Filed 12/20/13 P. v. Miller CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H037246
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1081125)

         v.

TODD RUSSELL MILLER,

         Defendant and Appellant.


         Defendant Todd Russell Miller pleaded no contest to second degree robbery (Pen.
Code, §§ 211, 212.5, subd. (c))1 and admitted allegations of two serious felony strike
convictions (§ 1170.12, subd. (c)(1)) and service of two prior prison terms (§ 667.5, subd.
(b)). Defendant’s sole contention on appeal is that the trial court abused its discretion in
denying his Romero motion.2 We reject this contention and affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         The Offense
         Since defendant pleaded no contest to the offense, the underlying facts are taken
from a probation officer’s report, which in turn was based on a report prepared by the San
Jose Police Department. On June 29, 2010, defendant entered a Bank of America located
on Snell Avenue and gave the teller a demand note. The teller handed him the money,
and defendant fled on foot. After his arrest, defendant told the investigating officers that

         1
             Further unspecified statutory references are to the Penal Code.
         2
             People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
he was “hanging up [his] cleats” and that “this [robbery] was his retirement.” Defendant
said that prior to the robbery, he told himself that he would “be locked up for life. Why
burden society anymore.” When asked why he wished to return to prison, defendant
responded that “[n]othing out here is worth living for.”
       Sentencing and the Initial Romero Motion
       On July 1, 2010, the district attorney filed a felony complaint charging defendant
with one count of second degree burglary (§§ 211, 212.5, subd. (c)), with allegations that
he had served two prior prison terms (§ 667.5, subd. (b)), had been convicted of two prior
serious felonies (§ 667, subd. (a)) and had suffered two prior strike convictions (§
1170.12, subd. (c)(1)).3
       On November 18, 2010, defendant entered a plea of no contest to the charge of
second degree robbery and admitted the two serious felony strike convictions and the two
prior prison terms. He filed a Romero motion on May 27, 2011, asking that the trial court
exercise its discretion and dismiss one of more of his prior strikes. The Romero motion
discussed defendant’s social background, as well as his “biggest challenge,” his
substance abuse. Defendant also pointed out that he might have an untreated mental
health problem. He further argued that although his current offense was defined as a
“violent crime,” it did not include any acts of physical violence, and that the robbery was
a “cry for help,” as he was “severely depressed, homeless, and coping [by] using alcohol”
at the time. The People opposed the Romero motion and argued that it was clear from



       3
          Both of defendant’s prior strikes took place within a week of each other, and
were factually similar. The first offense took place on April 8, 1982. That day,
defendant entered a Security Pacific Nations Bank location in Los Gatos and gave the
teller a demand note. Defendant committed his second strike on April 12, 1982, when he
entered a Pacific County Bank location in Santa Cruz and presented the teller with a
demand note for money.


                                             2
defendant’s prior convictions and criminal history that he was unable to live a sober,
stable, or productive life.
        During the sentencing hearing on July 28, 2011, the trial court considered and
reviewed all of the documents filed by defendant and the People on the Romero motion.
The court then declined to dismiss either of defendant’s two strike priors. The court
stated that it believed defendant was a “public safety problem,” and had, over the years,
left a “trail of people [victims] who won’t ever be the same.” The court subsequently
sentenced defendant to a term of 25 years to life for the robbery conviction, consecutive
to a 10-year enhancement for his prior serious felony convictions under section 667,
subdivision (a), for a total term of 35 years to life.
        First Request to Recall the Sentence
        Defendant’s appellate counsel filed a request in the trial court on November 21,
2011, asking it to exercise its authority to recall defendant’s sentence pursuant to section
1170, subdivision (d). In the letter, defendant’s appellate counsel argued that as set forth
in People v. Garcia (1999) 20 Cal.4th 490 (Garcia), dismissing one of defendant’s prior
strikes would result in a sentence that is “not lenient” and can “properly give rise to a
conclusion that the defendant may be deemed outside the [Three Strikes] scheme’s spirit
at least ‘in part. . . .’ ”
        The trial court recalled defendant’s sentence and conducted a resentencing hearing
on December 15, 2011. During the hearing, the People informed the court that defendant
had been served with an outstanding warrant on a separate case. The People explained
that “[defendant] has been charged [with] conspiracy for credit card fraud, counterfeit
credit card fraud where his trust fund at the Santa Clara County jail was used to deposit
counterfeit credit card money into, and then he would receive visitors and he would allow
some of those funds to be handed out to the co-participants who would come to county



