Filed 9/13/16 P. v. Deegan 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C078447

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62131996)

         v.

SIDNEY ROSS DEEGAN III,

                   Defendant and Appellant.




         Following his arrest for a parole violation, defendant Sidney Ross Deegan III
appeared in court for arraignment. During the hearing, defendant became verbally
abusive toward the judge. An amended information charged defendant with threatening a
judge and criminal threats. (Pen. Code, §§ 76, subd. (a), 422, subd. (a).)1 A jury
convicted defendant on both counts. Sentenced to nine years in prison, defendant




1   All further statutory references are to the Penal Code unless otherwise designated.

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appeals, contending the court erred in denying his motion for acquittal based on the
insufficiency of the evidence, the court erroneously excluded evidence defendant suffered
from posttraumatic stress disorder (PTSD), and the court abused its discretion in denying
defendant’s Romero motion.2 We shall affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
        In July 2014 defendant was arrested for a parole violation. An amended
information charged defendant with threatening a judge and criminal threats. The
information also alleged defendant had one strike prior, a prior serious felony conviction
for criminal threats, and had served three prior prison terms. (§§ 1170.12, subds. (a)-(d),
667, subds. (a)(1), (b)(1), 667.5, subd. (b).)
        Defendant filed a motion for judgment of acquittal based on insufficient evidence.
(§ 1118.1.) The trial court denied the motion. The following evidence was brought
before the jury.
The Hearing
        Approximately two weeks after his arrest, defendant appeared before the
Honorable Frances Kearney for arraignment. Prior to the hearing, Judge Kearney
reviewed the charges against defendant and the petition for revocation. The petition
stated defendant was on parole for committing corporal injury on a spouse, terrorist
threats, and causing a fire in an inhabited building.
        At the hearing, Judge Kearney advised all the defendants at the hearing of their
rights. When defendant’s case was called, Judge Kearney asked if defendant wanted a
public defender appointed to represent him. Defendant was handcuffed and chained
during the proceeding. After defendant stated he wanted to represent himself, Judge
Kearney told him it was “usually a really bad idea” to represent oneself. She offered to




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

                                                 2
continue the matter for one day to allow defendant to “think about what [he] want[ed] to
do [since he was] looking at some substantial time.”
        Defendant responded that he wanted to resolve the case that day. Judge Kearney
explained that she was not familiar with his case but the parole violation alleged usually
carried a minimum of six months in custody. She continued: “I’m not done talking.
There is no way we are going to be able to resolve the case today, so you might want to
consider an appointment of counsel if you cannot afford [to] hire an attorney. If after you
and the public defender talk you don’t like what you are hearing, then of course you
could always represent yourself at that point. This is a complicated matter with a lot of
allegations about how you violated your parole. I can set it for a contested hearing or
give you a chance to talk to the public defender.”
        Defendant stated he was agreeable to the district attorney’s resolution of the
matter. The court conferred with the prosecution, who confirmed the People were
seeking 180 days in custody. Defendant explained his parole was due to terminate in
November and he “want[ed] to max and get out of here without no papers.” He also
asked the court to grant him a Cruz waiver for one week so he could find someone to care
for his dog.3
        Judge Kearney replied that she would not release defendant. She outlined two
options: accept appointment of the public defender and continue the matter into the next
week so they could discuss his options, or represent himself but have the matter
continued for two days so the prosecutor could confirm the proposed disposition with the
parole department.
        The court and defendant had the following exchange: “The Defendant: What
would it take to max me out right now?




