Filed 10/14/14 P. v. Williams CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039393
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1121004)

         v.

RODNEY CHE WILLIAMS,

         Defendant and Appellant.



         Defendant Rodney Che Williams appeals from a judgment of conviction entered
after he pleaded no contest to the following offenses: one count of failure to register as a
sex offender (Pen. Code, § 290.011, subd. (b)),1 one count of possession of marijuana for
sale (Health & Saf. Code, § 11359), three counts of felon in possession of a firearm
(former § 12021, subd. (a)(1)), and one count of possession of ammunition (former
§ 12316, subd. (b)). Defendant also admitted that he had two prior strike convictions
(§§ 667, subds. (b)-(i)/1170.12) and had served five prior prison terms (§ 667.5,
subd. (b)). The trial court sentenced defendant to 25 years to life. On appeal, defendant
contends that the trial court erred when it denied his request to strike one of his prior
strike convictions. We find no error and affirm the judgment.




1
         All further unspecified statutory references are to the Penal Code.
                                   I. Statement of Facts2
       Defendant was required to register as a sex offender and had registered numerous
times as a transient. However, law enforcement discovered that defendant was not a
transient, but had been living at a residence in San Jose for at least two years. Defendant
had also made other false statements on his registration form. Though defendant was
employed at the Improv Night Club and the owner of Newskool Tattoo Parlor, he did not
list his employment on the form. He also did not list his vehicles on the form. On
December 1, 2011, police arrested defendant at his residence and served a search warrant.
       Defendant stated that he understood that he was required to register monthly, but
his registration was late from July to October because his mother was ill. He also
admitted that he stays at his girlfriend’s house “regularly,” drives a Volkswagen Golf,
and is employed. He did not register his address because “he has side girlfriends” and
did not want them to be able to locate each other. When defendant was arrested, he had
house and car keys.
       The police conducted a search of defendant’s residence and found three loaded
pistols in a safe. They also found ammunition and approximately 13 pounds of
marijuana. Defendant stated that he was holding the guns for a friend. He also indicated
that the bullets did not belong to him, but the marijuana did. At the time, he claimed that
the marijuana was for personal use.
       Defendant told the probation officer that he was not registering his address
because he did not want people checking the Megan’s Law database and locating him.
He did not list his employer or vehicle on the registration form for the same reason.
Defendant was also in the process of obtaining custody of his 10-year-old daughter.
       Defendant stated that one of the pistols was not operable and he was aware that he
was prohibited from possessing firearms. However, he did not think that he would be


2
       The statement of facts is based on the probation report.
                                             2
caught, because he never carried them. Defendant had purchased the marijuana from one
dispensary and was in the process of selling it to another dispensary.
       Regarding his prior strike convictions for rape, defendant claimed that the victim
consented and he is not “violent person.” He also stated that “this behavior was not
indicative of his character,” and thus he “never felt comfortable with his registration
requirements as a sex offender.”
       The probation reports also summarized the facts of the prior strike convictions.
Defendant told a 14-year-old girl that he would drive her home. Instead, he, two
codefendants, and a juvenile took the girl to a remote area where they repeatedly raped
her. While the sexual assaults were occurring, the others, who were watching and
laughing, stood outside the vehicle. In 1991, defendant was sentenced to seven years for
two separate violations of section 261, subdivision (a)(2).


                                        II. Discussion
       Defendant contends that the trial court erred when it denied his request to strike
one of his prior strike convictions pursuant to People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero).


                                       A. Background
       Before defendant entered his plea, the trial court stated that the maximum sentence
was 100 years to life plus five years. Both the trial court and the parties expected to hold
a hearing on defendant’s request to strike his prior strike convictions after the probation
report was prepared.
       The prosecutor filed opposition to what it anticipated would be defendant’s
request to dismiss the prior strike convictions. About two weeks later, defendant filed a
request pursuant to Romero, supra, 13 Cal.4th 497.


