Opinion
H036325 Santa Clara County Super. Ct. No. BB941410
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. PETER FERDINAND PEARSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Peter Ferdinand Pearson pleaded no contest to five counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and one count of attempted robbery (§§ 664, 211, 212.5, subd. (c)). He also admitted having suffered nine prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12), having one prior serious felony conviction (§ 667, subd. (a)), and having served two prior prison terms (§ 667.5, subd. (b)). After the trial court denied defendant's motion to strike his strike priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the court sentenced him to 150 years to life consecutive to 30 years.
Further unspecified statutory references are to the Penal Code.
Before defendant entered his no contest pleas, the trial court explained the nature of a Romero motion, which defendant anticipated filing. During this explanation, the court stated that defense counsel would "argue on [defendant's] behalf to the fullest extent he can with a straight face . . . ." (Italics added.) On appeal, defendant contends that this statement "plainly indicates that the court decided to deny [his] Romero motion" before it was even filed. He argues that the court's "pre-judgment" was an abuse of discretion and denied him due process under the state and federal constitutions. Defendant further contends that the issue is cognizable on appeal even though he did not raise any objection in the trial court. Defendant seeks to have the judgment reversed and the matter remanded for a new Romero hearing before a different judge.
For reasons we will explain, we will affirm the judgment.
BACKGROUND
The Offenses
As defendant was convicted by plea, the summary of his offenses is taken from the probation report, which was based on police or public safety reports from Santa Clara, Mountain View, and Sunnyvale.
On May 28, 2009, defendant entered a bank in Santa Clara and demanded money at a teller counter. He also stated, " 'This is an actual robbery.' " Defendant took $1,920 in cash and fled the bank.
On or about May 30, 2009, defendant entered a bank in Mountain View and told a teller to follow his written note, which included a demand for money. The note also said something to the effect of " 'Don't do anything stupid, so that no one gets hurt.' " Defendant eventually took the note and $1,250 in cash and left the bank.
On June 2, 2009, defendant entered a bank in Sunnyvale and put a written note on a teller counter. The note included a demand for money, as well as the statements, " 'Do not do anything stupid. I DO NOT want to hurt you.' " Because defendant's hand was in his pocket, the teller believed defendant had a gun in his pocket. Defendant ultimately exited the bank, taking his written note and $1,150 in cash.
On June 5, 2009, defendant entered a bank in Mountain View and placed a written note on a teller's counter. The note included a demand for money, as well as the statement, " 'Don't do anything stupid.' " More than once, defendant told the teller, " 'Hurry up. Don't do anything stupid. Don't push any buttons.' " At some point, the teller bent down to retrieve money and when she stood up, the note was gone. Defendant grabbed $2,145 in cash and exited the bank.
On June 8, 2009, defendant entered a bank in Sunnyvale and put a written note demanding money on a teller counter. The teller, who "had been in this situation before," began studying the defendant and the note so he could provide a "good description" to the police. Defendant told the teller, "I have a gun," but the teller did not see any weapon. Defendant also repeatedly demanded money. The teller told him that the bank did not " 'have cash here' " and that the teller could not " 'open the dispenser.' " Defendant continued to "ask for money several more times before becoming frustrated." He took his written note and eventually exited the bank without taking any cash. Another bank employee called the police and reported that he had seen an orange cab leave the bank's parking lot and travel on El Camino Real towards Mountain View.
Minutes later, defendant entered a bank in Mountain View. A teller was counting money and had $275 on the counter. Defendant displayed a handwritten note demanding money. He eventually grabbed the cash on the counter and left the bank. Another bank employee had seen defendant arrive and leave the bank in a taxi cab. The taxi driver was located and questioned on separate occasions by officers from the Sunnyvale Department of Public Safety and from the Mountain View Police Department. After further investigation, Mountain View police found defendant at a hotel on June 10, 2009. He initially denied committing the robberies but later admitted committing all five bank robberies and attempting the robbery in Sunnyvale.
The Amended Complaint
In June 2009, defendant was charged by first amended complaint with five counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 1 - 5) and one count of attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 6). The information further alleged that defendant had nine prior convictions for robbery and attempted robbery that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12), that he had one prior serious felony conviction (§ 667, subd. (a)), and that he had served two prior prison terms (§ 667.5, subd. (b)).