3   People v. Cruz (1988) 44 Cal.3d 1247, 1254, footnote 5 (Cruz).

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          “The Court: I don’t know.
          “The Defendant: Ask them.
          “The Court: I’m going to put the arraignment over to Friday at 8:30.
          “The Defendant: First of all, this is a violation of my rights. Arraignment should
take three days after the arrest upon which my parole officer is supposed to have the
report.
          “The Court: We’re going to take a short break.”
          As the bailiffs approached defendant to escort him out of the courtroom, defendant
said: “Fuck you, mother fucker. Fuck you too, bitch. You don’t know who the fuck this
is. This is manic mother fucking high beams right here. You know your car is going to
blow up.” The court said: “Did we get that on the record? Further charges. No bail.”
          Defendant jumped up from his seat and had to be restrained as he made the threat
and was escorted from the courtroom. Courtroom staff testified defendant was disruptive
throughout the hearing and was “out of . . . control” when he threatened the judge. The
bailiffs considered defendant a safety risk.
          Judge Kearney testified she was “taken aback” and “surprised” by defendant’s
words because no one had ever threatened to blow up her car in her 17 years as a judge.
Although she remembered asking the court reporter if defendant’s statement had been
reported, she could not recall saying, “Further charges. No bail.” The statements did not
make sense to Judge Kearney because she is not responsible for filing charges.
          After finishing the arraignment calendar, Judge Kearney retired to her chambers.
Initially, Judge Kearney did not “think that much” about defendant’s threat because he
was in custody. Although she was aware of defendant’s prior incarceration, she did not
know the extent of his criminal record.
          When Judge Kearney’s bailiff suggested defendant had access to a telephone and
might have friends, she became fearful and concerned that something could happen.



                                               4
Judge Kearney interpreted defendant’s threat to blow up her car as a threat against her
life.
        Judge Kearney left the building later that day and walked alone to her car, which
was parked in a secured parking lot. After she went home, the incident was only in the
back of her mind as a concern. Later she spoke with Detective Addison, who told her
defendant had apologized for his statement to the judge. After their conversation, Judge
Kearney felt “significantly better” because defendant had apologized for his behavior and
it was “obvious” he was having a bad day.
        Judge Kearney asked to be reinterviewed by her bailiff about a month after the
incident. She wanted to make sure that the appropriate parties understood that she felt
defendant was having a bad day when he made the threat. In addition, she wanted to
express that she did not “have strong feelings about how the case was handled, [and] that
[she] was [not] asking for something.”
        Approximately one week prior to trial, Judge Kearney told the prosecutor and
investigator that she had not been fearful when defendant made his threat because he was
in custody and she thought he was angry because she failed to grant his release request.
Judge Kearney believed defendant’s apology and a restraining order would be an
appropriate resolution. Going through with the trial would be worse, because it “had the
potential to make people angry.”
        At trial, the jury heard a recorded conversation between defendant and his mother
in which they discussed the charges against him. Defendant admitted the threat,
explaining: “[T]hey were violating my rights, so I got mad and fuckin, I flew off the
handle.”
        Defendant’s parole officer testified that the recommended punishment for
defendant’s parole violation had been 180 days. After taking his custody credits into
account, defendant would have been released from custody no later than October 10,
2014.

                                             5
       For his defense, defendant requested to present expert testimony on PTSD,
arguing it was relevant to whether he actually formed the specific intent to threaten the
judge. After hearing the proffered evidence outside the jury’s presence, the court
excluded the evidence.
The Aftermath
       The jury convicted defendant on both counts. Defendant waived a jury trial on the
priors and admitted them. The court granted the prosecution’s motion to dismiss the
three prior prison term enhancements in the interest of justice.
       Prior to sentencing, defendant filed a Romero motion, which the court denied. The
court sentenced defendant to nine years in prison: four years, double the middle term, for
criminal threats, plus five years for the prior serious felony conviction. (§ 667, subd. (a).)
Pursuant to section 654, the court stayed defendant’s sentence for threatening a judge.
Defendant filed a timely notice of appeal.
                                       DISCUSSION
                          SUFFICIENCY OF THE EVIDENCE
       Defendant challenges the sufficiency of the evidence to support either conviction.
He contends the trial court erred in denying his motion for acquittal based on insufficient
evidence.
       Section 1118.1 provides, in relevant part, that the trial court, at the close of
evidence and prior to submission of the case to the jury, “shall order the entry of a
judgment of acquittal of one or more of the offenses charged in the accusatory pleading if
the evidence then before the court is insufficient to sustain a conviction of such offense or
offenses on appeal.”
       The trial court must determine, based on the evidence that exists at the time of the
motion, whether the prosecution has presented sufficient evidence to submit the matter to
the jury. In making this determination, the court applies the same standard as we use to
determine whether sufficient evidence supports the conviction on appeal. In effect, we

