Filed 4/4/14 P. v. Hunter CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064063

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN290070-2)

GRANT MACGREGOR HUNTER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert J.

Kearney, Judge. Affirmed.



         Siri Shetty, under appointment by the Court of Appeal, for the Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillett, Julie L. Garland, Assistant

Attorneys General, William M. Wood, Scott C. Taylor, Deputy Attorneys General for the

Plaintiff and Respondent.
       A jury convicted Grant MacGregor Hunter of the first degree murder of Michael

Sahagun (Pen. Code,1 § 187, subd. (a); count 1), attempted robbery (§§ 211, 664; count

2), and burglary (§ 459; count 3). It found true allegations that Hunter was a principal in

the commission of the offenses and vicariously liable within the meaning of section

12022, subdivision (a)(1), as well as special-circumstance allegations that the murder was

committed during the commission of a burglary and attempted robbery. (§ 190.2, subd.

(a)(17).) After Hunter waived a jury trial, the trial court found true that Hunter had

suffered a serious felony prior conviction and a strike prior conviction. (§§ 667, subd.

(a)(1), 668, 1192.7, subd. (c), 667, subds. (b)-(i), 1170.12.) On count 1, it sentenced

Hunter to life without the possibility of parole, plus one year on the firearm use allegation

and a consecutive five-year enhancement for the serious felony. The court stayed the

remaining prison terms and enhancements under section 654.

       Hunter contends (1) there is insufficient evidence to support the jury's felony-

murder special-circumstance findings; (2) the trial court abused its discretion by

admitting evidence elicited in violation of his Fifth Amendment rights against compelled

self-incrimination under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); and (3) the

court abused its discretion by refusing to dismiss his prior residential burglary conviction.

We affirm.




1      Statutory references are to the Penal Code unless otherwise specified.
                                             2
                   FACTUAL AND PROCEDURAL BACKGROUND

       In March 2011, Sean Meadows was working as a confidential informant for the

U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). He had known

Hunter since about 2006. In late March 2011, Meadows received a telephone call from

Hunter in which Hunter told him he and Mercedes Yorba were going to rob Yorba's drug

dealer, a man named Mike in Carlsbad. Hunter told Meadows it was Yorba's "deal"; she

was going to call Mike and place an order, then they would go into Mike's garage and

take an ounce of heroin, an ounce of "speed" and $2,000 in cash. Hunter asked Meadows

if he could be a driver and also if Meadows knew anything about Mike. Meadows did

not tell Hunter he would drive; he told Hunter it was not worth it. Meadows immediately

communicated the information to his ATF handler, and later tried to get additional

information from Hunter to try to stop the plan. On April 1, 2011, Meadows received

another call from Hunter, who told him "he had screwed up and it's in the paper." Hunter

asked Meadows for money to pay for a motel room. Meadows reported the conversation

to his ATF handler.

       Meadows was fitted with a recording device and went to the motel room where

Hunter, Yorba and another man, Gary Gomez, were staying. Meadows asked Hunter

what had happened, and Hunter said the man "was supposed to be a punk and jumped up

and put his hand behind his back." During their conversation, Hunter told Meadows that

the man took a 12-gauge shotgun shot to the stomach and "a knife to the heart." Hunter

said, "This was . . . dude then he jumped up like that, should have just let me stab him . . .



                                              3
Homeboy that blasted him too at the same time." Hunter told Meadows he obtained a

half an ounce of drugs, and that the weapon used was in San Diego.

      Heather Strauch, who had been arrested and charged with Sahagun's murder as

well as burglary and attempted robbery, testified that in March 2011, she saw that her

boyfriend, Joseph Verkade, had obtained a shotgun. Strauch knew Yorba at the time. On

March 31, 2011, Strauch received a call from Yorba, who said she had been ripped off

and wanted to collect what was owed her. Yorba then spoke with Verkade, telling him

she needed backup. Verkade confirmed with Yorba that he needed to bring his shotgun,

and he, Strauch and Michael Gault prepared to leave in Gault's pickup truck to meet with

Yorba, with Verkade's shotgun wrapped in clothing on the floorboard in the back of the

truck. They arrived at a motel where Yorba, Hunter and Jason Breer2 came out and

entered the truck. Hunter sat next to Yorba in the backseat. Strauch placed the shotgun

between her legs.