                                               3
jail to visit him. He would release some of his trust funds in Santa Clara County check
[sic]. That’s what the accusations are.”
        After hearing arguments from both sides, the trial court declined to dismiss either
of defendant’s prior strikes and sentenced defendant to the term of 35 years to life. The
court reasoned that it had recalled the sentence because it was moved by the letter
submitted by defendant’s appellate counsel and because it had believed that there was a
“cruel-and-unusual-punishment argument” that had not been addressed. The trial court
then stated: “[B]y the same token, it is very clear to the Court that the fact that a judge
found probable cause to allow a complaint to be filed in a case that is using the county
jail facilities to be as a kind of a money laundering machine [sic] for the defendant’s
alleged enterprises is not a favorable factor for this Court to consider. [¶] So, therefore,
just the mere allegation of it is enough to taint, as far as this Court’s concerned, any
decision to recall . . . .”
        Second Request to Recall the Sentence
        On March 13, 2012, defendant’s appellate counsel sent a second letter to the trial
court with the “unusual request that the court recall the sentence a second time.” The
letter stated that defendant’s money laundering charges had been dismissed due to
insufficient evidence. The trial court recalled defendant’s sentence a second time on
March 27, 2012.
        During the resentencing hearing in June 2012, the People informed the court that
the money laundering charges had been dismissed in the interest of justice, not because of
insufficient evidence. In response, defendant’s counsel argued that the record “that was
in place on the date of dismissal is what should stand,” and that the court should accept
the fact that the charges against defendant were dismissed due to insufficient evidence.
The People then urged the court to consider the resentencing issue in light of defendant’s
original circumstances and to disregard the dismissed charge.

                                              4
       After considering these arguments, the court announced its intention to sentence
defendant to same term of 35 years to life. The court reasoned that in its review of the
documents associated with the case, it had initially believed that there was a cruel and
unusual punishment argument that had not been addressed. However, upon further
consideration, the court concluded that the situation presented was not one in which
“cruel and unusual punishment can come to the forefront.” In its decision, the court cited
to defendant’s criminal history and reasoned that defendant had already received
opportunities from other judges and the district attorney to work on his substance abuse.
The court stated that it was “content at this point having seen the record of the defendant
to say that cruel and unusual punishment does not apply.”
       With respect to the dismissed money laundering charges, the court stated that it
had reviewed the case file and that “even though [the charges] were minor in terms of the
way it was resolved as to most defendants, some people did go to prison off of it.”
Additionally, the court concluded that the crime was the type that “takes a great deal of
sophistication. And, even though [defendant] was dismissed out of [the case] for
whatever reason, the Court still factors that in.”
                                        DISCUSSION
       Defendant argues that the trial court abused its discretion by denying his Romero
motion. We disagree with defendant’s contentions and affirm the judgment.
        A.    Romero and Section 1385
       Romero 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[, subdivision] (a).” (People v. Williams (1998) 17 Cal.4th 148, 158.) When a trial
court decides whether to dismiss a prior strike, it “must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or violent felony

                                              5
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the [spirit of the three strikes law] scheme[] . . . 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.” (Id. at p. 161.)
        The sentencing court can give “ ‘no weight whatsoever . . . to factors extrinsic to
the [Three Strikes] scheme.’ [Citation.] On the other hand, the court must accord
‘preponderant weight . . . to factors instrinsic 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, are prospects.’ ” (Garcia,
supra, 20 Cal.4th at pp. 498-499, quoting People v. Williams, supra, 17 Cal.4th at p.
161.)
        We review the trial court’s denial of defendant’s Romero motion for abuse of
discretion. (Romero, supra, 13 Cal.4th at p. 504.) Given that the law creates a “strong
presumption that any sentence that conforms to these sentencing norms is both rational
and proper,” a court will abuse its discretion in failing to strike a prior strike only under
limited circumstances. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) An
abuse of discretion may occur if a court fails to be aware of its discretion to dismiss a
prior strike, or if it considered impermissible factors in declining to dismiss. (Ibid.)
        B. The Dismissed Money Laundering Case
        Given the trial court’s statements during the sentencing hearing (that it was still
going to “factor” the dismissed case into its decision on the Romero motion), we
conclude that the trial court did rely, at least in part, on the dismissed case. The issue is
thus whether the dismissed case was an “impermissible factor” that the trial court should
not have taken into consideration.
        As defendant himself concedes, trial courts may rely on evidence that is outside
the record during sentencing, including convictions of which a defendant has been