The Plea
At a hearing on January 25, 2010, the trial court stated that it was the court's understanding that defendant wanted to "plead to the sheet with the intent of bringing appropriate Romero motions, et cetera in due course." Defense counsel confirmed the court's understanding and stated that defendant "will be pleading as charged, admitting all strike priors, the Prop. 8 prior and the two prison priors, and it would be a full probation report, waive time and ask for time to file the [section] 1385 motion." The court then proceeded to advise defendant of certain rights and consequences, and to question him concerning those rights and his plea.
During the course of the advisements to defendant, the trial court stated: "The way the process works, after you enter your plea, we'll not sentence you immediately. First, we will refer you to the adult probation department for what we call a full report and investigation and Romero recommendation as well. [¶] And that means that the probation department will send somebody to speak with you at length about the facts and circumstance of your life, about the facts and circumstances of these offenses, and they'll also contact the alleged victims to try to get their input on sentencing and on restitution issues, and [they will] prepare a formal report for the court. [¶] In your particular case, one would expect this report to be fairly lengthy. You may or may not cooperate with the probation department as you choose. Obviously it is probably in your best interest to cooperate with them to the full extent recommended by your attorney. [¶] I will read and review that report but will not [be] bound by their opinions or recommendations. It will just be guidance for me." Defendant stated that he understood this process.
The trial court next stated that after the probation report is received, "we will set the matter for a formal motion under Romero where the court would be asked to exercise its discretion to potentially strike the prior convictions for sentencing purposes so as to possibly reduce your sentence." Defendant again indicated that he understood this process.
Relevant to defendant's contentions on appeal, the trial court then stated: "There are no promises. There is no winks and nods here [sic]. This is going to be a formal litigated adversarial proceeding. Your attorney will argue on your behalf to the fullest extent he can with a straight face, and the DA is going to argue vehemently in opposition to any Romero motion. [¶] If at the end of the proceeding the court declines to grant the Romero motion, you will or could be sentenced to 182 years to life in prison. If the court grants the motion in part, you could still be sentenced to a substantial period of incarceration. At the very minimum, my understanding would be 32 years to life in prison would be the minimum possible, if I do my calculations correct. [Defense counsel] is looking at me." (Italics added.)
Defense counsel indicated that if the trial court struck several strikes and made defendant a "two-striker," he would receive a determinate term. The court agreed. Defense counsel then stated to the court, "And, in fact, you can grant him probation." The court responded, "That would be pretty unusual," whereupon defense counsel stated, "But it is possible that you could." The court agreed that "[t]heoretically it is possible." Shortly thereafter the court stated, "Okay. So I'm not going to go down that path anymore because I'm just going to sow confusion about what the minimum could be, but theoretically [defense counsel] is correct. It could be probation if all proper findings were made." The court thereafter explained to defendant the types of probation conditions that may be imposed and provided further advisement about other consequences of his plea.
Defendant eventually pleaded no contest to all five counts of robbery (§§ 211, 212.5, subd. (c)) and one count of attempted robbery (§§ 664, 211, 212.5, subd. (c)). He also admitted having suffered nine prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12), having one prior serious felony conviction (§ 667, subd. (a)), and having served two prior prison terms (§ 667.5, subd. (b)).
The Romero Motion
In July 2010, defendant filed a motion to strike his strike priors pursuant to Romero. In the motion, defendant acknowledged that he had 16 prior felony convictions and numerous prior misdemeanor convictions. The prior felony convictions included possession of cocaine and grand theft, as well as several convictions for second degree robbery, which qualified as strikes. As to those prior robberies, defendant asserted that he "did not use or simulate use of a weapon and never threatened anyone." Defendant described his upbringing, his family, his professional tennis career in the late 1970's to mid-1980's, and the impact that his drug addiction had on his life. He also identified the classes or programs that he recently took ("Roadmap To Recovery") or had completed in the past. Defendant referred to letters from friends that were attached to the motion concerning the positive impact he had on their lives and/or their wishes for his future. Defendant also quoted portions of the probation report concerning his " 'early plea,' " acceptance of culpability for his actions, expression of remorse towards the victims, a desire to commit to recovery, the fact that the instant offenses did not involve a weapon or physical force, his " 'turbulent childhood which negatively impacted him in his youth,' " and the fact that he was not a violent person. Defendant argued that his cocaine addiction alone made punishment "unwarranted." He contended that his "criminal activity had to do with obtaining money for his drug habit." Defendant also asserted that he had "contributed to his community through teaching tennis and working," that he wanted to "reestablish a relationship with his daughter," that he is "no danger to the community," and that he "just needs further rehabilitation."