      During their drive, the group discussed the plan: Yorba was going to go in first to

talk to the man and Verkade, Hunter and Breer would come in afterwards so it would not

be obvious that they were together. Shortly before arriving at the residence, Yorba said

she wanted the man to be scared so they could rob him without anyone having to get hurt.

Gault parked a couple of houses away from the house, and everyone was exiting the truck

when Verkade took the shotgun from Strauch, who handed it to him in the front seat.

Strauch told Verkade to be careful because the gun was loaded. At that point, Yorba,


2     The probation officer's post-sentence report indicates that Jason's last name was
Greer. Witnesses at trial described Jason's last name as "Breer."
                                            4
Hunter and Breer were standing right by the truck's open doors. Verkade left the truck

and he, Yorba, Hunter and Breer walked up to the house. The next thing Strauch heard

was a gunshot. After everyone had entered the truck, Breer asked Hunter several times,

"Where is it?" and Hunter began digging around his own pockets, saying, "I stabbed him

after you shot him before I went into his pockets."

       At about the time of the shooting, Frances Sahagun, who realized her husband was

not in the house, looked out the window and saw three people by her driveway who

looked like they had been running. She heard a female voice say, "I told you so," and the

individuals disappeared. Frances Sahagun ran to the garage, where she found her

husband on the floor.

       The county chief deputy medical examiner determined Sahagun died from a

shotgun wound to his chest. He also observed a linear defect in Sahagun's wound that

could have been from the shotgun blast or evidence of a possible stabbing.

       Hunter was interviewed by a police officer on two occasions after his arrest. He

told the officer he had come up with the plan, which was to scare Sahagun, who was then

supposed to hand over money without a fight. In another interview, Hunter told the

officer they had discussed the robbery for four days beforehand, and he knew they were

going to rob Sahagun before he got into Gault's truck. Hunter stated the plan was to just

walk in and walk out without violence, but before entering Sahagun's garage, he saw

Verkade had brought a sawed-off shotgun. Hunter recounted that when Strauch handed

him the gun, she told him it was loaded with a single shot. He said Verkade shot

Sahagun and they ran.

                                             5
       On April 5, 2011, Hunter called Meadows from jail and they spoke about the

incident. Hunter admitted he was involved and had stabbed the victim in the heart,

though he claimed he did not stab him "that bad." Hunter also told Meadows he had

struck the victim in the face; that he "knocked him in the head and . . . the dude . . . blew

his . . . guts all over the room." Hunter also called another man. Hunter admitted he was

there when the victim was killed, and explained that the man "was suppose [sic] to just be

a . . . push over and he jumped out of the . . . chair with a . . . 45," "[s]o he got his

stomach . . . blown to pieces." When the man said the news had reported Hunter had

stabbed the man, Hunter replied, "Yeah, that happened too."

       The next day, while housed in a medical unit, Hunter described his charges to

Deputy Sheriff Robert Rudisill, who was working in that unit. Deputy Sheriff Rudisill

replied, "Wow." Hunter then told Rudisill there were three of them in the garage and two

of them had weapons; that he had the knife, not the shotgun.3




3       At Hunter's preliminary hearing, Deputy Rudisill testified that in April 2011 he
was assigned to the Vista Detention Facility's medical unit and saw Hunter had trash in
his cell. After the deputy asked Hunter to gather the trash and got a trash can for him, the
deputy asked Hunter why he was in the medical unit. Hunter responded, "I'm here for a
187. I'm going down for life." Deputy Rudisill responded, "Wow." Hunter then said,
"There is three of us [sic] in the garage, two of us had weapons. I had the knife, not the
shotgun." Before trial, the court excluded Hunter's statement: "I'm here for a 187. I'm
going down for life." The court permitted Hunter's other statement only against Hunter,
not against his codefendants.
                                                6
                                       DISCUSSION

                             I. Special-Circumstance Finding

       Hunter contends the evidence is insufficient to sustain the jury's verdict on the

special-circumstance allegations. He points out Yorba "instigated" the chain of events

leading to Sahagun's murder, and he was neither essential to the scheme nor could he

anticipate the shooting because "no evidence suggested any violence was contemplated

before the robbery." According to Hunter, as a result the jury could not determine that he

harbored an intent to kill or, as an aider and abettor, was a major participant in the

robbery and acted with reckless indifference to life.