                                               6
consider whether from the evidence including all reasonable inferences to be drawn, there
is any substantial evidence of the existence of each element of the offense charged. This
court views the evidence in the light most favorable to the prosecution and presumes in
support of the judgment the existence of every fact the trial court could reasonably
deduce from the evidence. (People v. Stevens (2007) 41 Cal.4th 182, 200; People v.
Johnson (1980) 26 Cal.3d 557, 576.) On appeal, we review the court’s denial of a motion
for judgment of acquittal under the independent standard of review. (Stevens, at p. 200.)
Criminal Threats
       To sustain a conviction for criminal threats, the prosecution must establish that
(1) the defendant willfully threatened to commit a crime which would result in death or
great bodily injury to another person; (2) the defendant made the threat with the specific
intent that the statement was to be taken as a threat, even if there was no intent of actually
carrying it out; (3) the threat was on its face and under the circumstances in which it was
made so unequivocal, unconditional, immediate, and specific as to convey to the person
threatened a gravity of purpose and an immediate prospect of execution of the threat;
(4) the threat actually caused the person threatened to be in sustained fear for his or her
own safety; and (5) that the threatened person’s fear was reasonable under the
circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
       The court also instructed the jury that “[s]omeone commits an act willfully or on
purpose. In deciding whether a threat was sufficiently unequivocal, immediate,
unconditional and specific . . . consider those words themselves as well as surrounding
circumstances.
       “Someone who intends that a statement be understood as a threat does not have to
actually intend to carry out the threatened act or intend to have someone else do it. Great
bodily injury means significant or substantial physical injury. It’s an injury that is greater
than a minor or moderate harm. Sustained fear means fear for a period of time that is



                                              7
more than momentar[y], fleeting or transitory. An immediate ability to carry out the
threat is not required.”
       Defendant argues there was no evidence that (1) he willfully threatened to commit
a crime that would result in great bodily injury or death, (2) he had the specific intent that
his statements be taken as threats, and (3) that his threat caused Judge Kearney to be in
sustained fear.
       The prosecution presented evidence that defendant threatened to commit a crime
which would result in great bodily injury or death. However, defendant characterizes his
words as simply “frustration in a fit of pique” and “mere hyperbole untethered to reality
and no basis to find a true threat.”
       In retrospect, defendant may regard his utterances as “mere hyperbole untethered
to reality,” but others, including the victim, disagree. Words that are so unequivocal,
unconditional, immediate, and specific as to convey a gravity of purpose and an
immediate prospect of execution of a threat do not lose their impact because the speaker,
on reflection, thinks better of it. The evidence supports the verdict.
       Defendant stated, in court, before Judge Kearney: “Fuck you, too, bitch. You
don’t know who the fuck this is. This is maniac mother fucking high beams right here.
You know your car is going to blow up.” Judge Kearney testified she interpreted
defendant’s statement as a threat against her life. Defendant made the statement of his
own volition as bailiffs approached to remove him from the courtroom. Courtroom staff
stated defendant was disruptive and out of control during the hearing.
       Evidence before the jury also supported the inference that defendant intended his
statements as a threat against the judge. Defendant admitted he “flew off the handle” and
later apologized for his outburst. Courtroom staff testified defendant jumped from his
seat as he made his statement. Bailiffs restrained defendant and removed him from the
courtroom.



                                              8
       Finally, defendant argues Judge Kearney was not in fear or sustained fear
following the threat. According to defendant, “the judge’s action of walking alone to her
car and driving home—within an hour or two of Deegan’s statements in the courtroom—
and thereafter at home being reassured no threat was intended, inarguably show both that
she did not seriously take his words as a true threat and that they did not cause her
sustained fear.”
       Defendant’s careful parsing of Judge Kearney’s language and his gloss on events
ignores Judge Kearney’s testimony that she indeed did fear that something could happen,
that she felt threatened. Subsequently, during cross-examination, defense counsel asked:
“Was it a threat to blow your car up, the property damage, or how did you assume that it
was . . . a threat against your life as you said a threat against your life, or did you?”
Judge Kearney replied: “The thought of getting in my car and it blowing up, that’s a
threat against my life.” Defense Counsel said: “Okay. So that’s the way you took it at
the time?” Judge Kearney replied: “ ‘Your car is going to blow up,’ that’s how I would
take it, yes.” Contrary to defendant’s assertion, Judge Kearney felt threatened by
defendant’s words, an apprehension heightened when the bailiff reminded her that
defendant, although in custody, had access to a telephone and the ability to communicate
with a potential confederate. Defendant insists that defendant’s words and conduct are
far less egregious than certain other cases in which substantial evidence claims were
rejected. Perhaps, but that is beside the point. The question is whether substantial
evidence supports the jury’s verdict. We answer that question in the affirmative.
Threatening a Judge
       Section 76, subdivision (a) sets forth the elements of the crime of threatening a
judge: “Every person who knowingly and willingly threatens the life of, or threatens
serious bodily harm to, any … judge . . . with the specific intent that the statement be
taken as a threat, and the apparent ability to carry out that threat by any means, is guilty
of a public offense . . . .”