The Opposition to the Romero Motion
The People filed opposition in October 2010. The People argued that this was the "third time" defendant had "faced a potential life-sentence pursuant to the Three Strikes law and such a sentence should finally be imposed." Regarding defendant's prior robberies, which occurred in the late 1990's, defendant was granted probation. The probation officer in that case, however, had recommended prison because defendant was on supervised probation at the time of the robberies and he "simulated a gun in several of the robberies." Defendant thereafter violated probation more than once. Further, in 2003, defendant was convicted of grand theft. The prosecutor in that case "agreed to dismiss" all but one of the prior robbery convictions. Defendant was sentenced to 32 months in prison and paroled in 2004. In 2005, he was arrested for possessing and being under the influence of cocaine. The prosecutor "later dismissed" all but one prior strike. The court "dismissed the remaining strike prior conviction" and defendant received a 16-month sentence. He was paroled in 2006. Defendant was again arrested in 2007 for possessing and being under the influence of cocaine. The prosecutor again "dismissed" all but one prior strike conviction, and the court "dismissed the remaining strike" and sentenced defendant to two years. He was paroled in late January 2009, and committed the current offenses beginning in late May 2009. Defendant's eight misdemeanor convictions include false information to a peace officer, tampering with a vehicle, petty theft, possession of controlled substance paraphernalia, being under the influence of a controlled substance, being drunk in public, and hit and run causing property damage.
Regarding the current offenses, the People observed that defendant had robbed several banks within a short period of time, and contended that he implicitly threatened the use of violence in most of the crimes. The People also observed that robbery is classified as a violent felony. In viewing the entirety of defendant's criminal history, the People stated that defendant "cannot . . . point to any significant period of law abiding conduct since his first felony conviction in 1993."
The People further asserted that defendant had "done little to bring [his cocaine] addiction under control, despite being given numerous opportunities to rehabilitate himself on probation and on parole." He had completed programs in 1993, 1997, and 1999, yet the current offenses were committed while he "was using cocaine 'nonstop.' " The People also contended that defendant continued to "rationalize and minimize his continued criminal behavior." The People argued that defendant had been given numerous chances in the past, and had "escaped a 25-year-to-life sentence three times already," yet he "lapsed back into the only lifestyle he knows - using illegal drugs and stealing to support his habit." The People maintained that defendant did not present any "compelling factor" regarding his background, character, or prospects that would justify the court striking any of his prior strike convictions.
The Probation Report
According to the probation report, defendant was born in 1955, was married twice, and had one daughter. Defendant described his childhood as "tense and full of fear" and characterized his mother as "very stern, demanding, and intimidating." He became a professional tennis player, but his career ended after he suffered a shoulder injury in 1982. He had his own business teaching tennis until 1994.
The probation report detailed defendant's prior criminal history, which included several robberies that were committed in late 1997 and early 1998, as well as multiple convictions for grand theft and possession of cocaine.
Regarding the most recent offenses, defendant indicated to the probation officer that he did not use a weapon. He spent all the money from the bank robberies on cocaine and his hotel bill. Defendant began using cocaine by at least 1980, and since the mid-1980's he had used cocaine " 'on and off once or twice a week." By the time of the instant offenses, "he had been using cocaine 'nonstop' for several weeks." Defendant had participated in more than one drug program, but since 1994, he "continued . . . a 'cycle' of behavior where he would experience brief sobriety, stability, and employment . . . before relapsing with alcohol and cocaine."
The probation officer reported that defendant "readily admitted remorse and responsibility for committing the instant offenses," but that he attempted to "rationalize and minimize his behavior." The probation officer further observed that although defendant was "again" asking for "leniency" and "another opportunity to address his addiction," prior "punitive measures and treatment opportunities" had been unsuccessful. The probation officer believed defendant "was a talented individual who lost a promising future as a result of his own self-sabotaging behavior." Further, "[g]iven . . . defendant's current sobriety, he does not present himself as a hardened individual who has divorced himself from society."
Nonetheless, the probation officer did not find any "compelling reason" to recommend granting the Romero motion. Among other things, the probation officer pointed to the nature and number of defendant's current offenses, which were committed only four months after he was paroled from prison; his numerous prior convictions; his unsatisfactory prior performance on probation and parole; his continual use of alcohol and drugs despite participation in multiple treatment programs; and the fact that he had previously benefitted from Romero motions in two recent cases, yet he committed the instant serious and violent felonies. The probation officer believed that defendant posed a "significant danger to society."
