Filed 5/13/15 P. v. Keeler 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C075972

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62123137)

         v.

BRETT MICHAEL KEELER,

                   Defendant and Appellant.




         Defendant Brett Michael Keeler, thrice convicted of driving under the influence of
alcohol (DUI), was arrested yet again for the same offense while on parole for a prior
strike conviction. He appeals from his conviction of driving under the influence with a
prior felony DUI (Veh. Code, §§ 23152, subd. (a), 23550.5) and driving with a suspended
license (Veh. Code, § 14601.2, subd. (a)). The jury found true an allegation that
defendant refused to take a chemical test. (Veh. Code, § 23577.) The trial court found
true allegations that defendant had three prior DUI convictions (Veh. Code, § 23350),
two prior felony DUI convictions within the last 10 years (Veh. Code, § 23550.5,
subd. (a)(1), (2)), a serious or violent felony conviction (Pen. Code, §§ 667, subds. (b)-(i),

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1170.12, subds. (a)-(d)), and three felony convictions that resulted in prison terms (Pen.
Code, § 667.5, subd. (b)), including a hit and run conviction in the State of Washington
involving the death of a bicycle rider. The court further found defendant was ineligible
for probation. (Pen. Code, § 1203, subd. (e)(4).)
       Notwithstanding his prior criminal record, prior failure to seek help for his
alcoholism, and lack of cooperation in the investigation of the crash resulting from his
DUI, defendant insists that he should be considered outside the spirit of the “three
strikes” law because his offenses were nonviolent and relatively minor products of his
alcohol addiction; the trial court therefore abused its discretion in refusing to strike his
prior strike conviction. We disagree and affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Brent Hilz was soliciting customers for a windshield repair business at a gas
station in Placer County on the afternoon of July 3, 2013. He saw a man, later identified
as defendant, pull into the station in a pickup truck. Defendant stumbled as he stepped
out of his truck and then walked unsteadily into the station’s convenience store. Hilz
noticed the smell of alcohol as defendant passed by.
       A short time later, defendant left the store and started pumping gas. Hilz watched
as defendant lost his balance and fell against a gas pump. When defendant got into his
truck to drive away, Hilz called 911 and reported that defendant was driving under the
influence.
       Placer County Sheriff’s Deputy Christopher Carlton was dispatched to the gas
station in response to Hilz’s 911 call. While en route, Deputy Carlton received a report
of a crash involving a pickup truck matching the description of the truck from the gas
station.
       Deputy Carlton arrived at the scene of the crash and found defendant in the
driver’s seat of the truck. Inside the truck, Deputy Carlton saw several beer bottles. He
noticed that defendant smelled strongly of alcohol, his speech was slow and slurred, and

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his eyes were bloodshot and watery. Based on his training and experience, Deputy
Carlton formed the opinion that defendant was incapable of operating a motor vehicle
safely.
          California Highway Patrol Officer Michael Spitzer arrived at the crash scene,
spoke to Deputy Carlton, and took over the investigation. Officer Spitzer then spoke to
defendant, who was seated in Deputy Carlton’s patrol car. Officer Spitzer smelled
alcohol and noticed that defendant’s speech was slurred and his eyes were bloodshot and
watery. Officer Spitzer also determined that defendant’s license was suspended.
          Defendant was taken to the hospital with minor injuries. At the hospital,
defendant was examined by Dr. Michael Ridgeway, who observed that defendant
“smelled heavily of alcohol” and exhibited “a depressed level of consciousness.”
Dr. Ridgeway ordered blood tests, which later revealed defendant had alcohol in his
system.
          Following further investigation at the scene, Officer Spitzer went to the hospital
and resumed his conversation with defendant. At the hospital, defendant claimed he had
not had anything to drink, but he refused to take any chemical or field sobriety tests.
Because defendant continued to exhibit physical symptoms of intoxication, Officer
Spitzer concluded that defendant was unable to safely operate a vehicle and placed him
under arrest.
          Defendant was charged by information with felony DUI with a prior felony DUI
conviction (Veh. Code, §§ 23152, subd. (a), 23550.5; count one) and driving with a
suspended license (Veh. Code, § 14601.2, subd. (a); count two). With respect to
count one, the information further alleged that defendant had three prior DUI convictions
(Veh. Code, § 23350), two prior felony DUI convictions within the last 10 years (Veh.
Code, § 23550.5), a serious or violent felony conviction (Pen. Code, §§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d)), three felony convictions that resulted in prison terms (Pen.
Code, § 667.5, subd. (b)); refused to take a chemical test (Veh. Code, § 23577); and was