A. Standard of Review

       Well settled standards apply to Hunter's sufficiency of the evidence challenge. We

determine " ' "whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." [Citations.] We examine the record to determine "whether

it shows evidence that is reasonable, credible and of solid value from which a rational

trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]

Further, "the appellate court presumes in support of the judgment the existence of every

fact the trier could reasonably deduce from the evidence." [Citation.] This standard

applies whether direct or circumstantial evidence is involved. "Although it is the jury's

duty to acquit a defendant if it finds the circumstantial evidence susceptible of two

reasonable interpretations, one of which suggests guilt and the other innocence, it is the

jury, not the appellate court that must be convinced of the defendant's guilt beyond a

                                              7
reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's

findings, the opinion of the reviewing court that the circumstances might also reasonably

be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " ' "

(People v. Virgil (2011) 51 Cal.4th 1210, 1263.) Reversal for insufficient evidence "is

unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient

substantial evidence to support' " the jury's verdict. (People v. Bolin (1998) 18 Cal.4th

297, 331.)

       We review a challenge to the sufficiency of the evidence to support a special-

circumstance finding in the same manner as a challenge to the sufficiency of the evidence

to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1229; see People v.

Burney (2009) 47 Cal.4th 203, 253 [applying standard to support felony murder

predicated on robbery].)

B. Law

       "Under the felony-murder rule, a murder 'committed in the perpetration of, or

attempt to perpetrate' one of several enumerated felonies, including robbery, is first

degree murder. [Citation.] The robbery-murder special circumstance applies to a murder

'committed while the defendant was engaged in . . . the commission of, [or] attempted

commission of' robbery. [Citation.] '[T]o prove a felony-murder special-circumstance

allegation, the prosecution must show that the defendant had an independent purpose for

the commission of the felony, that is, the commission of the felony was not merely

incidental to an intended murder.' [Citations.] To prove a robbery-murder special



                                              8
circumstance, the prosecution must prove the defendant formed the intent to steal before

or while killing the victim." (People v. Lindberg (2008) 45 Cal.4th 1, 27-28.)4

       When the defendant is an accomplice rather than the actual killer, the People must

plead and prove the defendant either intended to kill (§ 190.2, subd. (c)) or acted with

"reckless indifference to human life" while a "major participant" in the underlying felony.

(§ 190.2, subd. (d)5; see People v. Thompson (2010) 49 Cal.4th 79, 125-126 [for special

circumstances based on the enumerated felonies in paragraph (17) of subdivision (a) of

§ 190.2, which includes robbery, an aider and abettor must have been a major participant

and have acted with reckless indifference to human life].) " '[T]he culpable mental state

of "reckless indifference to life" is one in which the defendant "knowingly engage[es] in

criminal activities known to carry a grave risk of death" . . . .' [Citation.] This mental

state thus requires the defendant be 'subjectively aware that his or her participation in the



4       " '[A] jury deciding the truth of the special circumstance allegation is not required
to assign a hierarchy to the defendant's motives in order to determine which of multiple
concurrent intents was "primary," but instead the jury need only determine whether
commission of the underlying felony was or was not merely incidental to the murder.'
[Citation.] '[A] "concurrent intent to kill and to commit an independent felony will
support a felony-murder special circumstance." ' " (People v. Castaneda (2011) 51
Cal.4th 1292, 1326-1327.)

5      Subdivision (d) of section 190.2 states: "Notwithstanding subdivision (c), every
person, not the actual killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state prison for life without
the possibility of parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true . . . ."

                                              9
felony involved a grave risk of death.' " (People v. Mil (2012) 53 Cal.4th 400, 417,

quoting People v. Estrada (1995) 11 Cal.4th 568, 577.)

C. Analysis

       Hunter does not challenge the sufficiency of the evidence of his conviction for

murder in the first degree, or the attempted robbery or burglary. He maintains only that

he was neither a "major participant" in the robbery nor played a major role in it, and,

under People v. Hodgson (2003) 111 Cal.App.4th 566, given the number of individuals

involved, his presence was not critical to its success. Citing People v. Proby (1998) 60

Cal.App.4th 922, he argues that because he did not provide the weapon or have any

subjective awareness Verkade would resort to deadly force, there is no evidence he acted

with knowledge or appreciation of the grave risk to human life created by his

participation in the underlying felony. Finally, Hunter argues that the firing of a single

shotgun shot to Sahagun's chest happened too quickly for him to intervene or render aid.

