Filed 1/23/14 P. v. Maxon CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039199
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1081500)

         v.

KENT LEE MAXON,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant Kent Lee Maxon pleaded guilty to two counts of robbery. (Pen. Code,
§§ 211, 212.5, subd. (b).1) He admitted allegations that he personally used a deadly
weapon (§ 12022, subd. (b)(1)) in the commission of both offenses and had suffered a
prior conviction for robbery, which qualified as a serious felony and a strike (§§ 667,
subds. (a), (b)-(i), 1170.12). After the trial court denied defendant’s motion to dismiss
the strike allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero), it sentenced defendant to a 12-year prison term.
         On appeal, defendant contends the trial court abused its discretion by denying his
Romero motion. For the reasons stated below, we will affirm the judgment.


         1
             All further statutory references are to the Penal Code unless otherwise noted.
                                  II.   BACKGROUND
       A.     The Current Offenses2
       On June 19, 2010, defendant went to Bank of the West in San Jose. He entered
through the front doors wearing bicycling gear. He approached Katherine Tran, a bank
teller, and handed her a note, which stated, “ ‘This is a Robbery . . . here’s my gun – look
up . . . money from both tills out and on counter . . . no ink bombs – I’ll just throw them
at you.’ ” As Tran began to remove money from the top drawer, defendant told her
“ ‘Bottom drawer.’ ” Defendant showed Tran a gun inside a fanny pack. Tran, who was
“shocked and nervous” but did not “fear for her life,” believed the gun was a
semiautomatic. She gave defendant money, which he placed in his fanny pack.
Defendant then left the bank. The bank later determined that the till was short $2,650.
       On June 22, 2010, defendant went to Comerica Bank in Saratoga. He rode there
on a mountain bike. He approached the teller window where Maly Nuon was working,
and he gave Nuon a note, which read, “ ‘ This is a robbery, give me all your money.’ ”
The note may also have mentioned a gun. Nuon began putting money into an envelope,
which defendant took and left. Nuon believed defendant had a gun in his fanny pack.
She was “extremely scared.”
       Defendant was identified from fingerprints on the demand note that he left during
the Bank of the West robbery. On July 1, 2010, defendant was arrested at his residence
in Santa Cruz. Defendant admitted he had committed the two robberies, saying “that the
only reason he wanted to come clean was so the Officer could tell the women (tellers)
that it was not a real gun and that it was a toy gun. It was important to him that they
knew he would never have hurt them.” Defendant cried when talking about the tellers
and wrote them apology letters.


       2
        As defendant was convicted by plea, the facts of the current offense are taken
from the probation report.

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       Defendant described how he had committed the Comerica Bank robbery. He
drove to Saratoga with his bicycle in the trunk and parked some distance from the bank.
He rode to the bank and rode back to his car afterwards, then put his bicycle back into the
trunk and drove away. He disposed of the money in the ocean because the teller had put
a dye pack in the envelope.
       Defendant admitted he had a pellet gun when he committed the Bank of the West
robbery, but he claimed he did not have the gun during the Comerica Bank robbery.
       Defendant explained his motivation for committing the robberies. He needed
money for house payments and household bills. He confessed to committing two more
bank robberies in Santa Cruz. At the time of sentencing, defendant was facing two
robbery charges in Santa Cruz County.
       B.       The Prior Offense3
       In 1993, defendant committed a bank robbery with his brother. He was 27 years
old at the time. His brother had significant gambling debts and was suicidal. “To help
his brother and to keep his brother from committing suicide, they robbed Bank of
America in Santa Cruz with a sawed off shot gun,” which had no ammunition. They took
$38,000 from the bank and were immediately apprehended, so the money was returned to
the bank.
       Defendant was convicted of possessing a dangerous weapon (former § 12020) and
robbery (§ 211), with an allegation that he had been armed with a firearm (§ 12022,
subd. (a)(1).) He served one year in county jail and then successfully completed
probation.
       C.       Plea Proceedings
       On March 15, 2011, defendant pleaded guilty to both robbery charges. He also
admitted both allegations of deadly weapon use (§ 12022, subd. (b)(1)), as well as the


