the three prior strikes. The People opposed the motion. At the hearing on the Romero motion, Judge Edward Webster testified. In 1982, Judge Webster was a deputy district attorney and prosecuted defendant's case that encompassed all of his prior strike convictions. The offenses were committed on January 5, 1981. Defendant was tried with a codefendant, Richard Boyd, who was defendant's uncle. Defendant initially confessed to the police that he was the perpetrator of the kidnapping and murder of the victim, Dickie Gibson. However, defendant could not provide details of the crime; Boyd did know the details. It became clear through the investigation that Boyd had perpetrated the crime.
The crime involved a robbery at a 7-Eleven store. In a prior robbery committed by Boyd at the store, he had taken the clerk to a nearby field but did not kill him. In the Gibson robbery, Boyd and defendant took the clerk to the same field and killed him. Boyd was a career criminal, and defendant had only one prior conviction, for possessing a switchblade. In its verdict, the jury determined that Boyd killed Gibson. The evidence established that defendant only participated by driving Boyd to the 7-Eleven and then driving to the field. Defendant was convicted of first degree murder based on felony murder during the commission of a robbery.
Defendant's sentence was later reduced to second degree murder. At the time of the crime, defendant was 18 or 19 years old. Judge Webster felt that defendant had been improperly influenced by Boyd. Judge Webster had written on behalf of defendant to the parole board when he was a sitting judge in support of defendant's being granted parole. He had not done that for anyone else in his career. It was Judge Webster's opinion at the time that had it not been for Boyd defendant would not have committed the crimes against Gibson. Judge Webster admitted he had been wrong when he wrote the letter to the parole board that defendant would not commit another crime.
The gun used in Gibson's killing belonged to defendant and was found in his home after the crime. The car used also belonged to defendant. Four shots were fired at Gibson. There were three sets of footprints at the scene of the crime showing that defendant was near the crime scene at some point. Judge Webster believed that defendant knew about the robbery of the 7-Eleven since he provided his gun and car.
The People presented evidence that defendant was paroled from prison on November 30, 1994. Between 1995 and 2002, he violated his parole seven times, each time being sent back to prison. Defendant was finally discharged from parole in July 2002. There was no evidence of the type of violations.
Defense counsel argued that the length of time that had passed since the last conviction and the fact that he had not committed any other substantive offenses for 30 years, plus the circumstances of the priors, warranted striking the prior convictions.
The People relied on People v. Williams (1998) 17 Cal.4th 148 (Williams). First, the People looked to defendant's background and criminal history. He was a major participant in the robbery and kidnapping of Gibson. He was liable for the murder of Gibson under the felony-murder rule. He drove Boyd and supplied the gun. Defendant posed a risk to society as shown by the new offenses of armed robbery.
As for his prospects, defendant had been unemployed since 2007 due to a disability. He admitted to using marijuana and methamphetamine since 1994. He had no family members supporting him. In the instant case, defendant aided and abetted two armed robberies and drove 80 to 90 miles per hour in an effort to evade police. The People argued defendant already received a break in the prior case and did not deserve one now.
The trial court first confirmed that defendant had finally been released from parole in 2002. It noted that this was not an easy decision to make. All of the prior strikes were committed over the course of "one unfortunate night when an innocent victim was kidnapped, was robbed, and was murdered." The trial court also noted that in the case before it, defendant was not the direct perpetrator. The previous strikes had been committed 28 years prior to the current offenses. Although defendant had violated his parole, there was no evidence he committed any substantive offenses; the violations appeared to be technical offenses.
The trial court noted that the three strikes law was aimed at locking away "felons who cannot seem to stop repeatedly injuring or threatening injury to members of the public." Defendant had committed only two criminal acts in his entire life and in both offenses he was only the aider and abettor. The trial court ruled, "We contrast that with the obligation on the part of the Court to see that justice is done, and it is more than just an abstract justice that needs to be done. It has to be justice in the sense of what is a fair administration of the criminal justice system to serve its purposes to apprehend and punish those who do wrong, to make restitution to those who are offended and damaged, and to try to deter future conduct. Punishment and deterrence work hand in hand in the system. It is the Court's obligation to do its best to see that punishment is not excessive.