                                               9
       The court provided the following definitions. “A threat may be oral or in writing
and it may be implied by a conduct or combination of statements and conduct when a
person making a threat is an incarcerated prisoner with a stated release date. The ability
to carry out that threat includes the ability to do so in the future.
       “When the person making the threat is an incarcerated prisoner without a stated
release date the ability to carry out the threat also carries the ability [to] do so by the use
of bail, change of plea, or some other reasonable means.
       “Serious bodily injury includes serious physical injury or serious traumatic
condition. Someone who intends that a statement be understood as a threat does not have
to actually intend to carry out the threatened act or threaten to have someone else do so.”
       Defendant reiterates his previous argument by reference and adds that the
prosecution “presented no evidence . . . of any indication Deegan attempted to contact
someone on the outside, that there was anyone on the outside who would or could do
Deegan’s bidding in this regard, or indeed that Deegan took any action to carry out this
so-called threat.”
       However, section 76 does not require that the prosecution prove that defendant
had a confederate ready, willing, and able to carry out his threat. Section 76 requires
evidence that defendant had the apparent ability to carry out the threat because he was
likely to be soon released from custody. The evidence revealed defendant would have
been released from custody no later than October 10, 2014, providing sufficient evidence
of defendant’s ability to carry out his threat.
                                   EVIDENCE OF PTSD
       Defendant sought to introduce evidence he suffered from PTSD at the time he
threatened Judge Kearney. The court held an Evidence Code section 402 hearing but
declined to admit the proffered evidence.




                                               10
Background
       Prior to trial, the prosecution filed a motion in limine to exclude evidence
regarding defendant’s mental health as lacking both foundation and relevance. During in
limine proceedings, defense counsel informed the court he intended to present testimony
from Peter Kalmar (Kalmar), a marriage and family counselor who had evaluated
defendant at the jail. The court reserved ruling on the issue until it could conduct an
Evidence Code section 402 hearing.
       At the hearing Kalmar testified he had both a bachelor’s and a master’s degree in
psychology and counseling and was a licensed marriage family therapist. In addition to
his private practice, Kalmar had provided mental health services to inmates at the county
jail for 11 years. Kalmar screened inmates for mental health symptoms, obtaining
treatment records and verifying inmates’ current medications, providing suicide risk
assessments, and coordinating with classification officers for appropriate housing.
       Kalmar also engaged in brief cognitive therapy sessions to help inmates cope with
being in jail and psychoeducation to help inmates understand various aspects of mental
health treatment and how to treat them. He served approximately 3,000 inmates per year,
which over the years totaled over 30,000 inmates. Kalmar performed diagnostic
impressions, generally not full assessments and diagnostic work; those were performed
by psychologists at the jail. Nor did he prescribe or manage inmates’ medications; that
task was performed by the jail psychiatrist.
       Kalmar met defendant through his work at the jail. He kept contemporaneous
records of their sessions, which consisted of “SOAPS,” or subjective observations,
objective observations, assessment, and plan for follow-through. Kalmar was familiar
with PTSD, which was one of the diagnostic impressions he had of defendant. They
discussed the issue in counseling sessions. Defense counsel offered Kalmar as an expert
on PTSD so he could testify about the disorder, his assessment of defendant, and how a
person suffering from the condition acts and reacts.