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ineligible for probation (Pen. Code, § 1203, subd. (e)(4)). Defendant pleaded not guilty
and denied the special allegations.
        Four days after trial commenced, a jury found defendant guilty on all counts. The
jury also found that defendant refused to take a chemical test. In a bifurcated proceeding,
the trial court found all of the allegations pertaining to defendant’s prior convictions to be
true.
        Prior to sentencing, defendant filed a Romero motion1 asking the trial court to
strike his prior strike conviction for battery with serious bodily injury (Pen. Code, § 243,
subd. (d)) on the grounds that all of defendant’s prior convictions, including the strike,
were the result of his alcohol dependency, for which he was now willing to seek
treatment. The trial court denied the motion, stating:
        “In reaching a decision, the Court has carefully reviewed the following materials:
One, the defendant’s Romero motion filed January 7th, 2014; the People’s sentencing
memorandum filed November 6th, 2013; the probation report in this case; the arguments
and comments of the attorneys made in court; and all evidence presented during the trial
in this matter.
        “In this case, the Court must determine whether the defendant may be deemed to
be outside the spirit of the three strikes law in whole or in part in light of the nature and
circumstances of the defendant’s present felonies and the prior strike conviction and the
particulars of his background, character and prospects. In doing so, the Court has
considered the factors and guidelines set forth in the cases of People vs. Williams
[(1998)] 17 Cal.4th 148, and People vs. [Superior Court (]Romero[)], a 1996 case,
13 Cal.4th 497.




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

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       “The Court has also considered the constitutional rights of the defendant, the
rights of society to be protected from potential future criminal acts of the defendant, and
the purpose of the three strikes law.
       “Specifically, the Court makes the following findings: Regarding the nature and
circumstances of the present felony, the Court finds the current felony did not involve
violence. The Court finds the current felony, though, is serious since it did involve a
crash, while under the influence of alcohol, of a vehicle. The Court takes into
consideration and finds the defendant was mostly not cooperative in this case. The Court
takes into consideration that the defendant was on parole at the time of the current
offense.
       “Regarding the nature and circumstances of the prior strike, the Court takes into
consideration that the strike conviction was from 2011; the conduct that led to the
conviction occurred in 2008. The Court finds that the Court -- the strike did involve
violence, and that the strike arose from a single act.
       “The Court also takes into consideration the defendant’s past criminal record
which consists of the following: A 1990 hit and run from the state of Washington, a
felony, which resulted in the death of a bicycle rider; 1996, false impersonation, felony,
in California -- the rest of the convictions are California -- year 2000, a violation of
Vehicle Code Section 14601.2, driving on a suspended license and vandalism,
misdemeanors; 2002, another misdemeanor, conviction for driving on a suspended
license; from 2002, another conviction for driving -- a third conviction -- I’m sorry -- a
second conviction in 2002 for driving on a suspended license, misdemeanor; 2005, a
reckless driving conviction as a misdemeanor; 2010, a violation of Vehicle Code
Section[s] 23153 and 20001, which is a hit-and-run with a vehicle and driving under the
influence causing injury, both felonies; also from 2010, another conviction of driving
under the influence causing injury while driving on a suspended license; in 2011, a
violation of Penal Code Section 243(d), battery, causing serious bodily injury.

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       “The Court finds that this criminal history is very serious, and that I think the
defendant poses a very serious risk to injuring people in the public. It has already
occurred. The Court finds the defendant has a history of conduct which injures members
of society, and I also find the defendant has an alcohol problem, and he has indicated that
he is willing to -- and desires to take care of that alcohol problem. I have taken in and
factored all of these issues.
       “I also take into fact -- into consideration the facts regarding the defendant’s
background, character and prospects, including the fact that the defendant is
approximately 49 years old, he does not appear to have any significant health problems,
other than an alcohol, substance abuse problem. I find that the -- based on the history
that I’ve reviewed, I think the prospects, though, from an objective point of view of the
defendant leading a crime-free life in the community is troubling. And I do also find that
the defendant has been gainfully employed when he’s out of custody, so I have taken into
account all factors on all sides.
       “After careful consideration of all of the above-mentioned factors, the Court finds,
in light of the nature and circumstances of the defendant’s present felony and prior strikes
and the particulars of his background, character and prospects, and what the Court
considers a just result, the -- the defendant’s current strike will remain, and the Court
finds that the defendant’s current criminal offense falls within the spirit of the three
strikes law. Accordingly, the Court denies the motion to dismiss a strike and declines --
or denies the Romero motion.” The trial court then sentenced defendant to an aggregate
term of seven years in state prison (the upper term of three years, doubled for the strike
prior, plus one year for the prior prison term).
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
       On appeal, defendant contends the trial court abused its discretion by denying his
motion to strike his prior strike conviction pursuant to Romero. We disagree.

