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THE PEOPLE, Plaintiff and Respondent, v. JULIO M. VASQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Defendant and appellant Julio M. Vasquez appeals from the judgment entered following a jury trial that resulted in his conviction for second degree robbery. Vasquez was sentenced to a term of 40 years to life, pursuant to the Three Strikes law. Vasquez's sole contention on appeal is that the trial court abused its discretion by denying his request to strike one or more prior conviction allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On December 8, 2009, Manuel Gutierrez was employed as a security guard at the Lorena Pharmacy located on Whittier Boulevard. A pharmacy employee alerted Gutierrez that Vasquez, who was shopping in the store, had placed unpaid merchandise inside his pocket. Gutierrez confronted Vasquez and told him that if he returned the stolen items he could leave. When Vasquez made movements with his hands, Gutierrez became concerned that he might be about to grab a weapon, or leave with the unpaid merchandise. Gutierrez grabbed Vasquez's hands from the back. Vasquez resisted and angrily stated, “ ‘You don't know who you are messing with.’ “ The two men struggled and fell to the floor. The pharmacy manager arrived and helped restrain Vasquez. A videotape of the incident showed Vasquez taking merchandise and placing it inside his pockets, and struggling with Gutierrez. Police recovered store merchandise worth approximately $19.45 from Vasquez's person. When arrested, Vasquez admitted taking the items.
2. Procedure.
Trial was by jury. Vasquez was convicted of second degree robbery (Pen.Code, § 211).1 In a bifurcated proceeding the jury also found Vasquez had suffered two prior “strike” convictions (§§ 1170.12, subds.(a)-(d), 667, subds. (b)-(i)), four prior serious felonies (§ 667, subd. (a)(1)), and had served seven prior prison terms within the meaning of section 667.5, subdivision (b). Prior to trial, the court dismissed two additional prior “strike” allegations. After the jury's verdict, the court denied Vasquez's motion to strike the additional two strike allegations. It sentenced Vasquez to 25 years to life for the robbery and 15 years for the three prior serious felony convictions, for a total of 40 years to life. It imposed a restitution fine, a suspended parole restitution fine, a court security assessment, and a criminal conviction assessment. Vasquez appeals.
DISCUSSION
The trial court did not abuse its discretion by denying Vasquez's Romero motion.
a. Additional facts.
After the jury's verdict, the trial court heard and denied Vasquez's Romero motion. The court discussed at length the arguments raised in the written motion. It acknowledged that its ruling was guided by People v. Superior Court (Romero), supra, 13 Cal.4th 497, People v. Williams (1998) 17 Cal.4th 148, 161, and People v. Garcia (1999) 20 Cal.4th 490. It considered the probation officer's report, the materials presented by Vasquez, and the facts of the underlying crime. The court reasoned: “As the probation officer states in the report, Mr. Vasquez's criminal activity began in 1977 and has been nonstop since that time. The purpose of a recidivist statute like the Three Strike[s] law[ ] is to defer repeat offenders and at some point in [the] life of a person who repeatedly commits crimes serious enough to be punished as felonies to segregate that person from the rest of society for an extended period of time. That segregation is not based merely on the defendant's most recent offense, but also on the behavior that he has demonstrated over the period during which he has been convicted or sentenced for other crimes.” Vasquez had been provided numerous opportunities through grants of probation and parole to reform and “address his alleged psychological and substance abuse issues,” but had failed to do so. Vasquez's “[f]ailure to address these issues over a protracted period of time” despite opportunities to do so was “not necessarily [a] mitigating factor[ ] when considering continued criminal activities.” Vasquez's actions demonstrated he could not or would not comport his behavior to the requirements of society. The court further observed that letters from Vasquez's family demonstrated Vasquez had “continually let them down.” Based on the foregoing, the court concluded Vasquez was “not outside of the spirit of the Three Strikes law.” It explained: “Your attorney can only play the hand you dealt her. You did not deal her a very good hand, Mr. Vasquez. At some point in life bills become due and at this point in the trial for purposes of this sentencing your criminal history bills are due.” The court then denied the motion.
b. Discussion.
In the furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (§ 1385, subd. (a); People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504; People v. Meloney (2003) 30 Cal.4th 1145, 1155.) A trial court's refusal to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Under that standard, the party seeking reversal must “ ‘clearly show that the sentencing decision was irrational or arbitrary. [Citation.]’ “ (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (People v. Carmony, supra, at p. 378.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court must consider are “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm․ [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) We presume the trial court considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
The record before us reveals no basis for concluding Vasquez falls outside the spirit of the Three Strikes law. Vasquez's criminal history is lengthy, starting in 1979. He has suffered the following convictions: (1) vandalism in 1979; (2) grand thefts in 1981 and 1982; (3) disturbing the peace in 1982; (4) first degree burglary in 1984; (5) robbery in 1984; (6) being under the influence of a controlled substance in 1986; (7) possession of narcotics in 1987; (8) being under the influence of narcotics in 1987; (9) possession of a hypodermic needle in 1986; (10) grand theft of an automobile in 1987; (11) oral copulation by force and in concert in 1988; (12) inducing false testimony in the same case; (13) giving false identification to peace officers in 1999; (14) possession of a controlled substance or paraphernalia in 2002; and (15) possession of narcotics in 2003. Between 2003 and 2008, he violated parole four times. In short, Vasquez's lengthy criminal history demonstrates he is “the kind of revolving-door career criminal for whom the Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320; People v. Pearson (2008) 165 Cal.App.4th 740, 749.)