       None of these contentions warrant reversal of the jury's special-circumstance

finding. Courts have found substantial evidence of reckless indifference to life under

circumstances where, as here, a defendant, knowing about the presence of a weapon, has

continued to assist with a violent robbery and/or flee rather than come to the injured

victim's aid. (See People v. Lopez (2011) 198 Cal.App.4th 1106, 1115-1118 [shooter's

testimony that accomplice knew he had a gun and was with him when he picked it up, as

well as evidence the accomplice may have been planning to "jack" the victim behind his

back supported jury's conclusion she acted with reckless indifference to the life of the

man she lured into the alley]; People v. Smith (2005) 135 Cal.App.4th 914, 927-928,

                                             10
overruled on other grounds as stated in People v. Garcia (2008) 168 Cal.App.4th 261,

291-292; People v. Hodgson, supra, 111 Cal.App.4th at pp. 579-580 [defendant helped

his codefendant, who planned to rob the victim, by holding a garage door open and after

hearing a shot, continued to assist by trying to keep the garage gate from closing until the

codefendant could escape with the loot; the "appellant's role was more 'notable and

conspicuous'—and also more essential—than if the shooter had been assisted by a coterie

of confederates"]; People v. Proby, supra, 60 Cal.App.4th at p. 929 [defendant knew of

codefendant's willingness to do violence and provided him with a gun, and continued to

rob a restaurant, took money and left after the codefendant shot the victim in the back of

the head]; People v. Mora (1995) 39 Cal.App.4th 607, 617 [defendant helped plan a

night-time armed invasion, gave his accomplice a rifle, and personally carried the loot,

leaving one victim to die and threatening another; appellate court held that even if the

jury believed the defendant did not intend the victim to be killed, he was aware of the

"risk of resistance to such an armed invasion of the home and the extreme likelihood

death could result"]; People v. Bustos (1994) 23 Cal.App.4th 1747, 1754 [sufficient

evidence for special circumstance found where defendant was involved in planning the

robbery, knew another codefendant had a knife, went into the restroom and struggled

with the victim who was stabbed, and "fled together with his accomplices and the robbery

loot, leaving the victim to die"].)

       Here, the jury was properly instructed on the principles pertaining to proof of a

special circumstance as to an accomplice. Evidence from Strauch, as well as Hunter's

own admissions in phone calls and interviews that Hunter had participated in the

                                             11
planning of Sahagun's robbery and knew beforehand the robbery was going to occur, plus

his role as one of the three men whose presence was supposed to scare Sahagun into

submission, is substantial evidence that he had a conspicuous role and acted as a major

participant in the robbery. (Accord, People v. Bustos, supra, 23 Cal.App.4th at p. 1754;

People v. Proby, supra, 60 Cal.App.4th at p. 929.) A major participant need not be

armed or participate in the actual taking (People v. Hodgson, supra, 111 Cal.App.4th at p.

579), nor is a major participant required to be the "ringleader." (Proby, at p. 934.)

       Further, Hunter proceeded to participate in the attempted robbery and burglary

knowing Verkade was armed with the shotgun, and was present in the garage while

Verkade wielded it at Sahagun. He knew of the plan to scare Sahagun enough so he

would readily give up his drugs and money. To this end, Verkade used the shotgun in an

attempt to subdue Sahagun. And the use of a weapon to effect the robbery presented a

grave risk of death. Hunter simply fled with the others after Sahagun's shooting. This

constitutes substantial evidence Hunter knowingly engaged in criminal activity involving

a grave risk of death. (People v. Mil, supra, 53 Cal.4th at p. 417; People v. Lopez, supra,

198 Cal.App.4th at pp. 1115-1116; People v. Bustos, supra, 23 Cal.App.4th at pp. 1751,

1754-1755.)

              II. Admission of Hunter's Statements to Deputy Sheriff Rudisill

       Hunter contends the trial court erred by denying his motion to exclude the

incriminating statements he made to Deputy Rudisill; that under the relevant legal

standards he was in custody, subjected to custodial interrogation for purposes of

Miranda, and should have been given warnings before he gave those statements. Hunter

                                             12
argues admission of his statement was not harmless beyond a reasonable doubt given the

weakness of the prosecution's case as to the special-circumstance allegations, and thus his

admission to Deputy Rudisill that he possessed a knife during the crimes may have been

critical to the jury's conclusion.