                                               11
       The prosecution requested further voir dire. In addition to his master’s degree in
psychology, Kalmar had also completed 36 units of continuing education for every two-
year renewal of his license. He had a “fair amount” of training in PTSD. Kalmar had not
completed an assessment regarding defendant’s mental state prior to the incident with
Judge Kearney. He had never previously been called to testify or been qualified as an
expert on PTSD.
       Kalmar spoke with defendant the day after the incident. They discussed PTSD
and Kalmar noted that defendant had made threats in court. He performed a mental status
exam to assess whether defendant needed a follow-up referral for treatment. However,
the purpose of the exam was not to ascertain defendant’s mental state at the time of the
incident. Kalmar’s assessment was that defendant suffered from PTSD, anxiety, anger,
and poor impulse control.
       According to Kalmar, PTSD could have been a factor in defendant’s behavior in
court, but he “didn’t really assess what happened in court or go into that.” Kalmar
testified defendant’s behavior could have been related to his PTSD because it fit the
pattern of difficulty in controlling emotion and impulse. However, Kalmar confirmed his
opinion simply explained the reason for defendant’s outburst but did not explain what
defendant was thinking or whether he was serious or joking.
       Defense counsel continued the direct examination of Kalmar. Kalmar stated he
could explain what PTSD is and how someone develops the condition. He testified his
assessment of defendant had included a discussion of the circumstances that caused
defendant to have PTSD.
       The court questioned Kalmar. Kalmar explained that his assessments involved
creating diagnostic impressions, reflecting the fluidity of his subject’s mental state and
the fact that some conditions are only temporary. Kalmar noted defendant’s history and
relied on the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition



                                             12
(DSM-IV) to help him determine the number of symptoms defendant had that were
consistent with PTSD.
         Kalmar first determined defendant suffered from PTSD in 2006 and referred him
to a psychiatrist. However, defendant’s medical record did not contain a psychiatric
evaluation, so Kalmar assumed defendant had been released prior to seeing the
psychiatrist. Defendant’s medical records stated that on July 29, 2014, Dr. Baker, the jail
psychiatrist, noted defendant suffered from drug abuse and personality issues.4 Kalmar
testified that he and Dr. Baker did not always agree on the diagnosis of a patient.
Defense counsel offered Kalmar’s testimony to inform the jury that defendant had been
diagnosed with PTSD and to explain what the condition is and the psychological impact
that certain stresses have on an individual suffering from the condition.
         The court heard argument from the prosecution and defense. The prosecution
argued there was no causal connection between defendant’s condition and his state of
mind when he threatened the judge. Defense counsel argued that two experts had
diagnosed defendant with PTSD. However, the trial court noted only one expert was
present, and he would not be able to testify as to Dr. Baker’s diagnosis. Defense counsel
replied Kalmar would be able to testify that he relied on Dr. Baker’s diagnosis and that
the jury should know that defendant suffered from PTSD and that certain stressors could
cause him to lash out.
         The court stated it understood defendant’s argument but still needed to be
convinced Kalmar was an expert on the issue. Defense counsel argued Kalmar diagnosed
defendant with PTSD and Dr. Baker confirmed the diagnosis. Defense counsel noted
defendant’s homelessness was one of the stressors that caused him to lash out. The
PTSD testimony would help explain why defendant lashed out at the judge, aiding the




4   The incident took place on July 23, 2014.

                                                13
jury in evaluating “the person . . . to make the assessment as to whether or not [his threat]
was intentional.” Defense counsel concluded that Kalmar had the education, professional
license, and experience to explain the issues to the jury.
       The prosecution reiterated that Kalmar lacked the qualifications or expertise to
form an opinion on how PTSD related to defendant’s intent when he threatened the
judge, the issue central to the case. In addition, Kalmar’s proposed testimony was
intended to evoke sympathy from the jury, but there was no connection between PTSD
and defendant’s intent. In response, defense counsel argued that Kalmar’s testimony was
not being offered to testify about defendant’s intent, but because he suffered from PTSD,
the jury should be informed to enable them to decide whether defendant formed the
requisite intent.
       The court tentatively ruled that it was inclined to exclude the testimony because
although Kalmar was qualified to diagnose defendant with PTSD, he was not qualified to
testify about how the diagnosis explained defendant’s actions or intent at the time of the
incident. Defense counsel filed a motion for reconsideration, arguing case law permitted
expert testimony that a defendant suffers from a particular mental disease or disorder. In
response, the prosecution argued defendant failed to show how the PTSD evidence was
relevant to the issue of defendant’s intent: “The only question is did he intend to make
the threat, not why he intended to make the threat, which is the PTSD . . . .”
       Defense counsel explained the testimony would explain the effect PTSD had on
defendant’s ability to control his actions and whether he “flew off the handle without
thinking.” In addition, Kalmar would not be asked to form an opinion as to whether
defendant had the specific intent at the time.
       The court again expressed reservations about Kalmar’s qualifications but ruled the
evidence would be excluded because it would lead to confusion and uncertainty among
the jury. Kalmar did not “treat anybody” but provided counseling and performed intake