                                              3
       At the hearing, the trial court stated that it had reviewed the filings, including the
exhibits, as well as the probation report. The trial court then stated: “And, [defense
counsel], this is your burden, so if you could go ahead. And you had people that came up
from southern California and I wanted to make sure they had their voice.” Several
relatives and a friend then addressed the court on defendant’s behalf.
       Following argument by counsel, the trial court stated: “Okay. I just want to
indicate a couple of things. These, on the three strike, are always the most difficult to
decide. I am following the guidelines set out in the case of People v. Williams at 17
Cal.4th 148. [¶] The current offense involves a situation that occurred back on
December 1st of 2011, a little over a year ago, where a search warrant was issued on the
defendant’s residence and where his suspected residence was. It was discovered that his
registration was in violation. He had not bothered to do that for a while. There was
nothing regarding his employment or automobile ownership. [¶] During the course of
this search, there pistols and ammunition were found. And as [defense counsel] points
out, they were, however, in a safe. 13 pounds of marijuana was recovered at the scene,
and it was identified for personal use. [¶] The reason for the failure to provide the proper
registration was to avoid, according to the defendant, other girlfriends from seeing where
his residences were under Megan’s law. [¶] The strikes, and there are two of them, are
from a June 16th -- I’m sorry, 17th and 18th of 1990 where it was essentially a rape in
concert where the defendant, at age 19, along with some associates, had picked up a 14-
year-old at a carnival. She was taken into the east foothills where she was repeatedly
sexually assaulted. The jury convicted the defendant of two counts, and the sentence was
7 years. [¶] The Court at looking at the background, character, and prospects of the
defendant notes a couple of factors. First of all, I have no question whatsoever that he
has employment. He worked at The Improv. He owns a tattoo parlor and has the ability
to stay employed and make a gainful, honest living, if that’s what he had [a] desire to do.
[¶] I also have no question whatsoever from reading the letters that were filed with the
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Court and hearing and seeing his family member and friends here in court that they
honestly and truly believe that he should not be subjected to this particular law because
he’s a good person, according to them. [¶] In this particular case, I have had, I don’t
know how many, three strike cases that implicated 290 registration, and I’ve taken a view
on these cases that there are essentially two types of violators: Those who, through
negligence or omission, simply forget, who have done it in the past. They have registered
in the past and just simply on one day forgot to do it. There are also other people who, as
[the prosecutor] has pointed out, intentionally fly under the radar to avoid dete[c]tion for
any number of reasons, all of them not good. And the defendant has indicated that that’s
what he does. [¶] Circumstantial evidence supports the fact that there was other activity
going on in terms of 13 pounds of marijuana [and] the possession of the pistols and the
ammunition. [¶] Much has been made of the fact that there is a single docket that the
two strikes emerged from, and that is also true. It’s also true that they’re fairly old. [¶] I
do not put much stock in either one of them. Each one of these acts that the defendant
was committed or the defendant was convicted of by the jury manifest a separate intent
on his part to violate this young woman; and to do it in a pac[k], I think, inherited the
extra punishment that the law provides. [¶] What is more troubling, as far as the Court is
concerned, is his criminal history. While he was out on bail on the rape in February ‘91,
there was a sale of crack cocaine, transportation of cocaine, and out-on-bail enhancement,
and he received 3 years/4 months consecutive to the rape charge. [¶] In 1997, after the
three strikes law was enacted, he apparently -- or 1998, he suffered a violation of 290.2,
another violation of registration where he received a 32-month sentence. At that point,
the D.A.’s Office had acted through their committee to dispose of one of the strikes. [¶]
[In] 1998, he violates parole and successfully completes parole in 2002. [¶] In 2003,
during the course of an investigation for another 290, he is involved in a 148.10, resisting
arrest with injury to the officer. The officer had ripped up his ACL in the pursuit of the
defendant. The Court under Judge Murphy had ordered a 4-year term. It was reversed,
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and the defendant received a 32-month sentence. [¶] In 2006, the defendant was charged
with a possession of methamphetamine and a resisting arrest and received a 32-month
top/bottom. [¶] At every stage of this defendant’s criminal proceeding, somebody has
rushed in to rescue him. It may have been excellent lawyering that he had in the past. It
may have been a feeling on the part of the District Attorney’s Office that they did not
want to pursue on 290.2 and 11377 charges the extra strike that could have been
plead[ed] as it was in this particular case. [¶] I view this as simply not understanding
and appreciating your own circumstances. Mr. Williams, you are a walking three-strike
the minute you were paroled from prison, and for whatever reasons, people did come in
to rescue you. . . . [¶] Unfortunately, in this particular case, I think the end of the road is
here. I am denying the motion to strike one or both of the prior convictions.”


                                           B. Analysis
       “The three strikes law is a comprehensive integrated sentencing scheme that
applies to all cases coming within its terms. [Citation.]” (People v. Casper (2004) 33
Cal.4th 38, 41.) When an individual who has been convicted of a felony defense and has
previously been convicted of two or more serious or violent felonies, he or she shall be
sentenced to a minimum term of 25 years to life for each conviction. (§ 667,
subd. (e)(2)(A)(ii).) Section 13853 authorizes trial courts to dismiss charged strike
convictions in the “furtherance of justice.” (Romero, supra, 13 Cal.4th at pp. 529-530.)
       “[I]n ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’
pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in
question must consider whether, in light of the nature and circumstances of his present