A. Applicable Legal Principles

       In Miranda, supra, 384 U.S. at p. 444, the United States Supreme Court declared

that a person questioned by law enforcement officers after being "taken into custody or

otherwise deprived of his freedom of action in any significant way" must first "be warned

that he has a right to remain silent, that any statement he does make may be used as

evidence against him, and that he has a right to the presence of an attorney, either

retained or appointed." Under Miranda and its progeny, certain evidence obtained during

custodial interrogation is inadmissible for certain purposes in a criminal trial. (People v.

Thornton (2007) 41 Cal.4th 391, 432; People v. Nelson (2012) 53 Cal.4th 367, 374.)

       "The phrase 'custodial interrogation' is crucial. . . . The noun 'refers not only to

express questioning, but also to any words or actions on the part of the police . . . that the

police should know are reasonably likely to elicit an incriminating response from the

suspect.' " (People v. Mickey (1991) 54 Cal.3d 612, 648; People v. Mayfield (1997) 14

Cal.4th 668, 732.) For police questioning to be " 'interrogation,' " it must go beyond

questions "normally attendant to arrest and custody," i.e., "the police should know [the

questions] are reasonably likely to elicit an incriminating response . . . ." (Rhode Island

v. Innis (1980) 446 U.S. 291, 301, fns. omitted.)



                                              13
       Neither spontaneous nor volunteered statements are the products of interrogation;

thus they are not barred by the Fifth Amendment or subject to the requirements of

Miranda. (People v. Thornton, supra, 41 Cal.4th at p. 432; People v. Ray (1996) 13

Cal.4th 313, 337; People v. Franzen (2012) 210 Cal.App.4th 1193, 1201 [Miranda is not

violated where a defendant volunteers incriminating statements as part of a "casual

conversation"]; People v. Mickey, supra, 54 Cal.3d at p. 648; People v. Edwards (1991)

54 Cal.3d 787, 815 ["[V]olunteered statements not the product of interrogation are

admissible."]; People v. Gamache (2010) 48 Cal.4th 347, 388 ["small talk is permitted"].)

And, a police officer is not obligated to prevent a suspect from volunteering incriminating

statements. (Edwards, 54 Cal.3d at p. 816.) "Absent 'custodial interrogation,' Miranda

simply does not come into play." (People v. Mickey, at p. 648.)

B. Analysis

       We review de novo the trial court's decision denying Hunter's motion to suppress

under Miranda. (People v. Waidla (2000) 22 Cal.4th 690, 730; People v. Roldan (2005)

35 Cal.4th 646, 735, overruled on other grounds as stated in People v. Doolin (2009) 45

Cal.4th 390, 421 & fn. 22.) Doing so, we agree with the trial court that Hunter was not

subjected to interrogation by Deputy Rudisill's mere remark, "Wow." Deputy Rudisill's

neutral remark was not one designed to elicit an incriminating response; it was a "natural

conversational response" to defendant's own statements. (Accord, People v. Franzen,

supra, 210 Cal.App.4th at p. 1203 [detective's response, "What guy?" to exchange

initiated by the defendant was a normal response to the defendant's conversational

opening; it was not interrogation as commonly understood or contemplated by California

                                            14
Supreme Court authority].) Hunter's response, which was gratuitously volunteered, was

admissible. Thus, the trial court did not err in declining to exclude it from evidence.

                 III. Refusal to Dismiss Hunter's Prior Strike Conviction

       Hunter contends the trial court abused its discretion by refusing to dismiss his

2009 residential burglary conviction in the furtherance of justice. He points out the

burglary did not involve actual violence and he had received probation for it. He also

maintains his close relationship with his family suggested he was not beyond

rehabilitation, and his psychological problems mitigated his culpability. He argues the

trial court did not adequately consider his background and culpability in making its

decision.

       In denying Hunter's oral request, the trial court initially observed it was an

"academic exercise" in that it did not think the strike prior conviction would affect

Hunter's sentence. It acknowledged that in order to dismiss the strike, it would have to

find Hunter fell outside the purview of the "Three Strikes" law sentencing scheme or did

not fall within its spirit. The court reasoned that while Hunter's strike "was nonviolent in

that there was no violence on the individual" it was still "legally a violent offense because

of the [section] 667.5, [subdivision] (c)(21) allegation that was attached." The court

further pointed out Hunter's crime was recent and he was still on probation for it. For

those reasons, the court declined to exercise its discretion to dismiss the prior strike.

