Filed 8/19/14 P. v. Robertson CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C074507

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F05890)

         v.

CURTIS EUGENE ROBERTSON,

                   Defendant and Appellant.




         A jury found defendant Curtis Eugene Robertson guilty of possession of child
pornography and in bifurcated proceedings, the trial court found true defendant had three
prior strike convictions. The trial court denied defendant’s Romero1 motion to strike his
prior serious felony convictions and sentenced him to a term of 25 years to life. On




1        People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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appeal, defendant contends the trial court abused its discretion in denying his Romero
motion. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       After identifying a user downloading child pornography files, including images of
children, ages five to 13 years old engaged in a variety of sexual acts, California
Department of Justice Special Agent Michael Sparks obtained a search warrant for
defendant’s home. The search revealed two computer data drives and a CD. Defendant
told the officers, “Everything is from the internet, Limewire.” Limewire is a program
used for sharing and downloading child pornography, amongst many other things. On
the computer, Sparks found 17 child pornography videos. Other files contained images
of child pornography depicting children of both sexes under 13 years old in various
sexual acts. One of the files had the name “Jenny” in the file name. That file had been
played at some point on or before March 18, 2010. This video was part of a series known
as the Jenny series, in which the victim was identified and the individual who produced
the series was prosecuted. The CD also contained child pornography and another video
file of Jenny. She was eight or nine years old at the time the video was made. There
were also approximately 20 nude photographs of defendant in sexually explicit poses.
       When Sparks started defendant’s computer using a special program, the Limewire
program finished downloading several files that were in the queue. The names were
consistent with child pornography.
       Defendant had four prior strike convictions for rape by force or fear, sodomy by
force or fear, oral copulation by force or fear, and residential burglary. Before
sentencing, defendant filed a Romero motion to strike some or all of his prior convictions
under the three strikes law. Defendant argued each of his four strike convictions resulted
from a single prosecution, a single night of aberrant behavior. He contended other than a
single parole violation shortly after his release from prison in 1996; he had no additional
parole violations, arrests, or convictions until the current offenses. After his release, he

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married and helped raise a daughter and remained gainfully employed. His current
offense was nonviolent and not serious. He contended without the strikes, he would still
receive a substantial sentence of six years in state prison.
       The People, in turn, noted three of defendant’s strike offenses were sexually
violent offenses subjecting him to an indeterminate term of 25 years to life. Defendant’s
prior strikes arose after he broke into a 64-year-old woman’s home and forcibly raped
and sodomized her and forced her to orally copulate him. He repeatedly threatened her
with a gun and a knife and threatened to kill her if she told anyone. Shortly after being
released from prison on the prior strikes, defendant solicited an undercover officer for
oral sex. The People argued defendant’s current offense showed an affinity for watching
children have sex forced upon them, while his prior strike convictions arose from three
separate acts of forcing sex upon a particularly vulnerable victim. The People concluded
defendant fell squarely within “the spirit of the Three Strikes law.”
       The trial court read the defense motion and the People’s response and was familiar
with the facts of the case and defendant’s history. The trial court found it was not an
appropriate case in which to exercise its discretion under Romero, and that 25 years to
life was the appropriate sentence in light of the nature of the offense and the particular
items of pornography defendant possessed. Accordingly, the trial court denied
defendant’s motion. The trial court sentenced defendant to state prison for 25 years to
life. The trial court ordered defendant to pay a $10,000 restitution fine (Pen. Code,
§ 1202.4) and imposed and stayed a $10,000 parole revocation fine (Pen. Code,
§1202.45). The trial court also ordered defendant to pay a $287.78 main jail booking fee
(Gov. Code, § 29550.2), a $59.23 main jail classification fee (Gov. Code, § 29550.2), a
$30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court security fee
(§ 1465.8). The trial court awarded defendant 1,824 days of presentence custody credits.




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                                        DISCUSSION
        A trial court has the discretion to strike a prior serious felony conviction for
purposes of sentencing only if the defendant falls outside the spirit of the three strikes
law. (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161; People v.
Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do
so, 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, 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.” (Williams, at
p. 161.)
        A trial court’s ruling on a motion to strike a prior strike is reviewed for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Defendant has the burden
of establishing that a trial court’s denial of such motion was arbitrary or irrational, such
as where the trial court was not aware of its discretion, considered impermissible factors,
or imposed a sentence that is absurd under the particular facts of the case. (Id. at pp. 376-
377.)
        The record here does not affirmatively demonstrate the trial court failed to
consider all the relevant factors in ruling on defendant’s Romero motion. These factors,
and the specific claims defendant now makes, were thoroughly covered in the briefs filed
by the parties below. The court expressly indicated it had read the briefs of the parties.
Thus, we can presume the court was aware of the factors it was required to consider.
Contrary to defendant’s suggestion, the court’s comments focusing on the nature and
circumstances of defendant’s current offense do not affirmatively demonstrate the court
only considered that factor in ruling on the motion.
        Furthermore, contrary to defendant’s claim, although his prior strike convictions
arose from conduct on a single night, it involved three separate violent sexual offenses.

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In addition, defendant’s record of solicitation and possessing child pornography suggest
his behavior was not aberrant. Rather, defendant’s conduct shows “a propensity for sex
offenses, and in particular, a fascination with imposing sex on those [who] do not and
cannot defend themselves.” There is no basis on the record before us for us to conclude
the trial court did not appreciate the scope of its discretion and failed to properly exercise
it in denying the Romero motion. On the record before it, the trial court’s decision was
neither arbitrary nor irrational. We find no abuse of discretion.
                                       DISPOSITION
       The judgment is affirmed.



                                                         ROBIE                  , J.



We concur:



      RAYE                   , P. J.



      HOCH                   , J.




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