3
       Section 1385, subdivision (a) provides in relevant part: “The judge or magistrate
may, either of his or her own motion or upon the application of the prosecuting attorney,
and in furtherance of justice, order an action to be dismissed.”
                                               6
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 presently
been convicted of one or more serious felonies and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161.)
       “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to
review under the deferential abuse of discretion standard.” (People v. Carmony (2004)
33 Cal.4th 367, 374 (Carmony).) A trial court’s decision not to grant Romero relief
constitutes an abuse of discretion only in extraordinary cases in which no reasonable
person could disagree that the defendant fell outside the spirit of the three strikes law.
(Carmony, at pp. 378-379.) There are also two circumstances in which a trial court’s
denial under Romero constitutes an abuse of discretion: “the trial court was not ‘aware of
its discretion’ to dismiss [citation], or where the court considered impermissible factors in
declining to dismiss [citation].” (Carmony, at p. 378.)
       Defendant contends that the trial court made three errors in denying his Romero
request. The Attorney General argues that since he did not object to any of these alleged
errors, he has forfeited these claims. (People v. Scott (1994) 9 Cal.4th 331, 351-353.)
Even assuming that defendant’s claims have not been forfeited, we reject them.
       Defendant first argues that the trial court improperly found that defendant had the
burden of showing that Romero relief should be granted.
       As the California Supreme Court has explained: “A defendant has no right to
make a motion, and the trial court has no obligation to make a ruling, under section 1385.
But he or she does have the right to ‘invite the court to exercise its power by an
application to strike a count or allegation of an accusatory pleading, and the court must
consider evidence offered by the defendant in support of his assertion that the dismissal
would be in furtherance of justice.’ [Citation.] And ‘[w]hen the balance falls clearly in
favor of the defendant, a trial court not only may but should exercise the powers granted
                                              7
to him by the Legislature and grant a dismissal in the interests of justice.’ [Citation.]”
(Carmony, supra, 33 Cal.4th at p. 375.) Thus, a defendant who “invites” the trial court to
exercise its statutory authority under section 1385 to strike a strike conviction does not
incur a burden of producing evidence or of proof.
       Here, after the trial court stated which documents it had reviewed prior to the
hearing, it stated: “And, [defense counsel], this is your burden, so if you could go ahead.
And you had people that came up from southern California and I wanted to make sure
they had their voice.” Defense counsel then stated that she had counseled them as to how
to address the court and requested that they be allowed to speak at the podium in a
narrative form. Several relatives and a friend then addressed the court on defendant’s
behalf. Based on this record, we are not convinced that the trial court was referring to
either a defense burden of producing evidence or of proof. When taken in context, the
trial court’s reference to a defense burden may well have been to defense counsel’s
obligation to organize the various individuals who wanted to address the court on
defendant’s behalf. Given the ambiguity of the trial court’s statement and the
presumption that trial courts are aware of and follow the law (People v. Stowell (2003) 31
Cal.4th 1107, 1114), we reject defendant’s argument.
       Noting that he had registered as a transient, defendant next contends that the trial
court incorrectly relied on its erroneous belief that defendant “had not bothered” to
register as a sex offender for some time. There is no merit to this contention.
       The trial court stated: “It was discovered that his registration was in violation. He
had not bothered to do that for a while. There was nothing regarding his employment or
automobile ownership.” Thus, when considered in context, the trial court was
commenting on the fact that defendant had failed to register as required. The trial court
later commented that there are individuals who “intentionally fly under the radar to avoid
dete[c]tion for any number of reasons . . . . And the defendant has indicated that that’s
what he does.” Based on what is at most an ambiguous comment, defendant has not met
                                              8
his burden of demonstrating the existence of error on appeal. (People v. Garza (2005) 35
Cal.4th 866, 881.)
         Defendant also contends that the trial court erroneously believed that defendant
had been convicted of resisting arrest resulting in serious bodily injury to a peace officer
(§ 148.10).
         A defendant may be denied due process when a trial court relies on incorrect
information in its sentencing decision. (People v. Eckley (2004) 123 Cal.App.4th 1072,
1080.)
         Here, the prosecutor provided a detailed summary of defendant’s criminal history,
including a May 2003 incident. During an investigation of defendant’s compliance with
his registration requirement, an officer was injured while chasing him. Defendant was
charged with a violation of section 148.10, later pleaded no contest to the charge, and was
sentenced to a four-year term. This court reversed the conviction on the ground that the
trial court had misadvised defendant during plea proceedings. On remand, defendant
pleaded guilty to an amended charge and the section 148.10 charge was dismissed.
Defendant was then sentenced to 32 months in state prison. The trial court stated that it
had read the filings and exhibits prior to the Romero hearing. During its summary of
defendant’s criminal history, the trial court stated: “In 2003, during the course of an
investigation for another 290, he is involved in a 148.10, resisting arrest with injury to the
officer. The officer had ripped up his ACL in the pursuit of the defendant. The Court
under Judge Murphy had ordered a 4-year term. It was reversed, and the defendant
received a 32-month sentence.” Thus, though the trial court’s comments did not include
all the details in the prosecutor’s memorandum, it did acknowledge that the section
148.10 charge was reversed on appeal and defendant was later sentenced to 32 months.
Accordingly, the record does not support defendant’s claim that the trial court relied on a
felony offense of which he had not been convicted.


                                              9
      In sum, we conclude that defendant has failed to show that the trial court erred in
denying his request for Romero relief.


                                     III.   Disposition
      The judgment is affirmed.




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                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Elia, J.




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