The Hearing on the Romero Motion and Sentencing
The hearing on defendant's Romero motion was held on October 21, 2010. At the hearing, the trial court indicated that it had received the probation report and the moving and opposition papers. The court also stated that it had considered the letters submitted by defendant's family and friends concerning his "good character and their hopes of his future." The court further stated that it had "reviewed various factors required to be considered by the appellate courts of this state . . . ." Defendant addressed the court and defense counsel submitted the matter on the motion papers. After hearing argument from the People, the court denied the motion.
The trial court explained: "The court has again read and considered all of the moving papers. I will also compliment all counsel and the probation department on doing a very, very thorough job of social history and inquiry of the circumstances as to the strike priors and relevant prior history.
"I note with pleasure the level of professionalism that all parties have demonstrated. In this matter the court is, to get to the bottom line, after considering all the relevant factors convinced that there is no basis upon which to grant the relief requested under the Romero decisions.
"Rather than being a non-violent crime where all of the factors brought to the court's attention by the defense might be compelling, in fact these are just five more violent and serious offenses after the defendant has been given a second chance, a third chance and fourth chance in the ten years since his strike priors were accumulated.
"The court could theoretically go through some sort of mental gymnastics to try to reduce the impact mandated by California sentencing statute but it would be disingenuous to do so. The law may be harsh, but the law has spoken, and, [defendant], notwithstanding the fact he's most likely a very fine fellow and loves his children, et cetera, falls squarely within . . . the so-called spirit of the three strikes law, and therefore must be sentenced accordingly."
The court sentenced defendant to prison for the indeterminate term of 150 years to life consecutive to the determinate term of 30 years. The determinate term consists of six five-year terms for the prior serious felony enhancements (§ 667, subd. (a)). The court stayed the sentences on the prison priors (§ 667.5, subd. (b)). Defendant was ordered to pay restitution, among other amounts.
DISCUSSION
The trial court stated to defendant, prior to his no-contest pleas and during an explanation of an anticipated Romero motion, that defense counsel would "argue on [defendant's] behalf to the fullest extent he can with a straight face . . . ." (Italics added.) On appeal, defendant contends that the statement indicates that the court "considered the notion that the motion might be granted to be laughable," and "plainly indicates that the court decided to deny [defendant's] Romero motion more than six months before it was even filed." He argues that "[s]uch pre-judgment was an abuse of the court's discretion, and denied [him] his right to due process under the California and federal Constitutions." Defendant seeks to have the judgment reversed and the matter remanded for a new Romero hearing before a different judge. Although acknowledging that he did not object in the trial court, defendant contends that the issue "is nonetheless cognizable on appeal."
The Attorney General contends that defendant has forfeited any claim of judicial bias because he failed to raise the issue in the trial court. The Attorney General further argues that the trial court did not abuse its discretion in denying defendant's Romero motion.
Before considering the substance of defendant's due process claim, we first address the Attorney General's contention that defendant forfeited that claim to the extent it is premised on judicial bias by failing to raise the issue in the trial court.
Forfeiture
In support of the forfeiture argument, the Attorney General cites People v. Lewis and Oliver (2006) 39 Cal.4th 970 (Lewis). In Lewis, the defendant claimed he was denied due process and an impartial judge under the Fifth and Fourteenth Amendments based on certain comments and rulings by the trial court. (Lewis, supra, at p. 992.) The California Supreme Court rejected the defendant's claim. The court explained that when the events occurred, the defendant "did not call the trial court's attention to the comments and rulings he now cites as evidence of judicial bias. In general, if the trial court refuses or fails to disqualify itself, the complaining party must seek disqualification at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. In doing so, the party must bring to the trial court's attention 'all of the facts' later cited on appeal in support of the judicial bias claim. [Citation.] By failing to do so when the relevant events occurred, [the defendant] has forfeited the right to complain about them on appeal. [Citation.] For similar reasons, he has lost any additional claims that the trial court's alleged bias affected subsequent rulings. [Citations.]" (Id. at p. 994.) Although the Lewis court concluded that the defendant had forfeited his judicial bias claim, it nevertheless determined that the bias claim failed on the merits.
Defendant argues that based on the California Supreme Court's later decision in People v. Freeman (2010) 47 Cal.4th 993 (Freeman),his due process challenge is cognizable on appeal even though he failed to seek disqualification in the trial court under state law. Defendant also contends that any objection below would have been "futile," and that that the appellate court "should exercise its discretion to reach the merits . . . ."
