Filed 10/23/13 P. v. Martinez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056782

v.                                                                       (Super.Ct.No. FWV702237)

ROBERT DANIEL MARTINEZ,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,

Judge. Affirmed.

         Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury found defendant and appellant Robert Daniel Martinez guilty of evading a

peace officer with willful disregard (Veh. Code, § 2800.2, subd. (a), count 1), and child

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endangerment under circumstances likely to cause great bodily harm (Pen. Code, § 273a,

subd. (a), count 2).1 In a bifurcated hearing, a trial court found true the allegations that

defendant had two prior strike convictions. (Pen. Code, §§ 1170.12, subds. (a)-(d) &

667, subds. (b)-(i).) The court sentenced defendant to 25 years to life in state prison on

count 1. The court also imposed a term of 25 years to life on count 2, but stayed the

sentence pursuant to section 654.

         Defendant’s sole contention on appeal is that the court abused its discretion by

refusing to strike one or both of his prior strike convictions. We affirm.

                                  FACTUAL BACKGROUND

         On September 13, 2007, five police officers were dispatched on a 911 call to a

residence in the city of Ontario. They were dressed in their police uniforms. Upon

arrival, the officers did not enter the residence, but stood outside the gate in front of the

house. Defendant came out of the house, and one of the officers called out to him.

Defendant made an unintelligible reply and went back into the house. A few minutes

later, defendant came out of the house with his son, and they got into a car. Defendant

backed up the car with a sudden, quick acceleration, right toward the officers. Just as an

officer got out of the way, defendant drove through the gate and sped off in reverse. The

police chased defendant at speeds in excess of 100 miles per hour on surface streets.

Defendant ultimately crashed into some wood posts, and ended up in a construction site

ditch. Defendant resisted the police, but they were finally able to control the situation

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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and arrest him. His son, who was in the front passenger seat, was not injured, but he was

crying hysterically.

                                      DISCUSSION

          The Trial Court Did Not Abuse Its Discretion in Declining to Dismiss

                          Defendant’s Prior Strike Convictions

       Defendant contends that the trial court abused its discretion when it denied his

motion to dismiss one or both of his prior strike convictions pursuant to People v.

Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He specifically claims that

his case falls outside the three strikes scheme because: (1) doubling the maximum

penalty for his conviction would have served the purpose of protecting the community;

(2) his two prior strikes arose from a single incident on the same date and involved the

same victim; and (3) although his criminal history goes back to 1994, most of his

convictions are for “relatively innocuous” misdemeanors. We find no abuse of

discretion.

       A. Relevant Background

       Defendant’s two prior strikes arose from a 2004 incident. Defendant entered a

plea agreement and pled guilty to attempted premeditated murder (§§ 664, 187, subd. (a))

and shooting at an inhabited dwelling (§ 246). He also admitted a gun use enhancement.

(Former § 12022.53, subd. (d)). In exchange, he was to receive a 10-year prison term and




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be released on a Cruz/Vargas2 waiver, with the stipulation that if he violated the law or

failed to appear for sentencing he would receive two life terms. Prior to his sentencing

hearing, defendant committed the current offenses. The court thus sentenced him to life

with the possibility of parole, plus a consecutive 25 years to life in the prior strike case.

       In the instant case, defendant filed a motion requesting the court to strike his prior

strike convictions. After reviewing the moving and opposing papers and listening to oral

argument, the court denied defendant’s motion.

       B. The Court Properly Exercised Its Discretion

       In Romero, the Supreme Court held that a trial court has discretion to dismiss prior

strike conviction allegations under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-

530.) In People v. Williams (1998) 17 Cal.4th 148 (Williams), the court identified a

number of specific factors a trial court should consider when exercising its discretion.

“[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.” (Id. at p. 161.)

       2People v. Cruz (1988) 44 Cal.3d 1247, 1254, footnote 5; People v. Vargas
(1990) 223 Cal.App.3d 1107, 1113.


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       “[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation

under section 1385 is subject to review for abuse of discretion.” (People v. Carmony

(2004) 33 Cal.4th 367, 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.) “Because the circumstances must be ‘extraordinary . . . by which a career

criminal can be deemed to fall outside the spirit of the very scheme within which he

squarely falls once he commits a strike as part of a long and continuous criminal record,

the continuation of which the law was meant to attack’ [citation], the circumstances

where no reasonable people could disagree that the criminal falls outside the spirit of the

three strikes scheme must be even more extraordinary.” (Id. at p. 378.)

       The circumstances here were far from extraordinary, and the trial court properly

applied the Williams’ factors to this case in denying defendant’s motion. The court

reviewed defendant’s background and criminal history in detail. His criminal history

dates back to 1994, when he was 19 years old. He has three felony convictions from

three separate cases, as well as seven misdemeanor convictions, in addition to the prior

strikes. Defendant’s past criminal history is serious and includes such offenses as driving

with a suspended license (Veh. Code, § 14601), driving under the influence (Veh. Code,

§ 23152), being an accessory to a felony (§ 32), vandalism (§ 594), battery (§ 242),

second degree burglary (§ 459), and assault with a deadly weapon (§245, subd. (a)(1)).

His criminal history includes three state prison terms, which apparently did nothing to

deter him from committing further crimes. It is clear from the record that prior

rehabilitative efforts have been unsuccessful. As the court noted, defendant had


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performed poorly on probation. Furthermore, the court noted its concern about the

“highly dangerous and violent nature” of defendant’s prior strike offenses. It also pointed

out that the prior strikes were recent, and defendant had a “life offense hanging over his

head” and chose to commit the current crimes when he had not even been sentenced on

his prior convictions. The court then discussed the current offenses, noting there was “a

lengthy pursuit of ten miles” which was a “high-risk” pursuit that involved high speeds

and endangered the lives of many people on the road, as well as his own son’s life. The

court summed up its reasons for denying defendant’s motion to strike as his lengthy

criminal history, his unsatisfactory performance on probation, the “on-going high-risk

conduct in the instant case,” and the dangerous and violent nature of his recent prior

strikes.

       In light of the court’s extensive explanation of its reasons for declining to strike

defendant’s prior strike convictions, we do not find the decision to be arbitrary or

irrational. The record clearly shows that the court was aware of its discretion and the

applicable factors a court must consider in dismissing a prior strike, and that it

appropriately applied the factors. Thus, we cannot say that the court abused its discretion

when it declined to dismiss any of defendant’s prior strike convictions.




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                 HOLLENHORST
                                                               J.


We concur:


RAMIREZ
                      P. J.


KING
                         J.




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