The Constitution has for the entire life of this country prohibited cruel and unusual punishments. And whether it is for better or for worse, it is for legal scholars and philosophers other than me to determine. But the three-strikes law in many applications can result in a very cruel and a very unusual punishment for the type of offense that a man has been convicted of. [¶] Having said all that, this court is going to grant the motion that was made pursuant to People versus Romero and is going to strike the three strikes from consideration in the sentencing of this defendant."
The People commented on the court's statement that defendant had not committed any other crimes in a 28-year period by reminding the court that he had been in prison between 1982 and 1994, and that time could not count toward crime-free time, so he had really only been crime free for a period of 14 years, not 28 years. The trial court did not address the issue. At the end of sentencing, the trial court admonished defendant not to associate with "very bad people" anymore.
B. Analysis
We review the trial court's ruling striking a prior conviction for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 504.)
"'The governing canons are well established: "This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]" [Citation.] . . . "[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." [Citation.]' [Citation.] [¶] The abuse of discretion standard 'is deferential. . . . But it is not empty.' [Citation.]" (People v. Gaston (1999) 74 Cal.App.4th 310, 314-315.)
In other words, that discretion, while broad, is by no means absolute. Its exercise must proceed in strict compliance with section 1385, subdivision (a)'s direction that the dismissal be in furtherance of justice and requires consideration of both the constitutional rights of the defendant and the interests of society represented by the People. "'At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." [Citations.]' [Citation.] 'Courts have recognized that society, represented by the People, has a legitimate interest in "the fair prosecution of crimes properly alleged." [Citation.]'" (Romero, supra, 13 Cal.4th at pp. 530-531.)
It is an abuse of discretion for a trial court to dismiss prior strike convictions "'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant.'" (Romero, supra, 13 Cal.4th at p. 531.) "The purpose of [the Three Strikes law] is to deter and punish recidivism by making repeat offenders serve longer sentences. [Citation.]" (People v. Williams (1996) 49 Cal.App.4th 1632, 1638.)
Here, we must determine whether the reasons given by the trial court are a reasonable basis for concluding that defendant should be deemed outside the spirit of the three strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 336 (Strong))
The leading case on how the trial court can and should exercise this discretion is Williams, supra, 17 Cal.4th 148. There, in 1995, the defendant was charged with and ultimately found guilty of driving under the influence of PCP (phencyclidine). (Id. at p. 152.) His criminal record had begun in the 1970's, with four juvenile adjudications for burglary. (Id. at p. 153.) In the 1980's, he was convicted of one misdemeanor and four felonies, including the two strike priors, and he repeatedly violated parole. Between 1991 and 1995, he suffered seven misdemeanor convictions. He had been arrested for assault with a deadly weapon, but this had resulted in parole revocation, not a criminal conviction. (Id. at p. 154.) He was unemployed. He had a substance abuse problem, which he had not addressed effectively. (Id. at p. 155.)
The trial court chose to dismiss one of the defendant's two strike priors. It explained that the "'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.'" (Williams, supra, 17 Cal.4th at p. 156.)
The Supreme Court held this was an abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.) It held that in ruling whether to strike or vacate a prior conviction allegation, the 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 and hence should be treated as though he had not previously been convicted of the prior crimes. (Id. at p. 161.)
In holding that the defendant in Williams could not be deemed outside the spirit of the three strikes law, the Supreme Court explained, "As to his present felony: It is a conviction of driving under the influence that followed three other convictions of driving under the influence; 'the existence of such convictions reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable — but had failed or refused to learn his lesson' [citation]. As to his prior serious and/or violent felony convictions: The record on appeal is devoid of mitigation." (Williams, supra, 17 Cal.4th at p. 163.)
Moreover, the court noted that there were few favorable factors about Williams's background, character, or prospects. Although Williams had 13 years between his prior convictions and his present felony, the court found this to be insignificant because he did not refrain from criminal activity during that span of time. During those 13 years, the court noted that Williams was often in prison or jail. When he was not, he violated parole and probation. (Williams, supra, 17 Cal.4th at p. 163.) Therefore, the Supreme Court held that "the superior court's order fell outside the bounds of reason under the applicable law and the relevant facts." (Id. at p. 164.)
