THE PEOPLE v. JOHN LLOYD

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOHN L. LLOYD, Defendant and Appellant.

B219148

Decided: November 23, 2010

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In a prior appeal, we reversed appellant's sentence and remanded for resentencing, instructing the trial court to make certain findings and to reconsider appellant's Romero motion.1  On remand, the trial court made the required findings, reconsidered the Romero motion, which it granted in part and denied in part, and resentenced appellant.   Appellant contends that the trial court abused its discretion in refusing to grant the motion in its entirety.   We find no abuse of discretion, and affirm the judgment.

BACKGROUND

1. Jury Findings

In bifurcated proceedings, the jury found true that appellant had suffered five prior felony convictions, three of which were alleged as prior convictions requiring sentencing pursuant to sections 667, subdivisions (b)-(i) and 1170.12 --the “Three Strikes” law.   Four of the prior convictions resulted in prison terms, after which appellant had not remained free of custody for five years, potentially subjecting him to four separate enhancements pursuant to section 667.5, subdivision (b).

2. Appellant's Romero Motion

Appellant filed a Romero motion in which he requested the trial court to sentence him as a first-time offender, and to grant him probation.   The trial court denied appellant's Romero motion, and sentenced him as a second-strike offender to the middle term of two years, doubled under the Three Strikes Law to four years, enhanced by one year due to a prior prison term, pursuant to section 667.5, subdivision (b).  (Lloyd I, supra, B203359) [nonpub.opn.].) The trial court chose a 2001 conviction of petty theft with a prior for that enhancement.  (Lloyd I, supra, B203359.)

3. Prior Appeal

In the prior appeal, appellant challenged the trial court's order on the Romero motion.   We concluded, as relevant here, that the trial court failed to exercise properly informed discretion in connection with the Romero motion, and failed to make formal findings as to the prior convictions it was striking, or give the reasons for dismissal.  (Lloyd I, supra, B203359) [nonpub.opn.].)

We thus reversed appellant's sentence, and remanded for resentencing.   (Lloyd I, supra, B203359) [nonpub.opn.].) We directed the trial court to make formal findings as to whether the alleged strikes were serious felonies and strikes, in conformity with the decisions in People v. Kelii (1999) 21 Cal.4th 452, and People v. Delgado (2008) 43 Cal.4th 1059.  (Lloyd I, supra, B203359.)   We also directed the trial court to make formal findings on whether appellant served prison terms as defined by section 667.5, subdivision (b), and either impose or strike each prison term enhancement.   Finally, we directed the trial court to reconsider appellant's Romero motion, and to enter into the minutes the court's discretionary reasons for striking any prior convictions or enhancements.  (Lloyd I, supra, B203359.)

4. Trial Court's Order on Remand

On remand, the trial court resentenced appellant after hearing and denying a motion for the appointment of new counsel, and after reconsidering appellant's Romero motion and request for probation.

The trial court struck the 1971 conviction alleged as a prison term enhancement, after finding that the prosecution had not proceeded on that allegation.2  The trial court then recited that the jury had found true the allegation that appellant had been convicted in 1985 of assault with a firearm, in Los Angeles County case No. A091718, and found that offense to be a serious or violent felony.   The trial court noted that the jury also found true the allegation that in 1987, appellant was convicted of a violation of section 207, subdivision (a), kidnapping by means of force or fear, and found that offense to qualify as a strike.   With regard to the third conviction, the trial court noted, as we had in our opinion, that it was unclear from the record of appellant's conviction of a violation of section 245, subdivision (a), whether the underlying offense was assault with a deadly weapon, which would qualify as a strike, or assault by means of force likely to cause great bodily injury, which would not qualify.   The trial court thus concluded that the People had failed to prove beyond a reasonable doubt that the conviction was a strike.

The trial court indicated that it would strike at least one of the qualifying prior convictions, because the People had proceeded on a two-strikes theory, not on a three-strikes theory, despite having met their burden to prove two of the alleged strikes.   The trial court then heard counsel's argument on the Romero motion.

Defense counsel argued that the prior strike offenses were 20 years old, and represented that since then, appellant had become a homeowner, with a family and a support system.   She argued, as she had in the first hearing, that because appellant's conviction of petty theft with a prior was a drug-related offense, and he had a substance abuse problem, appellant would benefit by a residential treatment program.  (Lloyd I, supra, B203359) [nonpub.opn.].)

