Filed 5/12/16 P. v. Hemphill 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         D067959

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN318225)

MICHAEL HEMPHILL,

         Defendant and Appellant.


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

Kearney, Judge. Affirmed.



         Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.

Ragland8, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found defendant and appellant Michael Hemphill guilty of first degree

murder (Pen. Code,1 § 187, subd. (a)) and found true that, in committing the murder, he

intentionally and personally used and discharged a firearm, proximately causing the death

of the victim (§§ 12022.5, subd. (a) & 12022.53, subds. (c) & (d)). The trial court found

true that defendant had a prior serious felony conviction and a prior strike conviction

(§ 667, subds. (a)(1) & (b)-(i)). The court sentenced defendant to state prison for 80

years to life.2

       On appeal, defendant's sole argument is that the court abused its discretion and

thus erred when it refused under People v. Superior Court (Romero) (1996) 13 Cal.4th

497 (Romero) to strike his prior serious felony conviction from 1981. We disagree and

thus affirm the judgment of conviction.

1      All further statutory references are to the Penal Code.

2       The record shows at sentencing the court found the aggregate term for count 1 to
be 75 years to life and then stated that, pursuant to section 667, subdivision (a)(1), the
"court is required to add an additional 5 years consecutive, making the total commitment
85 years to life," instead of what should have been 80 years. Neither party raised this
issue in their briefing. We realize the general rule is that the oral pronouncements of the
court are presumed correct. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Nonetheless,
under these circumstances—in which the abstract of judgment, the probation report, and
the minute order each show defendant was sentenced to 80 years to life, and when it
appears the reference to 85 years was merely a simple mathematical error by the court—
we deem the abstract of judgment and minute order to prevail over the reporter's
transcript. (See People v. Cleveland (2004) 32 Cal.4th 704, 768 [concluding the
"erroneous statement in the reporter's transcript [was] of no effect" when the abstract of
judgment and minute order correctly showed defendant was not charged with a prior
prison term under section 667.5, but rather only a prior serious felony conviction under
section 667]; see also People v. Smith (1983) 33 Cal.3d 596, 599 [noting when the record
is in conflict and cannot be harmonized, " 'that part of the record will prevail, which,
because of its origin and nature or otherwise, is entitled to greater credence' "].)

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                                  FACTUAL SUMMARY3

       Escondido Police Officer Russell Gay testified that on January 24, 2013, he

responded to a location in Escondido where defendant was then living. Defendant had

called police after the owner of the property (landlord) and victim Brandon Sanchez, who

worked for the landlord, had allegedly tried to evict defendant from a trailer on the

landlord's property. During Officer Gay's conversation with defendant, Sanchez

approached and told Officer Gay that the landlord did not want defendant living on the

property. Officer Gay advised Sanchez that if the landlord wanted to evict defendant, the

landlord needed to go to court.

       As the conversation continued, Officer Gay noted defendant became increasingly

upset. According to Officer Gay, defendant then "kind of ball[ed] up his fists and kind of

gets -- sticks out his chest like he's really getting irritated and assuming a posture like he

wants to fight. [¶] [T]hey [Sanchez and defendant] are probably 10 feet apart at that

point. [Defendant] takes a couple pretty quick steps directly at Mr. Sanchez like he

wanted to fistfight with him." Officer Gay testified he warned defendant that if he started

a fistfight in front of police, defendant was "probably going to get arrested." Officer Gay

testified he advised Sanchez and defendant to handle the eviction in court and leave each

other alone.

       Witness Jose Espinoza testified that he and Sanchez had lived across the street

from each other for about 10 years and that they were "good friends." About 6:00 p.m.


3      Given that defendant challenges only the court's refusal to strike his prior serious
felony conviction, we only briefly summarize the facts.
                                               3
on April 24, 2013, Espinoza, Sanchez and another friend went to the landlord's property

so that Sanchez could water some plants in a nursery and do some other chores. Later

that evening, when it was dark, Espinoza saw defendant come outside.

       While standing about three or four feet away, defendant picked up a rake and

started swinging it "side to side." At the same time, defendant kept saying to Sanchez

that he was "tired of having all kinds of -- he was tired of all his ideas and all the people

going over to the property." According to Espinoza, defendant was aggressive. In

response, Sanchez told defendant to go back inside his trailer and leave them alone.