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       Penal Code section 1385 gives the trial court authority, on its own motion or upon
application of the prosecution “and in furtherance of justice,” to order an action
dismissed. (§ 1385, subd. (a).) In Romero, the California Supreme Court held that a trial
court may use section 1385 to strike or vacate a prior strike for purposes of sentencing
under the three strikes law, “subject, however, to strict compliance with the provisions of
section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at
p. 504.) Thus, a trial court’s “failure to dismiss or strike a prior conviction allegation is
subject to review under the deferential abuse of discretion standard.” (People v.
Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
       In ruling on a Romero motion, the trial court “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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
       Dismissal of a strike is a departure from the sentencing norm. Therefore, in
reviewing a Romero decision, we will not reverse for abuse of discretion unless the
defendant shows the decision was “so irrational or arbitrary that no reasonable person
could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified where
the trial court was unaware of its discretion to strike a prior strike or refused to do so for
impermissible reasons. (Id. at p. 378.) But where the trial 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 trial court’s ruling, even if we might have ruled
differently in the first instance’ [citation].” (Ibid.)
       Defendant argues that the trial court abused its discretion by failing to give due
consideration to “a constellation of mitigating factors” that, in defendant’s view, weighed
in favor of striking the prior strike conviction. Specifically, defendant claims the trial

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court failed to appreciate the nonviolent nature of the current offense and his ongoing
struggle with alcohol addiction. However, the record reveals that the trial court carefully
considered all of the relevant factors, including the nonviolent nature of the current
offense and defendant’s struggle with alcohol addiction.
       In any event, the fact that the current offenses were nonviolent does not mandate
the granting of a Romero motion. (See People v. Strong (2001) 87 Cal.App.4th 328, 344
[reversing order granting Romero motion based on nonviolent nature of current offense
because “the nonviolent or nonthreatening nature of the felony cannot alone take the
crime outside the spirit of the law”]; see also People v. Poslof (2005) 126 Cal.App.4th 92,
108-109 [even though current crime, failing to register as sex offender, was nonviolent,
denial of the Romero motion was not an abuse of discretion]; People v. Gaston (1999)
74 Cal.App.4th 310, 321 (Gaston) [although current crime of car theft was “not as serious
as many felonies,” it was “far from trivial”].)
       Furthermore, defendant’s current offenses, though nonviolent, were nonetheless
quite serious. (Gaston, supra, 74 Cal.App.4th at p. 315.) Defendant was involved in a
DUI accident while on parole for a prior strike conviction. Although no one was injured
(other than defendant, who suffered minor injuries), defendant demonstrated a disturbing
disregard for the lives and safety of others when he got behind the wheel. To make
matters worse, he was largely uncooperative in the ensuing investigation, suggesting an
unwillingness to take responsibility for his actions. Based on these facts, the trial court
could reasonably conclude that defendant poses a serious danger to the community,
particularly in light of his lengthy history of unlawful driving and DUI offenses. On this
record, the fact that defendant’s current offenses were nonviolent does not take him
outside of the spirit of the three strikes law.
       Defendant relies on People v. Garcia (1999) 20 Cal.4th 490, 499 for the
proposition that “[a] court might . . . be justified in striking prior conviction allegations
with respect to a relatively minor current felony, while considering those prior

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convictions with respect to a serious or violent current felony.” However, Garcia merely
recognizes that the trial court has discretion to strike priors on a count-by-count basis and
may exercise that discretion with respect to a “relatively minor current felony.” (Ibid.)
Here, the trial court was clearly aware of its discretion to strike defendant’s prior battery
conviction but found no grounds for doing so. As we have shown, the trial court’s
determination was not arbitrary or irrational.
       Defendant also argues that the trial court failed to fully consider his alcohol
addiction. However, drug or alcohol addiction “is not necessarily regarded as a
mitigating factor when a criminal defendant has a long-term problem and seems
unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511
(Martinez).) Here, the record indicates that defendant, age 49, began drinking when he
was 16 years old. There is nothing in the record to suggest that defendant has ever sought
treatment for alcohol addiction, despite his history of alcohol-related offenses.
       Although defendant’s recent efforts to seek treatment are commendable, they do
not relieve him from the operation of the three strikes law. Furthermore, the trial court
could reasonably conclude that defendant’s prolonged alcohol abuse and his failure to
seek treatment for more than 30 years suggest his prospects for rehabilitation are bleak.
(Gaston, supra, 74 Cal.App.4th at p. 322; Martinez, supra, 71 Cal.App.4th at p. 1511; see
also In re Handa (1985) 166 Cal.App.3d 966, 973-974 [“Drug use or drug addiction at
the time of an offense is an example of a disputable factor in mitigation. The sentencing
court may find that drug use did not significantly affect the defendant’s capacity to
exercise judgment or, in the case of an addiction of long standing, that the defendant was
at fault for failing to take steps to break the addiction”].)
       Finally, defendant contends “a significant prison term was still available to the
court in the absence of the ‘strike’ conviction. It could have imposed a term as high as
four years for an offense that was relatively minor.” We reject defendant’s
characterization of the current offenses as “relatively minor.” As we have discussed,

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defendant’s current offenses, though nonviolent, demonstrated a complete disregard for
public safety. Defendant’s current offenses are particularly troubling in light of his
criminal history, which includes a hit and run in which a bicyclist was killed and a DUI
causing injury. Under the circumstances, we cannot say that the trial court’s carefully
reasoned decision to deny the Romero motion was arbitrary or irrational. Accordingly,
we conclude there was no abuse of discretion.
                                      DISPOSITION
       The judgment is affirmed.



                                                            RAYE              , P. J.



We concur:



      NICHOLSON             , J.



      BUTZ                  , J.




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