The trial court agreed that the current offense was not serious--0.33 grams of cocaine base and a pipe.   However, the 1986 kidnapping offense, according to the probation report, had been committed for purposes of rape, and the trial court noted that appellant was sentenced to 18 years in prison, where he was arrested for assault on another prisoner in 1989.   The trial court also noted that appellant had committed an assault with a deadly weapon at the time of the kidnapping.   Then, in 1996, appellant's parole was revoked after he committed another assault with a deadly weapon.  (Lloyd I, supra, B203359) [nonpub.opn.].) The trial court noted two misdemeanor convictions, apparently related to his drug use, before he was charged with burglary and allowed to plead to a petty theft with a prior in 2001.   Once again in prison, appellant was charged in 2005 with misdemeanor battery, and the matter was handled administratively.

The trial court acknowledged that the kidnapping conviction was old, but observed that it involved the brutalization of the victim, and commented, as we had in our opinion, that no reasonable court would grant appellant probation in this case.  (See Lloyd I, supra, B203359 [nonpub.opn.].)

Considering appellant's prospects, the trial court noted that appellant was 59 years old, and although his offenses had been less serious in the past 11 or 12 years, his history showed a consistent pattern of criminal behavior from the time appellant was a juvenile.   The trial court concluded that appellant was a career criminal.

The trial court granted the Romero motion as to one strike, because the People did not prosecute this case as a third strike case, and it chose the 1985 conviction due to its age.   Based upon the trial court's consideration of appellant's character and prospects, as well as the circumstances of the kidnapping charge, the trial court denied the Romero motion as to that offense.

The trial court resentenced appellant to a total of five years in prison.   The trial court chose the middle term of two years as to count 1, possession of base cocaine, because it was a small quantity of narcotics.3  The two years were doubled under the Three Strikes Law, due to the kidnapping prior.   Because the jury had found true that appellant was sentenced to prison in 2001 for the petty theft with a prior, with no “washout period,” the court imposed a one-year enhancement.4  The trial court noted for the record that appellant was on parole at the time he committed the current offense.

5. Appeal

Appellant filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

Appellant contends that the trial court abused its discretion in refusing to dismiss both strikes, for several reasons discussed below.

The trial court's discretion to strike an allegation of a prior felony conviction in furtherance of justice is broad, but limited.  (Romero, supra, 13 Cal.4th at p. 530;  § 1385, subd. (a).)  The court must consider the nature and circumstances of the defendant's present felony and prior serious or violent felony convictions, as well as his background, character, and prospects, to determine whether he may be deemed outside the spirit of the Three Strikes Law, in whole or in part.  (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams ).)   We presume that the trial court considered all relevant factors, unless there is affirmative indication in the record that it did not do so.  (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

We review the trial court's decision for abuse of discretion, and our review is deferential.  (Williams, supra, 17 Cal.4th at p. 162;  Romero, supra, 13 Cal.4th at p. 530.)  “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.”  (People v. Carmony (2004) 33 Cal.4th 367, 377.)

It is appellant's burden to demonstrate that the trial court's decision was irrational, arbitrary, or not “ ‘grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’   [Citation.]”  (People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 977.)   The trial court's “discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.   [Citations.]”  (People v. Jordan (1986) 42 Cal.3d 308, 316.)

II. The Trial Court Did Not Abuse Its Discretion

Appellant contends that the trial court demonstrated a “prohibited antipathy” for him, and a predisposition to deny the motion.5  We discern no personal bias or predisposition to deny the motion.   Prior to hearing counsel's argument on the motion, the trial court indicated its intention to strike the 1985 conviction of assault with a firearm.   Announcing an intended ruling is not evidence of prejudgment or a refusal to consider arguments.  (People v. Richardson (2008) 43 Cal.4th 959, 1033-1034.)

Appellant also argues that the trial court failed to consider the circumstances of his crimes, or the fact that that his criminal history was caused by drug addiction, and failed to consider his current support system.   In addition, appellant contends the court gave too little weight to the remoteness of his strike offense, and to appellant's current condition as “a reduced and emotionally damaged, older man.”   We disagree.   The trial court heard the argument of counsel, who raised these concerns, and we thus presume that it gave due consideration to them.  (See People v. Myers, supra, 69 Cal.App.4th at p. 310.)