       3
           The facts of the prior offense are taken from the probation report.

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allegations that he had suffered a prior robbery conviction that qualified as a serious
felony and a strike (§§ 667, subds. (a), (b)-(i), 1170.12).
       During the plea proceedings, the parties agreed that defendant faced a maximum
prison term of 19 years, and, if a Romero motion was granted, a minimum prison term of
eight years.
       D.      Probation Report
       Defendant was 45 years old in May of 2011 when he was interviewed by the
probation officer.
       Defendant began using cocaine in 1983, when he was a senior in high school. His
drug use “got worse in 2010, after his wife left him.” At that point, he used cocaine five
to six times per day, spending about $150 per week on the drug. Defendant also began
using marijuana in 1983, and his use of that drug became more frequent after his wife left
him: he began smoking it on a daily basis. Likewise, his consumption of alcohol
increased to the point where he was “tipsy on a daily basis.” Defendant had not
previously participated in substance abuse programs, but he was doing so while
incarcerated in jail.
       Defendant had separated from his wife in February of 2010, and she was living in
the state of Washington with their two young children. He had started a handyman
business in 1994, but his income had been significantly reduced due to the economy. He
had attended three years of college.
       Defendant expressed remorse during his probation interview. He indicated that
after he served his sentence, he would live with his father in Castro Valley, work as a
painter or handyman, and go back to school to learn about the solar industry.
       E.      The Romero Motion and Opposition
       In his Romero motion, defendant highlighted the following facts. His only prior
conviction was the prior robbery, which he had committed in 1992. He “committed no
other law violations” until 18 years later, when he committed the present offenses. In the

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interim, he had married, become a father, and started a business. However, after his
business had failed due to the economy and his wife and children had left him, his
substance abuse had “spiral[ed] out of control.”
       Concerning the current offenses, defendant emphasized that he immediately
confessed and that – at least in one of the robberies – he had not been armed with an
“actual weapon.” In addition, his crimes had been “committed quietly and calmly” and
thus “were not violent.”
       The prosecution filed an opposition to defendant’s Romero motion, arguing that
striking the prior conviction would be an abuse of discretion. The prosecution argued
that “[r]obbery is a serious and violent felony” and pointed out that the two tellers had
been fearful during the robberies. The prosecution argued that even if, as defendant
claimed, he was not actually armed with a weapon during both robberies, he did “threaten
the use of violence” in both crimes. The prosecution further noted that the two robberies
occurred close together in time to one another, and close in time to two other robberies
that defendant committed.
       Concerning the prior offense, the prosecution noted that it had occurred when
defendant was 27 years old and thus defendant did not have “the excuse of youthful poor
decision making.”
       Regarding defendant’s background, character, and prospects, the prosecution
claimed that defendant had not been “a law-abiding, gainfully employed citizen” during
the 18 years between his offenses, in that he had borrowed a large sum of money from his
wife’s family without returning it. Finally, the prosecution noted that although defendant
had admitted his guilt in the present case, he also had been caught quickly and had not
turned himself in.




                                             5
       F.     The Romero Hearing/Sentencing
       The trial court heard defendant’s Romero motion on August 8, 2011. At the
beginning of the hearing, defendant addressed the court to explain what happened with
the loan from his in-laws. The trial court then made its findings.
       The trial court indicated it had “spent a lot of time” on the case, trying to “see if
there is something in the prospects that would tell me this could never – financial
difficulty would never trigger a similar response.” The court “couldn’t find that in this
case.” Instead, it found a defendant who had been “taking the easy way out” whenever
he “became in financial straits” by robbing banks and “scar[ing] people half to death.”
The court believed defendant would likely “resort to illegal activity in order to gain
money again” in the future. The trial court found that defendant fit the profile of a typical
bank robber, in that he had no other criminal history but had repeatedly robbed banks.
The court did not see defendant “as much different” than other bank robbers.
       The trial court indicated that because defendant’s prospects were not good, “there
is no reason to grant the Romero.” The court further noted, “In fact, I think it would be
[an] abuse of discretion to do so. But even if it wouldn’t, he loses on all three prongs of
the traditional Romero test.”
       The trial court then addressed defendant’s addiction, noting that it “worsens his
prospects” because “people who have an addiction are more likely to re-offend.”
       The trial court also addressed the effect of defendant’s possible future crimes on
the victims. It noted that if he went on “another string of bank robberies,” it could cause
victims to suffer heart attacks and have “nightmares of reliving these situations.”
       Regarding the overall sentence, the trial court noted that it was not sentencing
defendant for the Santa Cruz crimes and that it was “not sure what [it] would have done”
with those charges. The court stated that running all of the sentences consecutively might
be “too much of a penalty.” The court noted that the Santa Cruz court might see “their



