Filed 9/8/14 P. v. Paulton CA2/7

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B249338

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA407395)
         v.

MORRIS EUGENE PAULTON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Ray G. Jurado, Judge. Affirmed.


         Mark S. Devore, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb
and Jonathan K. Kline, Deputy Attorneys General, for Plaintiff and Respondent.


                                              __________________
       Morris Eugene Paulton appeals from a judgment entered after a jury convicted him
of automobile burglary. He contends the trial court abused its discretion in denying his
motion to dismiss his prior strike convictions. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In January 2013, a public safety officer for the University of Southern California
(USC) detained Paulton after noticing him prying open the window of a car parked in a
USC-owned lot. Paulton was arrested and charged in an amended information with
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automobile burglary (Pen. Code, § 459) with special allegations he had suffered three
prior serious or violent felony convictions within the meaning of the three strikes law
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served ten separate prison terms
for felonies (§ 667.5, subd. (b)). Paulton pleaded not guilty and denied the special
allegations.
       A jury found Paulton guilty as charged. In a bifurcated proceeding, the trial court
granted the People’s motion to dismiss two of the prior prison term allegations, and
Paulton admitted all the remaining prior convictions allegations.
       Prior to sentencing, the trial court indicated it had read and considered the parties’
sentencing memoranda, the probation officer’s report and Paulton’s motion to dismiss the
prior strike convictions (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th
497, 504 (Romero)). In support of the Romero motion, defense counsel argued Paulton’s
three prior strike convictions for robbery in 1979 (Texas), 1993 and 2000 were remote;
his criminal convictions since 2000 were nonviolent theft and drug-related offenses; he
had a history of chronic drug and alcohol abuse; and his current crime was possibly
motivated by the presence of a bottle of alcohol in the victim’s car. Counsel urged the
court to dismiss the prior convictions and sentence Paulton to the lower term state prison
sentence. The prosecutor argued the court should deny the Romero motion and sentence
Paulton to the middle term doubled as a second-strike offender, in view of Paulton’s



1
       Statutory references are to the Penal Code.

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lengthy history of theft-related convictions, his failure to seek treatment for his addiction,
and to otherwise take responsibility for his criminal conduct.
       According to the probation officer’s report, Paulton was 54 years old at the time of
the automobile burglary. His criminal history consisted of nine felony convictions apart
from the three robberies: burglary in 1993 (Texas), burglary in 1987, forgery in 1991,
burglary in 1991, attempted escape from prison in 1992, and possession of a controlled
substance in 1997, 2005 and 2011 and transporting a controlled substance in 2006. Also
listed are four misdemeanor convictions: burglary in 1987, attempted petty theft in 1991,
driving under the influence in 1999 and making a criminal threat in 2000. At the time of
the current offense, Paulton had reportedly absconded from probation.
       After listening to argument by counsel, the trial court denied the Romero motion.
The court expressly considered the nature and consequences of Paulton’s current offense,
noting Paulton cooperated with USC public safety officers, and there was no damage to
the victim’s car. The court also considered defense counsel’s arguments in the context of
Paulton’s entire criminal history, observing while Paulton’s prior strike convictions were
“older” he had numerous felony convictions resulting in multiple prison commitments,
which were separated by brief periods out of custody. The court concluded, given these
factors, Paulton fell squarely within the spirit of the three strikes law.
       The trial court sentenced Paulton to an aggregate state prison term of six years,
consisting of four years (double the two-year middle term under the three strikes law) for
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automobile burglary plus two one-year prior prison term enhancements.

2
       Proposition 36, the Three Strikes Reform Act of 2012, amended sections 667 and
1170.12, effective November 7, 2012, to limit three strike sentences to current
convictions for serious or violent felonies and a limited number of other felonies unless
the People plead and prove the offender has a prior strike conviction that falls within one
of several enumerated categories. Paulton was properly sentenced as a second strike
offender under the amended statute because his conviction for automobile burglary is
neither a serious or violent felony (see §§ 1192.7, subd. (c), 667.5, subd. (c)) nor one of
the specially designated offenses in section 1192.7, subdivision (c)(2)(C)(i)-(iv)).




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                                       DISCUSSION
       Section 1385, subdivision (a), vests the court with discretion to dismiss a prior
conviction, including a qualifying strike conviction, “in furtherance of justice.” (People
v. Superior Court (Romero), supra, 13 Cal.4th at p. 530; People v. Williams (1998) 17
Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a prior serious and/or violent
felony conviction allegation or finding under the Three Strikes law . . . or in reviewing
such a ruling, 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 [Three Strikes] 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.” (Id. at p. 161.)
       We review the trial court’s decision not to dismiss a prior strike allegation under
section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)
“[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes
the trial court’s power to depart from this norm and requires the court to explicitly justify
its decision to do so. In doing so, the law creates a strong presumption that any sentence
that conforms to these sentencing norms is both rational and proper. [¶] . . . [¶] . . .
‘[I]t is not enough to show that reasonable people might disagree about whether to strike
one or more’ prior conviction allegations. . . . Because the circumstances must be
‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of
the very scheme within which he squarely falls once he commits a strike as part of a long
and continuous criminal record, the continuation of which the law was meant to attack’
[citation], 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.” (Id.
at p. 378.)


3
      The court apparently dismissed the remaining six one-year prior prison term
enhancements in furtherance of justice (§ 1385).

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       We reject Paulton’s claim the trial court either abused or misunderstood the scope
of its discretion to dismiss his prior strike convictions, by focusing exclusively or
inordinately on his criminal history in denying his Romero motion. The court considered
Paulton’s robbery convictions in conjunction with his criminal history and the nature and
circumstances of his current offense. Indeed, the court stated despite the fact Paulton’s
prior strike convictions were relatively remote, the record established Paulton to be a
recidivist with poor prospects for the future. Under such circumstances, a trial court does
not abuse its discretion in refusing to dismiss one or more prior strike convictions, even
where, as here, the convictions are a number of years old. (See People v. Williams,
supra, 17 Cal.4th at pp. 162-164 [abuse of discretion to dismiss 13-year-old prior where
there is little or nothing favorable in defendant’s background, record, character or
prospects].)
       Paulton contends, however, the trial court ignored the particulars of his
background, which purportedly placed him outside the primary purpose of the three
strikes law. Specifically, Paulton faults the court for failing to consider, because it failed
to address, his history of addiction and substance abuse and his homelessness at the time
of the current offense. However, these factors were before the court through the Romero
motion and the probation officer’s report, which the court indicated it had reviewed. We
presume the court considered them since the record does not affirmatively reflect
otherwise; it is not necessary for the trial court to address each independently. (People v.
Evans (1983) 141 Cal.App.3d 1019, 1022.) The court did not abuse its discretion in
concluding Paulton did not fall outside the scope of the three strikes law.
                                          DISPOSITION
       The judgment is affirmed.


                                                                                WOODS, J.
We concur:


               PERLUSS, P. J.                                                   ZELON, J.

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