Although defendant cites Freeman to support his contention that his claim has not been forfeited, we observe that in Freeman, unlike in this case, the defendant moved in the trial court to disqualify the judge. (Freeman, supra, 47 Cal.4th at p. 1000.) The Freeman court explained that the defendant's failure to seek writ review of the denial of the motion forfeited her potential statutory claims. (Ibid.) Although the defendant's statutory claims had been forfeited, the Freeman court, citing People v. Chatman (2006) 38 Cal.4th 344 (Chatman),proceeded to address the issue of judicial bias and due process. (Freeman, supra, at p. 1000.) In Chatman, the California Supreme Court explained that "a defendant who raised the [judicial bias] claim at trial may always 'assert on appeal a claim of denial of the due process right to an impartial judge.' [Citation.] While defendant may not raise the statutory claim on appeal, he may assert a constitutionally based challenge of judicial bias. [Citation.]" (Chatman, supra, at p. 363, fn. omitted & italics added.) As we have stated, defendant did not raise a claim of judicial bias in the trial court.
We are also not persuaded by defendant's contention that any objection in the trial court would have been futile. Defendant cites People v. Hill (1998) 17 Cal.4th 800 (Hill), at page 820, in support of this argument, but that case is inapposite. Hill involved a defense counsel's failure to object at trial to all alleged instances of prosecutorial misconduct. The California Supreme Court concluded that continuing objections by defense counsel would have risked further critical comments from the court in front of the jury. Defense counsel was therefore "excused from the legal obligation to continually object" (id. at p. 821) and "all of the asserted grounds for misconduct were preserved for appellate review" (id. at p. 822). In this case, defendant fails to articulate why an attempt to disqualify the judge would have been futile.
Nevertheless, assuming defendant's due process claim is not forfeited, we find that his claim is without merit for reasons that we will next explain.
Due Process
"A criminal defendant has due process rights under both the state and federal Constitutions to be tried by an impartial judge. (Caperton v. A. T. Massey Coal Co. (2009) 556 U.S.__, __ [173 L. Ed. 2d 1208, 129 S. Ct. 2252, 2259] (Caperton). . . .) Indeed, '[i]t is axiomatic that "[a] fair trial in a fair tribunal is a basic requirement of due process." ' (Caperton, supra, 556 U.S. at p. __ . . . .)" (People v. Cowan (2010) 50 Cal.4th 401, 455 (Cowan).)
"Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) provides 'an explicit ground for judicial disqualification' based on 'a public perception of partiality, that is, the appearance of bias.' ([Freeman], supra, 47 Cal.4th at p. 1001.) Caperton, however, clarified that the due process clause operates more narrowly: '[W]hile a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist " 'the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable.' " ([Caperton, supra,] 556 U.S. at p. __ .) Where only the appearance of bias is at issue, a litigant's recourse is to seek disqualification under state disqualification statutes . . . . ([Id.] at p. __ .) Finally, the [United States Supreme Court in Caperton] emphasized that only the most "extreme facts" would justify judicial disqualification based on the due process clause. (Id. at pp. __, __ [129 S. Ct. at pp. 2265, 2266].)' ([Freeman], supra, 47 Cal.4th at p. 996.)" (Cowan, supra, 50 Cal.4th at pp. 456-457.)
Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) requires disqualification if "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."
In this case, defendant did not pursue a statutory disqualification motion and we determine that defendant fails to demonstrate actual bias, or " ' " 'the probability of actual bias on the part of the judge . . . [that] is too high to be constitutionally tolerable.' " ' " (Cowan, supra, 50 Cal.4th at p. 456.) After careful review of the record, we do not believe that the trial court's comment concerning defense counsel arguing a Romero motion on behalf of defendant "to the fullest extent he can with a straight face" indicates, as defendant now argues on appeal, that the court "considered the notion that the motion might be granted to be laughable," or otherwise "indicates that the court decided to deny [defendant's] Romero motion more than six months before it was even filed."
First, the statement at issue was made in the context of several other statements by the trial court in which it was clearly intending to impress upon defendant the potential serious consequences of him "plead[ing] to the sheet" notwithstanding his intent to file a Romero motion. Regarding the anticipated Romero motion from defendant, the court stated: "There are no promises. There is no winks and nods here [sic]. This is going to be a formal litigated adversarial proceeding. Your attorney will argue on your behalf to the fullest extent he can with a straight face, and the DA is going to argue vehemently in opposition to any Romero motion. [¶] If at the end of the proceeding the court declines to grant the Romero motion, you will or could be sentenced to 182 years to life in prison. If the court grants the motion in part, you could still be sentenced to a substantial period of incarceration. . . ." We believe that these statements, including the portion that defendant now objects to, were part of the court's attempt to advise defendant (1) of the possible serious consequences of a no-contest plea and admission of the prior conviction and prison prior allegations, (2) that he should expect his counsel to make only reasonable or legally sound arguments in the Romero motion, and (3) that defendant should not assume that the motion would necessarily be granted in whole or part by the court.
