Filed 9/16/14 P. v Rogers 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                                          NOT TO BE PUBLISHED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
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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,                                                                             C075447

                   Plaintiff and Respondent,                                (Super. Ct. No. 13F01038)

         v.

DARREN M. ROGERS,

                   Defendant and Appellant.




         Defendant Darren M. Rogers pleaded no contest to unlawfully taking or driving a
vehicle and felony evading a police officer. He also admitted he had sustained a prior
serious felony conviction and served a prior prison term. The trial court denied
defendant’s Romero1 motion to strike his prior serious felony conviction and sentenced
him to the agreed maximum term of eight years four months in state prison.


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


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       On appeal, defendant contends the trial court abused its discretion in denying his
Romero motion. We affirm the judgment.

                 FACTUAL AND PROCEDURAL BACKGROUND

       On February 9, 2012, Officer Christopher Shippen saw defendant driving a stolen
vehicle. He attempted to stop the vehicle and defendant accelerated away at a high rate
of speed and ran several stop signs with Shippen in pursuit. After running a stop sign on
Rio Linda Boulevard, defendant crashed into a vehicle driven by Sophia Castillo, causing
major damage to both vehicles. Defendant then fled the scene on foot. Officer Shippen
eventually apprehended and arrested defendant.

       A complaint deemed an information charged defendant with unlawful taking or
driving a vehicle (Veh. Code, § 10851, subd. (a)) and evading a peace officer (id.,
§ 2800.2, subd. (a)). The information also alleged defendant had a prior strike conviction
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12)2 and had served two prior prison terms
(§ 667.5, subd. (b)). Defendant pleaded no contest to the unlawful taking or driving a
vehicle and evading a peace officer. As to the evasion, defendant admitted he had driven
with willful and wanton disregard for the safety of persons and property. Defendant also
admitted he had sustained one prior strike conviction and served a prior prison term.

       Before sentencing, defendant filed a Romero motion to strike his prior conviction
under the “Three Strikes” law. At the hearing, defendant argued that other than the
strike, he had no convictions involving violence or weapons. His record reflected
convictions for theft and drug possession, but no serious or violent offenses. He claimed
all of his problems arose from his drug use and assured the court he would no longer be
using drugs. His current offense was nonviolent and not serious. He contended that
without the strike, he would be sentenced to a term of five years four months for the


2 Undesignated statutory references are to the Penal Code.


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offense he committed, which would be a just sentence. He acknowledged that he could
have injured someone badly by committing the current offense, but argued no one was in
fact injured. He also argued that the prior strike conviction (in 1990) was remote in time.

       The People, in turn, noted defendant’s strike offense was an assault on a police
officer. The People also pointed to defendant’s seven felony convictions since 1990 and
his multiple misdemeanors, one of which was an assault charge. He also had a prior
conviction for evading a peace officer. As to the current offense, defendant was driving
75 miles per hour in a residential district, in the middle of the day, and “T-boned” another
driver, totaling both cars. The People concluded defendant fell squarely within the spirit
of the Three Strikes law.

       The probation report noted defendant’s record reflected eight prior felony
convictions, including four vehicle theft convictions (Veh. Code, § 10851), two drug
possession convictions (Health & Saf., § 11377, subd. (a)), another conviction for
willfully and wantonly evading a peace officer (Veh. Code, § 2800.2), and an assault
(Pen. Code, § 245, subd. (b)). His most recent felony conviction was sustained in April
2012. Defendant was on probation for that conviction at the time he committed the
current offense. His record also reflected 11 misdemeanor convictions, including
convictions for theft, assault, drug possession, and multiple convictions for driving
without a license. Defendant’s prior strike conviction occurred when defendant and his
mother arrived at the home of a suspected drug dealer while officers were conducting a
search. An officer approached defendant and ordered him out of the car. Defendant
started his engine and attempted to drive away. The officer partially climbed into the car
and turned the engine off. Defendant restarted the engine and moved the car in reverse,
then abruptly stopped the car. The officer fell out of the car. Additional officers
responded and defendant turned, then accelerated in an apparent attempt to strike an
officer. The officers fired at defendant as he successfully escaped. Defendant was later


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found hiding in a nearby backyard. The report also noted defendant reported he started
using methamphetamine when he was 13 years old and, at the time of the offense, was
using daily.

       The trial court acknowledged the difficulty of drug problems. The court also
noted defendant’s criminal record and that he had not led a legally blameless life for any
significant period of time since his strike conviction. Rather, there was “crime after
crime after crime after crime, conviction, conviction, conviction, conviction.” Defendant
was repeatedly incarcerated from the 1980’s until his arrest in the current case.
Accordingly, the court found defendant did not fall outside the spirit of the Three Strikes
law and denied defendant’s Romero motion. The trial court sentenced defendant to an
aggregate term of eight years four months in state prison.

                                       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. (§ 1385; People v. Williams (1998) 17 Cal.4th 148, 161; 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 a motion was arbitrary or irrational, such
as where the trial court was not aware of its discretion, considered impermissible factors,



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or imposed a sentence that is absurd under the particular facts of the case. (Id. at pp. 376-
377.)

        Defendant’s arguments on appeal largely restate the claims he made in the trial
court. He contends the trial court abused its discretion in refusing to strike a prior serious
felony conviction because his strike offense was remote in time, “almost 24 years”
earlier. He argues current offenses involved the same course of conduct and no violence,
and none of his intervening convictions involved violence. Defendant also argues his
long history of substance abuse should mitigate in his favor and that, without the prior
strikes against him, his potential sentence of five years eight months in prison would have
been a more just punishment. Defendant also contends the trial court did not properly
consider the remoteness of his prior strike, the nature and circumstances of the present
offense, the lack of violence in his intervening criminal history, the effect of drugs on his
criminal history, and the appropriate punishment for his current offense.

        The record here does not affirmatively demonstrate the trial court failed to
consider all the relevant factors in ruling on defendant’s Romero motion. Those factors,
and the specific claims defendant now makes, were thoroughly covered in the briefs filed
by the parties below and in oral argument before the trial court. 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 defendant’s criminal record do not
affirmatively demonstrate the court considered only that factor in ruling on the motion.
Defendant had four prior convictions for vehicle theft and a prior conviction for evading
a peace officer. His strike conviction also arose in the context of his attempt to evade
arrest and escape from police officers. Defendant has demonstrated an ongoing pattern of
criminal behavior that puts people at risk on the roadways in his attempts to escape
responsibility for his actions. There is no basis for us to conclude the court did not




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appreciate the scope of its discretion and failed to properly exercise it in denying the
Romero motion.

       Defendant argues that had the trial court dismissed a strike, he still would have
been subject to a term of nearly six years in prison, which would have served the
“furtherance of justice.” By his own admission, defendant puts people’s lives at risk of
death or great injury by driving at high speeds to evade the officers pursuing him.
Defendant was 45 years old at the time of sentencing, and between 1989 and 2012,
managed to be convicted of eight felonies and 11 misdemeanors, while for much of that
time being incarcerated.

       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.


                                                            BUTZ               , Acting P. J.



We concur:



      MAURO                 , J.



      DUARTE                , J.




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