A. Legal Principles

       Section 1385, subdivision (a) provides in part that a trial court "may, either of [its]

own motion or upon the application of the prosecuting attorney, and in furtherance of

                                              15
justice, order an action to be dismissed." That provision permits a court to strike prior

felony conviction allegations in cases brought under the Three Strikes law. (People v.

Superior Ct. (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) However, a "court's

discretion to strike prior felony conviction allegations in furtherance of justice is limited.

Its exercise must proceed in strict compliance with section 1385[, subdivision] (a), and is

subject to review for abuse." (Id. at p. 530; People v. Carmony (2004) 33 Cal.4th 367,

374 (Carmony); In re Large (2007) 41 Cal.4th 538, 550.)

       In reviewing for abuse of discretion, we are guided by two principles. First,

" ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing

decision was irrational or arbitrary." ' " (Carmony, supra, 33 Cal.4th at pp. 376-377.)

Without this 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.' " ' " (Ibid.) Thus, "a trial court does not abuse its discretion unless its decision is

so irrational or arbitrary that no reasonable person could agree with it" or if " 'the

sentencing norms [established by the Three Strikes law may, as a matter of law,]

produce[ ] an "arbitrary, capricious, or patently absurd" result' under the specific facts of

a particular case." (Id. at pp. 377, 378.) " '[W]here the record demonstrates that the trial

court balanced the relevant facts and reached an impartial decision in conformity with the



                                              16
spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled

differently in the first instance.' " (Id. at p. 378.)

       To determine whether to strike an allegation "in furtherance of justice," the court

must balance " ' "the constitutional rights of the defendant, and the interests of society

represented by the People." ' " (Romero, supra, 13 Cal.4th at pp. 530-531, italics

omitted.) "[A] court abuses its discretion if it dismisses a case, or strikes a sentencing

allegation, solely 'to accommodate judicial convenience or because of court congestion.'

[Citation.] . . . Nor would a court act properly if 'guided solely by a personal antipathy

for the effect that the three strikes law would have on [a] defendant,' while ignoring

'defendant's background,' 'the nature of his present offenses,' and other 'individualized

considerations.' " (Id. at p. 531.) In deciding whether to dismiss a strike prior " 'in

furtherance of justice' . . . the court in question 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 [or she] had not previously been convicted of one or more

serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161

(Williams); see also In re Large, supra, 41 Cal.4th at p. 552.)

B. Analysis

       Under the above-summarized standards, it is not our role to decide the merits of

Hunter's request anew, but rather to assess whether the court patently abused its

discretion in balancing "the nature and circumstances of [his] present felonies and prior

                                                17
serious and/or violent felony convictions, and the particulars of [his] background,

character, and prospects." (Williams, supra, 17 Cal.4th at p. 161.) "The concept of

discretion implies that, at least in some cases, a decision may properly go either way."

(In re Large, supra, 41 Cal.4th at p. 553.) In keeping with this principle, the fact Hunter

can make a good argument for striking his strike prior in the furtherance of justice does

not require reversal. (Carmony, supra, 33 Cal.4th at p. 378 [it is not enough to show that

reasonable people might disagree about whether to strike one or more prior conviction

allegations].) Further, the trial court was not required to state reasons for denying the

motion. (In re Large, supra, 41 Cal.4th at p. 550.)6 Hunter "finds himself in the difficult

position of having to rebut the 'strong presumption' [citation] that the trial judge properly

exercised its discretion in refusing to strike a prior conviction allegation." (In re Large,

at p. 551.)

       Having reviewed the record, we conclude Hunter cannot show the trial court's

decision was arbitrary or capricious or the result absurd given the facts of this case. The

court had before it the details of Hunter's criminal history, the nature of Hunter's 2009

strike, and the nature of his current offenses. It was within reason for the court to


6       "While a court must explain its reasons for striking a prior [citations], no similar
requirement applies when a court declines to strike a prior [citation]. 'The absence of
such a requirement merely reflects the legislative presumption that a court acts properly
whenever it sentences a defendant in accordance with the three strikes law.' [Citation.]
'Thus, the 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.' "
(In re Large, supra, 41 Cal.4th at p. 550.)

                                             18
conclude, under all of the circumstances, Hunter was not wholly "outside the scheme's

spirit" (Williams, supra, 17 Cal.4th at p. 161), and that it should not strike Hunter's prior

strike. We cannot say the court's refusal to strike his strike prior was "so irrational or

arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at

p. 377.)

                                       DISPOSITI'ON

       The judgment is affirmed.




                                                                              O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


IRION, J.




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