Defendant dropped the rake and went inside his trailer.

       A few minutes later, defendant came back outside and started arguing with

Sanchez again. Espinoza described defendant's demeanor as aggressive, noting defendant

was yelling loudly at Sanchez. During this tirade, Espinoza also noted defendant kept

putting his hand behind his back "like he wanted to pull out something, but he wouldn't."

Espinoza had also seen defendant put his hand behind his back when defendant initially

came outside. Concerned defendant might pull out a weapon, Espinoza testified he told

Sanchez "like, three times" that they should leave. According to Espinoza, Sanchez did

not seem worried by defendant. Defendant then returned to his trailer.

       Espinoza testified they next went into another trailer located on the property.

When Espinoza went outside to retrieve Sanchez's jacket from a truck, defendant came

outside a third time and, as before, began yelling. Sanchez, in response, came outside

and sat on a wooden table. Espinoza heard defendant make comments about Sanchez's

mother and father.

                                              4
       Espinoza testified that after Sanchez told defendant not to make comments about

his mother and father, defendant replied, "I had enough of you," began walking toward

Sanchez and, when defendant was about eight feet away, raised his right hand up to a 45-

degree angle and shot Sanchez. Although Espinoza did not see the actual gun in the dark,

he saw "a flame come out and smoke" and heard the gunshot. Sanchez next stood up,

grabbed his stomach and said, "He shot me." Afraid he would be next, Espinoza ran to

the street, flagged down a couple inside a car and asked them to call police and an

ambulance because his "friend had been shot."

       Escondido Police Officer Shannon Martin testified she transported defendant to

the police station following his arrest for shooting Sanchez. During "processing" and

while Officer Martin's body camera was recording, defendant spontaneously exclaimed,

"Alright. I shot him. Okay? So we know that." When Officer Martin responded,

"Okay," defendant added, "I should have shot him last time but you got there early." The

record shows a video of this recording was played for the jury.

       Deputy Medical Examiner Craig Nelson testified he performed the autopsy on

Sanchez on April 26, 2013. Dr. Nelson testified Sanchez had an entrance wound on his

right palm. Near that wound was soot and two small metallic particles, suggesting the

victim was shot at close range. Dr. Nelson noted the victim had an exit wound on his

palm and an entrance wound to the right side of his chest. Dr. Nelson testified the bullet

next passed through one of the victim's ribs, through the right lung, through the heart,

through the left lung and then through another rib before lodging just underneath his skin.

Dr. Nelson opined the victim died rapidly from the bullet wound.

                                             5
                                        DISCUSSION

       A. Brief Additional Background

       The record shows before sentencing defendant moved under Romero to dismiss

his serious prior conviction. Defendant contended that his serious prior conviction

should be struck because it was remote, as it had occurred about 33 years before he shot

Sanchez, and that since 1985, when he suffered "several misdemeanor convictions," he

has not suffered any criminal conviction until the Sanchez shooting.

       In opposing defendant's motion, the People argued defendant has led a continuous

life of crime. In addition to the serious felony conviction in 1981, the People noted

defendant was convicted in 1985 for giving false information to a police officer. In

addition, that same year he was convicted of trespassing, resisting a police officer and

giving false information to a police officer. Finally, defendant was arrested but not

convicted in 2005 for damaging a phone line and domestic violence. Because the prior

strike conviction also involved a shooting and the instant case involved a shooting

leading to death, the People argued the court should decline to strike the 1981 serious

felony prior.

       At sentencing, the record shows the court carefully considered whether to strike

the 1981 prior on the basis that conviction was 32 years ago, which it noted was a

"substantial period of time." The court also noted that, while this was an important

factor, it was not the only factor, stating:

       "The court is also to look at the nature and circumstances of the present felony, the

nature and circumstances of the prior strike, as well as, in particular, [defendant's]

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background, character, and prospects. [¶] . . . [¶] The prior strike, though many years

ago, also was an assault with a firearm where he apparently shot at two people. [¶]

Given the severity of the new offense, the severity of the old offense, and the similarity of

the offenses, I think that overcomes even the age of the prior conviction such that I don't

find him to be deemed outside the scheme spirt. I don't find that the interest of justice

would be served by striking the strike. [¶] I believe [defendant] is extremely dangerous,

dangerous to the public, and charges were serious on both offenses. [¶] For those

reasons, the court will not exercise its discretion under Romero."

