Filed 10/7/13 P. v. Perkins 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,

                   Plaintiff and Respondent,                                                 C072924

         v.                                                                      (Super. Ct. No. 12F01436)

DANTE PERKINS,

                   Defendant and Appellant.




         A jury convicted defendant Dante Perkins of carjacking, second degree robbery
and possession of a firearm by a felon. The trial court found true an allegation that
defendant had a prior strike conviction, denied defendant‟s request to dismiss the prior
strike (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497),
and sentenced defendant to 35 years eight months in state prison.




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       Defendant now contends the trial court abused its discretion in denying his request
to dismiss the prior strike. Concluding there was no abuse of discretion, we will affirm
the judgment.
                                       BACKGROUND
       Parris Pruitt pulled his car into the parking lot of Greenhaven Liquor store. His
girlfriend and their son remained in the car while Pruitt entered the store to buy
cigarettes. Pruitt left the keys in the ignition.
       As Pruitt walked back to the car, defendant pointed a handgun at Pruitt‟s chest.
Defendant said: “Don‟t get in the car. I‟ll gas you if you open the door.” Pruitt
understood the word “gas” to mean “shoot.” Defendant took the cell phone from Pruitt‟s
hand and got into the car. Pruitt ran back into the liquor store to call 9-1-1. Defendant
pointed the gun at Pruitt‟s girlfriend and told her to get out of the car or he would shoot
up the car. The girlfriend and child left. Defendant subsequently sold Pruitt‟s car.
       In denying defendant‟s request to dismiss the prior strike, the trial court
considered, among other things, defendant‟s prior criminal history and noted that his
prior strike conviction (a 2008 robbery) was a violent felony and was relatively recent.
       Defendant was born in 1991; he was 21 years old at the time of the instant
offenses. His prior record included sustained juvenile delinquency petitions for a
misdemeanor vehicle theft in 2006, two felony vehicle thefts in 2008, and the 2008
robbery. He also had adult convictions for misdemeanor possession of methamphetamine
in 2009, resisting arrest in 2010, and accessory to burglary in 2011.
       In the 2008 robbery, defendant and a cohort confronted a Round Table Pizza
employee making a pizza delivery. The cohort pointed a gun at the victim and demanded
money. When the victim resisted, defendant and his cohort punched and kicked the
victim. The victim told the attackers they could find money in the victim‟s car; defendant
and his cohort took $300 from the victim‟s car and fled in another vehicle. Defendant
later admitted the crime and admitted membership in the Guttah Boyz gang.

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                                        DISCUSSION
       Defendant contends the trial court abused its discretion in denying his request to
dismiss the prior strike.
       We review a trial court decision declining to dismiss a prior strike for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) In so doing, we are guided
by two fundamental precepts. “First, „ “[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ‟ [Citations.] Second, a „ “decision
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.‟ ” ‟ [Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (Id. at pp. 376-377.)
       Thus, the party challenging a ruling under Penal Code section 1385 has the burden
to show the trial court ruled in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice. (People v. Romero (2002) 99 Cal.App.4th
1418, 1433-1434.) Absent such a showing, we must presume the trial court acted to
achieve legitimate sentencing objectives and may not set aside the trial court‟s
discretionary determination to impose a particular sentence. (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977-978.)
       Defendant admits the instant offenses were very serious and that he has a lengthy
criminal record. Nonetheless, he points out that he is young and that several of his prior
convictions were misdemeanors.
       Regarding the prior strike conviction, defendant claims he and his cohort did not
use a “real” firearm, they only used a BB gun, and thus defendant exercised caution to

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avoid harm to persons. (Cal. Rules of Court, rule 4.423(a)(6).) Defendant further claims
that because it was his practice to use a “fake” gun, and because the weapon used for the
instant offenses was never found, there remains a significant doubt that a real gun was
used for the instant offenses. He adds that even after dismissal of the prior strike, he
would still be subject to a 25-year sentence.
       Defendant has not established that he falls outside the spirit of the three strikes
law. By his own admission, he has a lengthy criminal history. Moreover, contrary to his
assertion, he did not exercise caution to avoid harming his robbery victim; rather, he and
his cohort punched and kicked the victim. Defendant‟s most recent offenses include
three violent felonies and one serious felony. On this record, the trial court did not abuse
its discretion in declining to dismiss the prior strike.
                                        DISPOSITION
       The judgment is affirmed.




                                                                 MAURO                       , J.


We concur:


               BLEASE                   , Acting P. J.


               ROBIE                    , J.




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