Moreover, we reject appellant's suggestion that the trial court was required to give more weight to his age than it did.   Appellant relies on People v. Bishop (1997) 56 Cal.App.4th 1245, in which the appellate court merely upheld the court's discretion, which was based in part on the defendant's age.   (Id. at pp. 1247, 1251.)   Moreover, in this case, appellant's age does not mitigate in his favor, but merely shows that after nearly four decades of criminal behavior, with punishment that included an 18-year prison term, he has failed to learn from his experience.   Indeed, appellant was last released from prison in March 2007, less than three weeks before committing the current crime.  (Lloyd I, supra, B203359) [nonpub.opn.].)

For the same reason, we also reject appellant's suggestion that the trial court should have given his drug addiction more weight as a mitigating factor.   Appellant had a long history of drug-related crimes, and nothing in his history indicated a willingness to deal with his addiction.   Indeed, as the People point out, after the trial court sentenced appellant, it offered to recommend that he be placed in an institution that would provide rehabilitation services, but appellant said, “No, no.   I don't need all of that.”

Our review of the proceeding reveals that the trial court duly considered the factors suggested by Williams, supra, 17 Cal.4th at p. 161:  the nature and circumstances of the present felony and prior serious or violent felony convictions, and appellant's background, character, and prospects.   The trial court acknowledged that the current offense was relatively minor, and that the strike offense was 22 years old, but observed that it was kidnapping by force for purposes of rape, and that appellant was also convicted of assault with a deadly weapon.  (Lloyd I, supra, B203359) [nonpub.opn.].) The trial court also noted that the crime involved brutalization of the victim, and gave great weight to the fact that appellant's sentence was 18 years.   The trial court reviewed appellant's criminal history, which began when he was a juvenile, with arrests for robbery, assault with a deadly weapon, and riot.  (Lloyd I, supra, B203359.)   The trial court noted that although appellant was nearly 59 years old, his most recent 10 to 12 years had not all been spent abiding the law.

The trial court's decision was not irrational or arbitrary.  (See People v. Carmony, supra, 33 Cal.4th at p. 377.)   A court's discretion is limited to dismissing strikes of defendants who may be deemed to fall outside the spirit of the Three Strikes Law. (Williams, supra, 17 Cal.4th at p. 161;  see Romero, supra, 13 Cal.4th at p. 530.)   Here, appellant cannot be deemed to fall outside the spirit of the Three Strikes Law, considering that his criminal career has spanned several decades and includes convictions for violent crimes and serious crimes involving the threat of violence, particularly as there is no indication that he has attempted to deal with the underlying causes of his criminal behavior, such as his drug dependency.  (See People v. Gaston (1999) 74 Cal.App.4th 310, 321-323.)   We find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. See People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 (Romero ) and Penal Code section 1385, subdivision (a).   All further statutory references are to the Penal Code unless otherwise indicated..  FN1. See People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 (Romero ) and Penal Code section 1385, subdivision (a).   All further statutory references are to the Penal Code unless otherwise indicated.

FN2. See section 667.5, subdivision (b)..  FN2. See section 667.5, subdivision (b).

FN3. See section 18 and Health and Safety Code section 11350..  FN3. See section 18 and Health and Safety Code section 11350.

FN4. By “wash-out period,” the trial court meant that appellant had not remained free of prison custody for at least five years before committing the current offense.  (See § 667.5, subd. (b).).  FN4. By “wash-out period,” the trial court meant that appellant had not remained free of prison custody for at least five years before committing the current offense.  (See § 667.5, subd. (b).)

FN5. Appellant turns the so-called “prohibited” antipathy on its head.   The antipathy that is prohibited is one that causes a court to grant a motion to dismiss a strike allegation due solely to “ ‘ “personal antipathy for the effect that the three strikes law would have on [a] defendant․” ’  [Citations.]”  (People v. Garcia (1999) 20 Cal.4th 490, 498)..  FN5. Appellant turns the so-called “prohibited” antipathy on its head.   The antipathy that is prohibited is one that causes a court to grant a motion to dismiss a strike allegation due solely to “ ‘ “personal antipathy for the effect that the three strikes law would have on [a] defendant․” ’  [Citations.]”  (People v. Garcia (1999) 20 Cal.4th 490, 498).

_, P.J. BOREN _, J. DOI TODD