                                               6
acquitted, so long as the conduct has been proved by a preponderance of the evidence.
(United States v. Watts (1997) 519 U.S. 148, 157.) The rationale underlying this practice
is that an acquittal simply establishes that there is reasonable doubt with respect to a
defendant’s guilt. (People v. Towne (2008) 44 Cal.4th 63, 86.)
       Furthermore, “[a] sentencing judge ‘may, consistently with the Due Process
Clause of the Fourteenth Amendment, consider responsible unsworn or “out-of-court”
information relative to the circumstances of the crime and to the convicted person’s life
and characteristics.’ ” (People v. Arbuckle (1978) 22 Cal.3d 749, 754.) This includes
“prior arrests which did not result in conviction, defendant’s criminal history [citation]
and raw arrest data [citation], so long as the information is accurate and reliable [citation]
and the judge is not misled into believing an arrest to be a conviction.” (People v. Rhines
(1982) 131 Cal.App.3d 498, 509 (Rhines); People v. Gragg (1989) 216 Cal.App.3d 32,
43 (Gragg).) The court may also consider and rely on hearsay statements contained in a
probation report, including the police reports used to prepare the crime summaries
contained in the report. (People v. Otto (2001) 26 Cal.4th 200, 212.)
       Here the trial court mentioned during the resentencing hearing that it considered
the fact that defendant was charged in the money laundering case. The court did not
indicate that it was considering the particular fact that the prosecutor had dismissed the
case against defendant in the interest of justice, or that the prosecutor had dismissed the
case against him due to insufficient evidence. Rather, the court emphasized during the
hearing that it concluded that defendant “was dismissed out of [the case] for whatever
reason,” that the money laundering scheme took a great deal of sophistication, and that
defendant’s codefendants in that case had received some prison time from their
convictions.4 Accordingly, there is nothing to support the contention that the trial court
       4
        Defendant insists that the trial court had to rely on the reason for the dismissal of
the money laundering charges set forth in the minute order, so it should not have
(continued)
                                              7
considered anything more than the fact that defendant was charged with the crime and
that the charges were ultimately dismissed, which was not necessarily an inappropriate
factor for it to consider under the circumstances.5 (Rhines, supra, 131 Cal.App.3d at p.
509; Gragg, supra, 216 Cal.App.3d at p. 43.)
       However, defendant asserts that the information the trial court possessed about the
money laundering case was inaccurate and unreliable. Defendant characterizes the
statement made by the People during the first resentencing hearing as “multiple level
hearsay of unspecified origin,” the consideration of which warrants reversal of the
judgment. He specifically cites two federal cases, United States v. Weston (9th Cir. 1971)
448 F.2d 626 (Weston) and United States v. Juwa (2nd Cir. 2007) 508 F.3d 694 (Juwa),
as persuasive authority for this contention.
       In Weston, multiple levels of hearsay from an informant contained in a
presentence report implicated Weston as the chief supplier of heroin in the western
Washington area. (Weston, supra, 448 F.2d at p. 628.) The trial court relied on this
information when it sentenced Weston. (Ibid.) The Ninth Circuit reversed the trial
court’s judgment, concluding that “a sentence cannot be predicated on information of so
little value as that here involved.” (Id. at p. 634.) The Ninth Circuit distinguished
Weston from Williams v. New York (1949) 337 U.S. 241. In Williams, the trial court had
sentenced the defendant to death, relying in part on hearsay statements contained in a


considered the statements made by the People that the charges were dismissed in the
interest of justice. However, nothing indicates that the trial court actually relied on the
People’s characterization of the dismissal.
       5
         Additionally, defendant’s argument that a trial court necessarily “abuses its
discretion when it considers a former criminal charge dismissed for lack of sufficient
evidence” is unavailing. Trial courts may properly consider raw arrest data, arrests that
did not result in a conviction, and a defendant’s criminal history so long as the
information is accurate and reliable, so long as it is not misled into believing the
defendant was convicted of any of the crimes. (Rhines, supra, 131 Cal.App.3d at p. 509.)


