Filed 4/12/16 P. v. Hubbard CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B261546

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA130667)
         v.

ROBERT WILLIAM HUBBARD,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Ricardo R. Ocampo, Judge. Affirmed.


         Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel and
William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.


                                   _______________________________
       Robert W. Hubbard plead no contest to inflicting corporal injury upon his live-in
girlfriend, admitted a prior strike conviction, and was sentenced to an aggregate term of
11 years in state prison. He contends the trial court erred in failing to dismiss the prior
strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND1
       Shareka S. and Hubbard lived together for about two years. On July 5, 2013, the
two were arguing about ending their relationship while sitting in a car on Central Avenue
in Los Angeles. Hubbard got out of the car and hit Shareka S. numerous times in the face
with a cane. Shareka S. did not recall how many times she was hit, but at some point she
lost consciousness. When she awoke, she found she had urinated and defecated on
herself. She suffered a broken tooth and had severe bruises on her eye.
       Hubbard was charged with corporal injury to a cohabitant. (Pen. Code, § 273.5.)2
It was further alleged that he used a dangerous weapon and inflicted great bodily injury in
the commission of the offense. (§§ 12022, subd. (b)(1); 12022.7, subd. (e).) It was
further alleged he suffered a prior conviction for robbery in 2001, a strike. (§§ 667,
subds. (b)-(i), 1170.12 subds. (a)-(d).) It was also alleged the same prior was a serious
felony. (§ 667 subd. (a)(1).) Three prior convictions were charged as prior prison terms
(§ 667.5, subd. (b)), and it was alleged Hubbard was required to serve his sentence in
state prison because he was a registered a sex offender. (§ 1170 subd. (h)(3).)
       Hubbard plead no contest to inflicting corporal injury (§ 273.5, subd. (a)) and
admitted he used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily
injury (§ 12022.7, subd. (e)) while doing so. He also admitted he was previously
convicted of robbery, as a strike conviction and as a prior serious felony. Thereafter,
the trial court permitted Hubbard to withdraw his plea to the prior conviction as a serious

1
       Because Hubbard plead guilty, the facts are taken from the preliminary hearing.
In addition, the facts are abbreviated given that his only contention is that the trial court
improperly denied his Romero motion.
2
       All further section references are to the Penal Code.

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felony and the prosecution dismissed it. Hubbard was sentenced to an aggregate term of
11 years in state prison, comprised as follows: for the corporal injury conviction,
the middle term of three years, doubled because of the strike, plus an additional and
consecutive term of four years for the great bodily injury allegation and one year for the
use of a deadly weapon. The court struck all three of the prior prison term allegations.
       Hubbard timely appealed.
                                       DISCUSSION
       Hubbard contends the trial court improperly denied his Romero motion.
We disagree.
       “In ruling on a Romero motion, the trial 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.’” (People v. Finney (2012) 204 Cal.App.4th 1034, 1038, quoting
People v. Williams (1998) 17 Cal.4th 148, 161.) “The court’s ruling on a motion to strike
is subject to a deferential abuse of discretion standard of review. [Citation.] A ‘trial
court will only abuse its discretion in failing to strike a prior felony conviction allegation
in limited circumstances. For example, an abuse of discretion occurs where the trial court
was not “aware of its discretion” to dismiss [citation], or where the court considered
impermissible factors in declining to dismiss.’ [Citation.] The burden is on the party
challenging the sentence to clearly show the sentence was irrational or arbitrary.
[Citation.] Further, a sentence will not be reversed merely because reasonable people
might disagree. ‘“‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’”’ [Citation.]” (People v.
Leavel (2012) 203 Cal.App.4th 823, 837.)
       Applying these principles, we find no abuse of discretion. Here, the attorneys
filed motions on the issue, and the court listened to both counsel’s argument. In denying
the motion, the court stated:

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       “In this case I do agree with the People that the [criminal] history’s extensive.
The times that he is, we’ll say, crime free and although the court has considered the fact
that two of those are based on misdemeanor convictions now and not felony based on
Prop. 47, they are still criminal behavior. Whether it be misdemeanor behavior or felony
behavior, the court has considered the gaps that he does have from being crime free, is
based on him being incarcerated.
       “The court notes that his history as pointed out by Mr. Thompson, that this is as
far back as 1994, 1996 with juvenile issues; but more so contacts – not contacts, but the
convictions and crimes based on 1998 with a 245, narcotics issues in 2000, and 211 –
211’s been the continued pattern since when he was not incarcerated by either narcotics
issues, 459 or ex-con with a gun, and that as recent as 2012.
       “And so the court shows that although the[re] are gaps, the gaps are because he
was incarcerated and not free to commit more crime. So the court does not believe that
this will be the candidate to exercise its discretion under Romero and, therefore, the
motion to strike the prior is denied at this time.”
       The record supports the trial court’s conclusion. The probation report indicates
Hubbard has a lengthy criminal history. In 1998, he was found to have committed
battery with great bodily injury as a juvenile and was sentenced to four years in camp
community placement. In 2000, Hubbard was convicted of possession of marijuana for
sale and possession of a knife on school grounds. After being placed on probation in that
case, he violated his probation. In October of 2000, he was convicted of second degree
robbery and sentenced to five years in state prison. When out of prison on parole for the
robbery, Hubbard was convicted of possession of cocaine and sentenced to two more
years in state prison. In 2008, he was returned to state prison for a parole violation. In
2009, he was convicted of receiving stolen property and sentenced to three years in state
prison. Thereafter, in 2012, he was convicted of driving on a suspended license and
being a felon in possession of a firearm. The probation report indicates Hubbard was
found with two loaded handguns and a loaded rifle wrapped in cloth in a duffle bag.



                                               4
       In addition to the violent behavior underlying his present conviction, there is
evidence of nine incidents of uncharged domestic abuse of Shareka S. which were
detailed by the prosecutor in his sentencing memorandum. This pattern of criminal
activity fully supports the trial court’s decision to deny the Romero motion.
       Contrary to Hubbard’s contention, the trial court considered his background,
character and prospects. The trial court indicated it read and considered Hubbard’s
statement in mitigation and his response to the prosecutor’s sentencing memorandum.
Further, Hubbard’s attempt to portray himself as having had 13 years of crime free
behavior is misleading, given that he spent most of that time in prison. As stated by the
prosecutor, Hubbard “has been in and out of prison since 2001, and has not spent more
than 18 months after release without re-offending and being sent back to custody.”
We simply see no error in denying the motion to strike; Hubbard falls well within the
spirit of the Three Strikes law.
                                     DISPOSITION
       The judgment is affirmed.




                                                 BIGELOW, P.J.
We concur:


                     RUBIN, J.




                     FLIER, J.




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