                                             14
assessments. According to the court, Kalmar “might be able to do an assessment and say
so-and-so has PTSD, but as far as taking it to the next step, that’s why I’m at foul here.”
       In response, defense counsel stated he expected Kalmar to testify about his
educational background and explain the process of performing assessments before
referring the patient to a psychiatrist who then would conduct a diagnostic evaluation.
Kalmar would also testify that he counseled patients so they knew how to cope with their
conditions to prevent outbursts. Defense counsel explained Kalmar “has the
qualifications to make that diagnosis. And the fact that he diagnosed [defendant] with
PTSD as well as [the] psychiatrist that backed his diagnosis up [shows he] knows what
he’s talking about and he can describe to the jury what that condition is and how people
react under certain stressors.”
       The court affirmed its tentative ruling and excluded Kalmar’s testimony.
Discussion
       A person with special knowledge, skill, experience, training, or education in a
particular field may qualify as an expert witness at trial. (Evid. Code, § 720.) However,
an expert may offer his or her opinion only if it is related to a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier of fact.
(Evid. Code, § 801, subd. (a).)
       The trial court possesses wide discretion to admit or exclude expert testimony.
(People v. Curl (2009) 46 Cal.4th 339, 359.) We will not reverse the trial court’s ruling
on expert testimony unless we find a manifest abuse of discretion. (People v. Lee (2011)
51 Cal.4th 620, 643.)
       In addition, a trial court possesses broad discretion to exclude relevant evidence if
its probative value is substantially outweighed by the probability that its admission will
necessitate undue consumption of time or create a substantial danger of undue prejudice,
or confusing the issues, or of misleading the jury. (Evid. Code, § 352.)



                                              15
       Defendant argues the court abused its discretion in finding that Kalmar was not
qualified to render an opinion on the connection between PTSD and the issues in this
case. “There is nothing in this record to support a finding that Kalmar was unqualified to
explain how PTSD in a person suffering chronic stress, burdened with additional
situational stress, could affect the elements of intent and willfulness at issue in the
charged offenses.” Defendant also challenges the court’s finding that Kalmar’s testimony
would confuse the jury.
       The trial court held a thorough hearing on Kalmar’s background and credentials,
heard extensive argument, and allowed both parties to present their viewpoints. Although
the court expressed reservations about Kalmar’s qualifications, it did not, as defendant
asserts, exclude the evidence because Kalmar lacked a medical degree. The court found
Kalmar qualified to diagnose defendant with PTSD but was not satisfied that Kalmar was
qualified to explain how the condition affected defendant’s actions and intent when he
threatened Judge Kearney.
       We find no abuse of discretion in the court’s determination. Kalmar never
evaluated defendant to determine his mental state following the incident or to provide an
assessment of defendant’s behavior before Judge Kearney. Nor did Kalmar offer a
specific opinion as to how defendant’s PTSD might have been a factor in the incident.
On appeal, defendant contends Kalmar could have testified “that angry outbursts are a
manifestation of the hyperarousal state that is a hallmark of PTSD.” However, defense
counsel did not offer Kalmar’s testimony for this purpose in the trial court. Instead,
defense counsel offered Kalmar’s testimony as to defendant’s PTSD diagnosis but left it
up to the jury to determine how it impacted his behavior during the incident. The court
properly excluded Kalmar’s testimony.
                                    ROMERO MOTION
       Defendant filed a motion pursuant to Romero requesting that the court dismiss the
finding of his prior strike because of the minor nature of the current offense, in light of

