Filed 8/17/16 P. v. Hand 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yuba)
                                                            ----




THE PEOPLE,                                                                                  C080216

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF14330)

         v.

DAVID THOMAS HAND,

                   Defendant and Appellant.




         Defendant David Thomas Hand pled no contest to second degree burglary and
admitted a prior strike. Prior to sentencing, he was given an opportunity to complete a
residential treatment program. When he failed to complete the program, the trial court
sentenced him to six years in prison. On appeal, he contends the trial court abused its
discretion in denying his Romero1 motion to strike his prior strike. We disagree.



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

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                                     BACKGROUND
        In exchange for dismissal of various charges, defendant pled no contest to second
degree burglary (Pen. Code, § 459)2 and admitted a prior strike for robbery. He had been
convicted in 2001 of two counts of robbery (§ 211) with an enhancement for personally
using a gun (§ 12022.53).
        Following his plea, he was permitted to enroll in a six-month residential drug
treatment program. It was “an opportunity to complete the program in order to show the
judge that he [could] earn a Romero and probation.” Defendant entered a treatment
program but was discharged approximately six weeks later.
        At sentencing, defendant presented a letter to the trial court, which his attorney
interpreted as a Romero motion and a request for probation. In the letter, defendant
explained that 40 days into his rehabilitation program, he took a urine test and was told
he had tested “dirty for things I’ve never used before.” He continued: “This is when I
screwed up, I got scared and I got high and missed the court date my attorney set up for
me. I freely admit that I messed up by getting high and running but at the same time I
wasn’t out there messing up [committing more crimes].” He attributed his conduct to his
addiction and stressed that another attempt at treatment would be his best chance of
curing his addiction.
        The People opposed the Romero motion, arguing defendant was not the person the
Supreme Court had envisioned in Romero. He had been given the opportunity to
complete a residential program before bringing a Romero motion, but he had failed to
complete the program and had also failed to return to the trial court for four to five
months after being discharged.




2   Further undesignated statutory references are to the Penal Code.

                                              2
       The People also noted defendant had two prior robbery strikes3 and had received a
12-year sentence, serving over 10 years in prison. Shortly after his release, he had
committed two more felonies (before committing his current felony). The People called
defendant a career criminal and noted any passage of time between his criminal
convictions was attributable only to incarceration.
       The trial court denied the motion: “The Romero is denied. Probation is denied.
He’s not eligible for a grant of probation, and he’s not a suitable candidate.” The court
then imposed a six-year term (the upper term, doubled for the strike). In doing so, the
court noted: “he has two 211s, which he went to state prison for 12 years. And then he
has, out of San Joaquin County November 7 and November 15th, 2013, felony vandalism
for which he was on probation when he committed this offense. . . . He has a significant
criminal record. . . . He has four prior felonies, two strikes. He has poor performance on
probation and parole in this matter; any way you look at it.”

                                      DISCUSSION

       On appeal, defendant contends the trial court abused its discretion in denying his
Romero motion. He raises an array of arguments. He argues the court failed to properly
consider the nature and circumstances of his current and prior offenses, as well as his
background, character, and prospects, and the fact that his current offense was committed
to support a drug addiction. He also argues the record contains no information on the
factual circumstances of his prior strike, and no facts suggest he ever committed a violent
act. We conclude the trial court acted within its discretion in denying his motion.




3  Defendant was convicted of two robbery counts in 2001, but the record demonstrates
the trial court and the parties understood defendant was being sentenced as a second
striker.

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       The three strikes law “ ‘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.” ’ ” (People v. Carmony (2004)
33 Cal.4th 367, 377 (Carmony).)
       A trial court properly exercises its discretion to strike a prior strike only if it finds
that “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 [three strikes] 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.” (People v. Williams (1998)
17 Cal.4th 148, 161.)
       When a trial court declines to strike a prior strike, we review that decision for
abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 374-375.) “[A] trial court does
not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at p. 377.) Reversal is justified where the court was
unaware of its discretion to strike a prior strike, or refused to do so at least in part for
impermissible reasons. (Id. at p. 378.) But where the court, aware of its discretion,
“ ‘balanced the relevant facts and reached an impartial decision in conformity with the
spirit of the law, we shall affirm the . . . ruling, even if we might have ruled differently in
the first instance’ [citation].” (Ibid.)
       Here, the trial court properly exercised its discretion in denying the Romero
motion. The record indicates the trial court was aware of its discretion and reached an
impartial decision under the spirit of the law.




                                                4
       While the trial court did not articulate specific reasons for denying the motion--
other than stating the Romero motion is denied and defendant was not a “suitable
candidate” for probation--nothing more is required. (See Carmony, supra, 33 Cal.4th at
p. 378 [“Where the record is silent . . ., or ‘[w]here 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. Gillispie (1997) 60 Cal.App.4th 429, 434
[“On a silent record in a post-Romero case, the presumption that a trial court ordinarily is
presumed to have correctly applied the law should be applicable”]; People v. Myers
(1999) 69 Cal.App.4th 305, 310 [“The court is presumed to have considered all of the
relevant factors in the absence of an affirmative record to the contrary”].)
       Here, the record amply demonstrates defendant fell within the spirit of the three
strikes law. He had been convicted of two counts of robbery with an enhancement for
personally using a gun, for which he received a 12-year sentence. After his release, he
violated parole and committed two more felonies and a misdemeanor, all before
committing his current offense. And while addiction may have motivated these offenses,
he was given an opportunity to complete residential treatment prior to sentencing in the
instant case and failed. In sum, nothing in the record compels a finding that defendant
should be treated as though he had not previously been convicted of his serious felony.
The trial court acted within its discretion in denying defendant’s Romero motion.




                                              5
                                   DISPOSITION

       The judgment is affirmed.




                                                  /s/
                                            Duarte, J.



We concur:



      /s/
Blease, Acting P. J.




     /s/
Murray, J.




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