                                              6
cases differently and grant[] a Romero in those cases,” since there were “some positive
things about the defendant in his prospects prong.”
       Ultimately, the trial court determined that there was not “enough to overcome the
serious and violent nature of the prior[] and these current cases and all the negatives,” and
it denied defendant’s Romero motion. It imposed a 12-year prison term, comprised as
follows: the two-year low term for count 1, doubled to four years because of the strike; a
consecutive one-year term for the deadly weapon use allegation associated with count 1;
a consecutive two-year term for count 2, calculated at one-third of the midterm; and a
consecutive five-year term for the prior serious felony conviction (§ 667, subd. (a)). The
court stayed the punishment for the deadly weapon use allegation associated with count 2
pursuant to section 1385.

                                    III.   DISCUSSION
       Defendant contends the trial court abused its discretion by denying his Romero
motion. As we shall explain, we find no error.
       A.     Applicable Law
       In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the California Supreme
Court set forth the basic principles applicable to a trial court’s decision to strike a prior
conviction. “ ‘In Romero, we held that a trial court may strike or vacate an allegation or
finding under the Three Strikes law that a defendant has previously been convicted of a
serious and/or violent felony, on its own motion, “in furtherance of justice” pursuant to
. . . section 1385(a).’ [Citation.] We further held that ‘[a] court’s discretionary decision
to dismiss or to strike a sentencing allegation under section 1385 is’ reviewable for abuse
of discretion. [Citation.]” (Carmony, supra, 33 Cal.4th at p. 373.)
       “In reviewing for abuse of discretion, 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



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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.” (Carmony, supra, 33 Cal.4th at pp. 376–377.)
       “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do
other sentencing laws, but establishes a sentencing requirement to be applied in every
case where the defendant has at least one qualifying strike, unless the sentencing court
“conclud[es] that an exception to the scheme should be made because, for articulable
reasons which can withstand scrutiny for abuse, this defendant should be treated as
though he actually fell outside the Three Strikes scheme.” ’ [Citation.]” (Carmony,
supra, 33 Cal.4th at p. 377.) “ ‘[I]n ruling whether to strike or vacate a prior serious
and/or violent felony conviction allegation or finding under the Three Strikes law, on its
own motion, “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 felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)
       B.     Contentions
       Defendant contends that the trial court made four errors in analyzing his Romero
motion. First, he claims the trial court “exaggerated the gravity of the current crime[s],”
by failing to acknowledge that they involved a “considerable lack of planning.” Second,

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he claims the trial court “mischaracterized the current and past strike offense as
‘violent’ ” since none of the crimes involved any “ ‘actual violence.’ ” Third, he claims
the trial court wrongly observed that “ ‘it would be an abuse of discretion’ ” to grant
Romero relief. Finally, he contends the trial court failed to consider several favorable
factors relating to his background, character, and prospects, as well as the actual sentence
that would be imposed if the Romero motion was granted.
       The Attorney General contends the trial court “carefully considered” all pertinent
factors and did not abuse its discretion in denying the Romero motion.
       C.     Analysis
       Taking defendant’s contentions in turn, we first disagree that his current offenses
were not as serious as the trial court found. According to defendant, the robberies were
“unsophisticated and unplanned.” The record does not support this claim. Defendant
obviously planned both robberies: he had prepared notes for the tellers, and he had
traveled to San Jose from Santa Cruz with his bicycle in his car, then rode the bicycle to
and from the banks to facilitate his escapes and avoid being caught. He was also a
sophisticated bank robber, as he knew that the teller could place “ ‘ink bombs’ ” in the
envelope with the money. The fact that he used a gun (even if it was, as he claimed, only
a pellet gun) during at least one of the robberies further supported a finding that the
current offenses were serious, such that defendant did not fall outside the spirit of the
Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 377.)
       Defendant also claims that his current offenses were less serious because they
were committed 18 years after the prior offense and they were “situational,” in that they
occurred “when his life had spiraled out of control.” While somewhat remote, the fact
that defendant’s prior conviction was for the same crime as in the present case militates
against treating defendant as if the prior had not occurred. (See Carmony, supra, 33
Cal.4th at p. 377.) Likewise, although the current offenses may have been spurred by
defendant’s circumstances, the trial court aptly recognized that defendant appears to