                                               8
presentence report implicating defendant in 30 burglaries of which he had not been
convicted. The Supreme Court affirmed, finding no violation of the defendant’s due
process rights. (Id. at p. 252.) The Ninth Circuit in Weston noted that unlike the
defendant in Williams, Weston denied the charges and objected to the judge’s
consideration of the statements during sentencing. (Weston, supra, at p. 631.)
       The Second Circuit decided a case with similar facts in Juwa. There, the Second
Circuit vacated and remanded a trial court’s judgment after it impermissibly concluded
that the defendant had committed the criminal acts charged in an indictment during
sentencing. (Juwa, supra, 508 F.3d at p. 702.) Both Weston and Juwa are
distinguishable from defendant’s case.
       During defendant’s first resentencing hearing, the People provided a short
summary of the money laundering case, claiming that defendant had been charged with
“conspiracy for credit card fraud, counterfeit credit card fraud where his trust fund at the
Santa Clara County jail was used to deposit counterfeit credit card money into [sic], and
then he would receive visitors and he would allow some of those funds to be handed out
to the co-participants who would come to county jail to visit him. He would release some
of his trust funds in Santa Clara County check [sic]. That’s what the accusations are.”
This information, unlike the information deemed unreliable in the Weston case, was not
an unsubstantiated characterization of defendant’s criminal history based on hearsay
contained within a presentence report. Juwa is also inapposite. In Juwa, the trial court
sentenced the defendant based on its conclusion that the defendant had committed the
charges levied against him in the indictment when there was no support for this
conclusion. Here, there is no indication from the record that the trial court believed that
defendant had engaged in any criminal wrongdoing himself, or that he was actually
convicted of any offense in connection with the money laundering case.



                                              9
       In addition, defendant did not contest or object to the People’s characterization of
the money laundering case during his two resentencing hearings. Therefore, the trial
court’s consideration and reliance on the information presented by the People during the
first resentencing hearing and on the information contained in the money-laundering case
file does not render the court’s decision-making process fundamentally unfair. (See
People v. Peterson (1973) 9 Cal.3d 717, 726.)
       Lastly, defendant also finds fault with the trial court’s statement that the money
laundering offense involved a great deal of criminal sophistication. He contends that the
trial court could not have meaningfully concluded that he personally engaged in any
criminal wrongdoing. We agree; however, his conclusion that the trial court determined
he had engaged in criminal wrongdoing misinterprets the trial court’s statement. The trial
court stated that it believed the offense was the type that “takes a great deal of
sophistication.” The trial court did not indicate that it believed that the crime involved a
great deal of sophistication on the part of defendant, and again, there is nothing to
demonstrate that the trial court believed defendant was actually guilty of the offense.
       In sum, the trial court did not abuse its discretion, as it did not rely on unreliable
information and there is nothing that demonstrates it erroneously believed defendant
actually committed crime or that he was guilty of the dismissed charge.
       C. Cruel and Unusual Punishment
       Next, defendant contends that the trial court abused its discretion because it
incorrectly believed that he was advancing an argument about cruel and unusual
punishment, when he was actually urging the court to exercise its discretion under section
1385 since dismissing only one of his prior strikes would still result in a punishment
within the Three Strikes scheme.6 This argument is without merit.
       6
         Defendant maintained that if a dismissal of one of a defendant’s prior strikes
results in a sentence that is “not lenient,” a court may properly conclude that he or she
(continued)
                                              10
       The transcript of the second resentencing hearing indicates that the trial court
noted on the record that it had recalled the sentence because it believed a cruel and
unusual punishment argument had not been addressed. However, this statement by the
trial court does not necessarily imply that it was ignoring defendant’s arguments in his
recall letters, or that it had not considered the arguments raised in defendant’s letters
requesting a recall of his sentence.
       The general rule is “ ‘that a trial court is presumed to have been aware of and
followed the applicable law.’ ” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) This
rule extends to “judicial exercises of discretion” during sentencing. (People v. Mosley
(1997) 53 Cal.App.4th 489, 496.) It is true that the trial court’s sentencing must be well
informed. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981.) A trial court
must also “ ‘consider evidence offered by the defendant in support of his assertion that
the dismissal would be in furtherance of justice.’ ” (Carmony, supra, 33 Cal.4th at p.
375.) Contrary to his assertions, defendant has not shown that the trial court was
unaware of or did not consider the arguments raised in his recall letters, or that the trial
court was unaware of its discretion under Garcia.
       Furthermore, a court is not required to strike a prior strike under Garcia if there
are factors present that may justify such a decision. Garcia concluded that it was not an
abuse of discretion for a trial court to dismiss a prior strike with respect to one count but
not another. It does not compel a trial court to dismiss a prior strike simply because
factors exist that may justify doing so. The decision to dismiss one or more prior strikes
is still discretionary, and there continues to be a strong presumption that sentences that
conform to the sentencing norms set forth under the Three Strikes law are both rational



can be “ ‘deemed outside the [Three Strikes] scheme’s spirit,’ at least ‘in part . . . .’ ”
(Garcia, supra, 20 Cal.4th at p. 503.)


                                              11
and proper. (Carmony, supra, 33 Cal.4th at p. 378.) The trial court therefore did not
abuse its discretion in denying defendant’s Romero motion.
                                      DISPOSITION
      The judgment is affirmed.




                                                             Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




                                           12