Vasquez argues that his strike priors were remote in time, and his other offenses were not violent. However, these facts have little mitigating force “where, as here, the defendant has led a continuous life of crime” after suffering the prior conviction. (People v. Pearson, supra, 165 Cal.App.4th at p. 749; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [20–year–old felony conviction not remote given defendant's criminal recidivism; a trial court cannot be expected to “simply consult the Gregorian calendar with blinders on”].) The fact that a majority of a defendant's offenses were nonviolent “cannot, in and of itself, take him outside the spirit of the Three Strikes law when the defendant is a career criminal with a long and continuous criminal history.” (People v. Strong (2001) 87 Cal.App.4th 328, 345.)
Vasquez also attempts to minimize the significance of the instant crime, arguing it was an “Estes robbery” 2 and “[h]ad he given back the product, he would not have been reported at all.” But, of course, he did not choose to take that route; instead he physically struggled with the security guard. In any event, Vasquez's sentence is not a result of his current crime alone, but is due to his recidivist status. (See People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 979–980; People v. Strong, supra, 87 Cal.App.4th at p. 337; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630; cf. People v. Meeks (2004) 123 Cal.App.4th 695, 709.)
Vasquez's argument that his crimes were due to his drug abuse and psychological problems fares no better. “[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Nor does his age, 51 at the time of the sentencing hearing, compel a finding he is outside the spirit of the Three Strikes law. “[M]iddle age, considered alone, does not remove a defendant from the spirit of the Three Strikes law. Otherwise, those criminals with the longest criminal records over the longest period of time would have a built-in argument that the very factor that takes them within the spirit of the Three Strikes law—a lengthy criminal career—has the inevitable consequence—middle age—that takes them outside the law's spirit.” (People v. Strong, supra, 87 Cal.App.4th at p. 345.)
Vasquez takes issue with the fact he was purportedly offered a 17–year sentence before trial, but was given a longer sentence after conviction. However, he offers no authority establishing that this was improper, nor has he shown either prosecutorial or judicial misconduct in this regard. (See People v. Szeto (1981) 29 Cal.3d 20, 35 [“The mere fact ․ that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights”].)
Vasquez also asserts that he is “terminally ill” and the motion should have been granted on that basis. However, this was not cited as a basis for the motion below. Further, the record does not support this contention. Documents appended to Vasquez's motion below indicate he has suffered from Hepatitis C for years, and has liver fibrosis. It does not indicate his demise is imminent.
Finally, Vasquez contends the court failed to properly consider statements from his family, and erroneously took into account arrests occurring in 1977 and 1978. He urges that the court's ruling was “arbitrary” and “founded upon retribution.” All of these contentions lack merit. The trial court obviously reviewed and considered all the materials presented by Vasquez, including letters from his family; that the court did not draw the inference Vasquez hoped from these items does not demonstrate an abuse of discretion. Even if the court's citation of the 1977 and 1978 arrests was improper, it was manifestly harmless in light of Vasquez's further lengthy criminal record. The record demonstrates the trial court was fully aware of its discretion to dismiss a prior strike allegation, considered the relevant factors, and weighed the arguments made in Vasquez's motion, as well as his and his attorney's statements in court. The record does not remotely suggest the court's decision was retributive or arbitrary.
Vasquez's “conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant's prospects for the future look no better than the past, in light of defendant's record of prior offense and reoffense․ There is no indication from the record here that the court failed to consider the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the [T]hree [S]trikes law. [Citation.]” (People v. Philpot (2004) 122 Cal.App.4th 893, 906–907.) In sum, this is not the sort of “extraordinary” case in which the defendant falls outside the spirit of the
Three Strikes scheme. (See, e.g., People v. Carmony, supra, 33 Cal.4th at p. 378; People v. Philpot, supra, at p. 907.) The trial court's failure to strike the prior conviction allegations was neither irrational nor arbitrary, and did not constitute an abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
FOOTNOTES
FN1. All further undesignated statutory references are to the Penal Code.. FN1. All further undesignated statutory references are to the Penal Code.
FN2. People v. Estes (1983) 147 Cal.App.3d 23.. FN2. People v. Estes (1983) 147 Cal.App.3d 23.
KLEIN, P. J. KITCHING, J.
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Docket No: B228551
Decided: December 29, 2011
Court: Court of Appeal, Second District, California.
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