                                              9
resort to bank robberies whenever he is “in financial straits” and that nothing in
defendant’s history indicates he would not do so if he found himself in a similar situation
in the future.
       Second, we disagree that the trial court mischaracterized defendant’s current and
prior robbery offenses as violent. Not only is robbery a “ ‘violent felony’ ” pursuant to
section 667.5, subdivision (c)(9), but defendant’s characterization of his crimes as not
involving any “acts of violence” is misleading. Defendant was armed with a firearm in
the prior robbery and the Bank of the West robbery, and he made reference to a gun in
the Comerica Bank robbery. His actions at least implied a threat to use a firearm, and
while not actually leading to violence, cannot be characterized as nonviolent in any way.
(Cf. People v. Garcia (1999) 20 Cal.4th 490, 503 [defendant’s five prior burglaries were
serious felonies but did not “include any actual violence”].)
       Third, we disagree that the trial court erroneously found that it would have been an
abuse of discretion to grant Romero relief in this case. Although the trial court did make
that remark, it also noted that there were “some positive things” such that the Santa Cruz
court might see things differently and grant a Romero motion in defendant’s other case.
Contrary to defendant’s claim, this isolated comment does not demonstrate that the trial
court believed it “did not have an option but to deny the requested relief.” The record
demonstrates that the trial court considered the relevant factors, then exercised its
discretion in denying defendant’s motion.
       Fourth, we disagree that the trial court erred by failing to consider certain factors
concerning defendant’s background and character. According to defendant, the trial
court should have considered: (1) the fact that defendant had no “early criminal history;”
(2) the fact that defendant was seeking treatment for his controlled substance addictions;
(3) the fact that a non-Three Strikes sentence would still be significant – according to
defendant, he still would have received a minimum of seven years; and (4) the fact that
his present offenses were all committed closely together during a difficult time in his life.

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       The trial court is presumed to have considered all of the relevant factors relating to
a Romero motion in the absence of an affirmative record to the contrary. (People v.
Kelley (1997) 52 Cal.App.4th 568, 582; see also People v. Myers (1999) 69 Cal.App.4th
305, 310 [“the fact that the court focused its explanatory comments on the violence and
potential violence of appellant’s crimes does not mean that it considered only that
factor”].) Moreover, contrary to defendant’s claim, the record indicates that the trial
court did consider the length of the term defendant would have received without the
strike and the fact that the present offenses were all committed during a short time period.
During the plea proceedings, the trial court specifically asked what defendant’s sentence
would be “if the Romero was granted,” and during the Romero hearing, the trial court
referred to defendant’s current offenses as having occurred during a “spree.”
       Even if the trial court should have expressly addressed the other two factors
defendant identifies – his lack of any early criminal history and his recent efforts to
control his substance abuse, neither factor weighed in favor of Romero relief. Although
defendant points out that “the lack of a juvenile record” is “a factor tending to show
suitability for parole” (see In re Bettencourt (2007) 156 Cal.App.4th 780, 803), he does
not identify any authority for the proposition that such a factor warrants granting Romero
relief. Here, because defendant’s adult record consists of multiple bank robberies, the
trial court reasonably found that none of defendant’s prior and present offenses were the
result of youthful indiscretion and thus that he did not fall outside the spirit of the Three
Strikes law. (See Carmony, supra, 33 Cal.4th at p. 377.) Likewise, although the record
indicates that defendant was seeking treatment for his substance abuse issues, the trial
court was not required to consider this fact favorably in determining whether to grant
Romero relief. Nothing in the record indicates that defendant’s criminality was directly
related to his substance abuse, and it is significant that until his current arrest, defendant
had done “little to address his substance abuse problems.” (Carmony, supra, 33 Cal.4th
at p. 378.)

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       In sum, we find no basis for concluding that the trial court failed to consider all of
the relevant factors in deciding whether to grant Romero relief or that the trial court
abused its discretion by denying defendant’s Romero motion.

                                   IV.   DISPOSITION
       The judgment is affirmed.




                                    ___________________________________________
                                    BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




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