Second, the trial court's comments at the subsequent Romero hearing also support the conclusion that the court did not decide "to deny [defendant's] Romero motion more than six months before it was even filed," and that in fact, it carefully considered defendant's arguments after receiving the motion. At the Romero hearing, the court indicated that it had "read and considered all of the moving papers," including the letters submitted by defendant's family and friends concerning his "good character and their hopes of his future." The court further stated that it had "reviewed various factors required to be considered by the appellate courts of this state . . . ." The court also listened to defendant's oral statements at the hearing. Before announcing its ruling on the motion, the court "compliment[ed] all counsel and the probation department on doing a very, very thorough job of social history and inquiry of the circumstances as to the strike priors and relevant prior history," and "note[d] with pleasure the level of professionalism that all parties [had] demonstrated." In denying the Romero motion, the court detailed its reasons. The court's statements throughout the hearing reflect that it gave serious consideration to the motion papers and the particular circumstances of the case and that it applied the relevant legal principles to reach its ultimate determination that the motion should be denied. Nothing in the record suggests that the court predetermined, before the motion was even filed, read, and considered by the court, that the motion would be denied.
Furthermore, the denial of the Romero motion was not an abuse of discretion by the trial court. In denying defendant's Romero motion, the court explained that, "[r]ather than being a non-violent crime where all of the factors brought to the court's attention by the defense might be compelling, in fact these are just five more violent and serious offenses after the defendant has been given a second chance, a third chance and fourth chance in the ten years since his strike priors were accumulated. [¶] . . . [Defendant], notwithstanding the fact he's most likely a very fine fellow and loves his children, et cetera, falls squarely within . . . the so-called spirit of the three strikes law . . . ." We believe that " ' in light of the nature and circumstances of [defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects," the court's refusal to strike one or more of defendant's strikes was not "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Third, our determination that the statement does not reflect actual bias nor indicate the probability of actual bias on the part of the trial court is further supported by defendant's failure to raise the issue below. Defendant never expressed any concern that the court was prejudiced against him, or any concern that the court had already determined its ruling on an anticipated Romero motion. Defendant also did not request recusal of the judge. Defendant's willingness to let the Romero motion proceed to hearing and decision many months later without a charge of bias against the court "strongly suggests" the claim is "without merit." (People v. Guerra (2006) 37 Cal.4th 1067, 1112; see also People v. Tappan (1968) 266 Cal.App.2d 812, 816-817 [although the defendant on appeal complained of a prejudicial pretrial comment by the trial court, his failure to complain about bias during trial showed his confidence in the court's impartiality].)
Lastly, we are not persuaded by defendant's contention that the probability of actual bias by the trial court "lies even further toward the 'too high to be constitutionally tolerable' end of the spectrum than Caperton did." In Caperton, the issue was whether "due process was violated by a West Virginia high court justice's refusal to recuse himself from a case involving a $50 million damage award against a coal company whose chairman had contributed $3 million to the justice's election campaign. The justice cast the deciding vote that overturned the award. The United States Supreme Court held that, under the 'extreme facts' of the case, 'the probability of actual bias rises to an unconstitutional level.' (Caperton, supra, 556 U.S. at p. __ .)" (Freeman, supra, 47 Cal.4th at p. 1001.) Defendant's assertion of bias in the present case is factually distinguishable, as it is based on defendant's interpretation of a single comment by the trial court.
In sum, we have determined that the trial court's denial of defendant's Romero motion was not an abuse of discretion. Defendant did not pursue a statutory disqualification motion and we have determined, after carefully reviewing the record, that defendant fails to demonstrate actual bias, or " ' " 'the probability of actual bias on the part of the judge . . . [that] is too high to be constitutionally tolerable.' " ' " (Cowan, supra, 50 Cal.4th at p. 456.) We therefore conclude that defendant was not denied his federal due process right to an impartial judge. Defendant does not articulate any analytical difference between his federal and state constitutional claims, and consequently we reject his state due process claim for the same reasons that we have rejected his federal due process claim.
DISPOSITION
The judgment is affirmed.
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: DUFFY, J. WALSH J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.