                                              16
the fact that he suffers from PTSD, the length of his sentence, and other miscellaneous
factors. Defendant contends the court abused its discretion in denying the motion.
Background
       The prosecution opposed defendant’s Romero motion, arguing defendant was on
parole at the time of the current offense. In addition, the behavior underlying the strike
prior conviction included burning a home after beating and threatening to kill the
resident, and defendant continued to commit criminal acts while on parole.
       The trial court denied the motion, stating: “[T]he issue which I have to address is
whether or not [defendant’s] matter comes within the meaning or outside the meaning of
the Three Strikes Law. I would note in ruling on this matter that [defendant’s] matter that
he was on parole for at the time of this offense was similar in nature to the offense he
stands convicted of today, that being a 420. His prior case also involved an arson charge.
I would also note that [defendant] has five prior felony convictions at the time of his
arraignment. He was pending nine parole violations having absconded from release. I
note further that he was released on probation on the prior 420 just months before this
offense and was a parolee at large.
       “I have been unable to find anything in the pleadings or in the review of the
records that would suggest that [defendant’s] background, character, or future prospects
[are] favorable to the Court granting a Romero Motion, that is, striking a prior strike or
conviction. His current behavior is so close in time to his release on parole. There’s just
nothing here for me to hang a hat on, so to speak.”
Discussion
       The “three strikes” initiative was intended to restrict a trial court’s discretion in
sentencing repeat offenders. (Romero, supra, 13 Cal.4th at p. 528.) The law does not
offer a discretionary sentencing choice but establishes a sentencing requirement to be
applied in every case where the defendant has at least one qualifying strike. However, if
the sentencing court concludes an exception should be made because, for reasons that can

                                              17
withstand scrutiny, a defendant should be treated as though he or she actually fell outside
the three strikes scheme, the court may strike a qualifying strike. (People v. Carmony
(2004) 33 Cal.4th 367, 377 (Carmony).)
        We review the trial court’s denial of a defendant’s Romero motion for an abuse of
discretion. We find an abuse of discretion only if the court’s decision is so irrational or
arbitrary that no reasonable person could agree with it. (Carmony, supra, 33 Cal.4th at
pp. 376-377.) In making this assessment, “preponderant weight must be accorded to
factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s
present felonies and prior serious and/or violent felony convictions, and the particulars of
his background, character and prospects.” (People v. Williams (1998) 17 Cal.4th 148,
161.)
        Reversal of the trial court’s denial of a Romero motion is justified when the trial
court was unaware of its discretion to strike a prior, or refused to do so at least in part for
impermissible reasons. However, if the trial court balanced the relevant facts and
reached an impartial decision, we affirm the trial court’s ruling even if we might have
ruled differently. (Carmony, supra, 33 Cal.4th at p. 378.)
        Defendant contends there are numerous reasons the court’s denial of his motion
constitutes an abuse of discretion. He points out he apologized for his statements to
Judge Kearney shortly after the incident. In addition, he argues “the fact that the
evidence of guilt is so thin is a powerful reason to strike the prior” and argues his
undiagnosed PTSD provides some explanation for his prior criminal behavior.
        We disagree. The record supports the court’s reasons for denying the motion.
Defendant’s criminal record began in 1997, consisting of several misdemeanor and
felony convictions. His prior strike conviction was for criminal threats, the same
behavior charged in the current case. Defendant’s prior performance on probation and
parole was unsatisfactory, and he was on parole at the time of the current offense.
According to defendant’s parole officer, his prior performance on parole was “dismal,”

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including three violations for methamphetamine use, failure to participate in a batterer’s
treatment program, failure to report to the parole agent, failure to follow instructions, and
absconding. In addition, defendant admitted using methamphetamine “as much as
possible.” These facts support the trial court’s finding that there was nothing in
defendant’s background, character, or future prospects favorable to granting his Romero
motion. We find no abuse of discretion.
                                      DISPOSITION
       The judgment is affirmed.



                                                            RAYE               , P. J.


We concur:



         BLEASE             , J.



         NICHOLSON          , J.




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