Several other courts after Williams have concluded that it would be an abuse of discretion or it was an abuse of discretion to dismiss the defendant's strikes. (See, e.g., People v. Thornton (1999) 73 Cal.App.4th 42, 49 [reversing order dismissing two of three strikes, where defendant had a long history of felonies, misdemeanors, drug use, and parole violations, which showed that his background, character, and prospects were "dismal, and cannot be said to be outside the spirit of the three strikes law"]; People v. Barrera (1999) 70 Cal.App.4th 541, 554-555 [the court's refusal to dismiss one of defendant's two 14-year-old strikes was justified by defendant's drug addiction, his criminal history, including 11 different misdemeanors within the past seven years, three prior felonies, and numerous probation and parole violations]; People v. McGlothin (1998) 67 Cal.App.4th 468, 475 [reversing dismissal of strike where defendant's criminal history "extends back to 1972 when he was 15 years of age," including seven previous felonies, various misdemeanors, and seven parole and probation violations over 13 years].)
We conclude it was an abuse of the trial court's discretion in this case to find that defendant was outside the sentencing scheme of the three strikes law. The only factor distinguishing defendant from the numerous cases cited above is that defendant did not commit further felonies or misdemeanors after the prior offenses and before the current offenses. Defendant may have had only one prior crime spree, but he committed the most heinous of crimes: first degree murder, robbery, and kidnapping. He provided the car and gun used in those crimes. It was merely fortuitous that his sentence was reduced to second degree murder. The trial court improperly downplayed the seriousness of defendant's prior convictions finding that he was only an aider and abettor. However, defendant not only provided his car for the crimes, but also the gun. His footprints were found near the victim. Defendant was inextricably involved in the robbery, kidnapping, and murder of the 7 Eleven clerk, Gibson.
Further, the saying that "no good deed goes unpunished" certainly applies in this case. Judge Webster believed that defendant was unduly influenced by Boyd in committing the robbery, kidnapping, and murder of Gibson. Defendant was given a gift by Judge Webster and the parole board by being released after only 12 years for his heinous crimes. Rather than take this gift and cherish it by making a life for himself and his family, he violated his parole no less than seven times and was in and out of prison for the eight years between 1994 and 2002. The trial court appeared to rely on the fact that these were only "technical" violations of parole. However, these parole violations were serious enough to warrant defendant's return to prison. Although defendant apparently remained crime free between 2002 and 2008, he aided and abetted two armed robberies in this case, and he engaged in a high-speed chase with speeds topping 90 miles per hour and crossing over into oncoming traffic. Lockett certainly did not force defendant to engage in such risky behavior.
Finally, defendant's prospects were not good. There were no family members at the hearing to support him. He had been unemployed since 2007.
We note that the three strikes law is aimed at recidivists who have committed serious offenses. None are more serious than murder, robbery, and kidnapping. In this case, defendant's prior crimes were clearly violent. The reasons the trial court cited for dismissing defendant's three strikes did not support its conclusion that defendant should be deemed to be outside the spirit of the three strikes law. Although the priors were 28 years old, he spent 12 years in prison for the offenses and then was in and out of prison on parole violations for eight years after that. That he apparently had six years of no further criminal activity is not enough to find that his is the extraordinary case and should be deemed outside the spirit of the three strikes law.
The trial court appeared to rely on the fact that defendant's sentence would constitute cruel and unusual punishment. Defendant essentially received a six-year sentence (which as explained ante, should have been four years eight months) for two armed robberies committed against two separate victims and evading a police officer. Receiving a sentence of 25 years to life for these crimes, with prior crimes of kidnapping, murder, and robbery, certainly would not shock the conscious so as to constitute cruel and unusual punishment.
We express no opinion as to whether the trial court could have struck some of the priors in this case, as it was not raised below or on appeal. Further, since the trial court's sentence on count 2 was erroneous, as set forth ante, we believe remanding for resentencing so the trial court can exercise its discretion in accordance with this opinion is appropriate.
VII
DISPOSITION
We reverse the trial court's decision to strike defendant's three prior serious or violent felony convictions. We also vacate defendant's sentence on count 2. We remand for resentencing in accordance with the opinion. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.