       B. Guiding Principles and Analysis

       As the trial court recognized, in the furtherance of justice it may strike a prior

serious and/or violent felony conviction allegation pursuant to section 1385, subdivision

(a). (People v. Williams (1998) 17 Cal.4th 148, 161.) When deciding whether to strike a

prior conviction, "the court in question must consider whether, in light of the nature and

circumstances of his [or her] present felonies and prior serious and/or violent felony

convictions, and the particulars of his [or her] 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." (Ibid.)

       "[A] defendant's sentence is also a relevant consideration when deciding whether

to strike a prior conviction allegation; in fact, it is the overarching consideration because

the underlying purpose of striking prior conviction allegations is the avoidance of unjust

sentences." (People v. Garcia (1999) 20 Cal.4th 490, 500.) When a court rules on a

                                              7
Romero motion, it must remain mindful that the purpose of the three strikes law is to

provide greater punishment for recidivists. (People v. Acosta (2002) 29 Cal.4th 105, 127;

§ 667, subd. (b) [it is the intent of the Legislature in enacting section 667 to "ensure

longer prison sentences and greater punishment for those who commit a felony and have

been previously convicted of serious and/or violent felony offenses"].)

       It is well settled that a trial court's denial of a motion to strike a prior felony

conviction allegation is reviewed under the abuse of discretion standard. (Romero, supra,

13 Cal.4th at p. 530.) Therefore, it is not enough for a defendant "to show that reasonable

people might disagree about whether to strike one or more of his [or her] prior

convictions. Where the record demonstrates that the trial court balanced the relevant

facts and reached an impartial decision in conformity with the spirit of the law, we shall

affirm the trial court's ruling, even if we might have ruled differently in the first

instance." (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) The burden is on

the defendant " 'to clearly show that the sentencing decision was irrational or arbitrary.

[Citation.] In the absence of such a showing, the trial court is presumed to have acted to

achieve legitimate sentencing objectives, and its discretionary determination to impose a

particular sentence will not be set aside[.]' " (People v. Superior Court (Alvarez) (1997)

14 Cal.4th 968, 977–978; see People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony)

[noting a "trial court does not abuse its discretion unless its decision is so irrational or

arbitrary that no reasonable person could agree with it"].)

       Here, it is clear from the record that the trial court was aware of its discretion to

strike defendant's prior serious felony conviction, inasmuch as the court recognized that

                                                8
32 years between his 1981 conviction and the shooting of Sanchez was a "substantial

period of time." Nonetheless, the court also correctly concluded there were other factors

to consider in determining whether to grant or deny defendant's Romero motion.

       Specifically, the court noted that both in 1981 and in 2013, defendant used a gun

to shoot at his victims. In addition, the record shows the court looked at the nature and

circumstances of the current felony, which it noted involved the first degree murder of an

unarmed man by use of a firearm. The court found the record "in this case support[s] the

fact that the decision to kill Mr. Sanchez was calculated, needless, and unnecessary at the

time." The court also found defendant was "extremely dangerous," a finding which also

is supported by the record given defendant's behavior before the shooting and his

statements afterward that he should have shot Sanchez "last time," when police were

called out to the property. We thus conclude on this record that the court's decision not to

strike defendant's prior serious felony was not "so irrational or arbitrary" to constitute an

abuse of discretion. (See Carmony, supra, 33 Cal.4th at p. 377.)

       That defendant disagrees with the court's decision following its proper exercise of

discretion, or believes the court should have attached more weight to other factors in

arguing his prior 1981 conviction should have been struck, is not the test on review. (See

Myers, supra, 69 Cal.App.4th at p. 310 [noting when "the record demonstrates that the

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

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

ruled differently in the first instance"].) In light of the seriousness of the instant crime

and the court's finding defendant is "extremely dangerous," we conclude the court

                                               9
properly found defendant's situation was not so extraordinary as to fall outside the spirit

of the three strikes scheme. (See Carmony, supra, 33 Cal.4th at p. 378.)

                                      DISPOSITION

       The judgment of conviction is affirmed.




                                                                       BENKE, Acting P. J.

WE CONCUR:


McDONALD, J.


IRION, J.




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