Filed 7/17/14 P. v. Stapleton 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Appellant,                                        E059314

v.                                                                       (Super.Ct.No. RIF1203493)

AARON JOSEPH STAPLETON,                                                  OPINION

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Jerry E. Johnson, Judge.

(Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Reversed and remanded.

         Paul E. Zellerbach, District Attorney, and Alan D. Tate, Deputy District Attorney,

for the Plaintiff and Appellant.

         Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and

Respondent.




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       The People appeal after the trial court exercised its discretion to dismiss a 1986

prior serious felony (strike) offense, and proceeded to sentence defendant and respondent,

Aaron Joseph Stapleton, as a second striker on the current charges of failing to register as

a sex offender within five days after moving, and failing to register upon release from

custody. We reverse.

                        FACTS AND PROCEDURAL HISTORY

       In 1994, defendant was convicted of the crime of committing a lewd act on a child

under age 14, in violation of Penal Code section 288, subdivision (b). As a result of that

conviction, defendant was required to register as a sex offender under Penal Code section

290.

       In August 2012, the People filed a felony complaint alleging that, on or about

April 6, 2012, defendant had violated the registration statute when he failed to register

with the Riverside County Sheriff’s Department within five days of moving into the

county or changing his residence within the county. The complaint also alleged three

prior prison term enhancements, and three prior strike convictions (1986 attempted

burglary conviction, 1994 lewd act conviction, 1994 first degree burglary conviction).

       In November 2012, defense counsel filed papers inviting the trial court to exercise

its inherent discretion to dismiss one or more strike priors and other enhancements.

Defendant’s papers asserted the following narrative: “[Defendant] is required to register

under Penal Code Section 290. A compliance check was conducted by the SAFE team.

The SAFE team found that [defendant] was on a GPS device, and living at a sober living



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residence which parole had directed him to. However, while he had made an

appointment to register on March 8, 2012[,] he had not completed the registration

process. At the time the investigation was conducted [defendant] was in custody for a

parole violation based on his failure to register.” Defense counsel also explained that

both 1994 convictions arose out of a single incident: “According to the police reports[,]

[defendant] entered an open house [and] saw a child sitting on a recliner. He closed the

door, climbed on top of her and touched her breasts and vagina over her clothing. The

recliner tipped, and the child ran out of the house. The two charges share a conviction

date, and were part of a single commitment to state prison. It is clear these two counts

arise out of one continuous course of conduct.” Defense counsel asked, among other

things, that the court treat them as a single strike.

       The People opposed the defense request. The People indicated that defendant was

living at a residence in San Jacinto when he was incarcerated for a parole violation in

January 2012. He was released on March 6, 2012, and, upon his release, he was placed at

a sober living facility in Perris, subject to GPS tracking. “Approximately one week after

living at the facility, the house manager . . . provided the defendant bus fare to go to the

Lake Elsinore station to register. The defendant left the sober living facility and returned

later stating he had registered.” Defendant assertedly told his parole agent that he had

registered, but that he had lost the paperwork. Defendant’s parole agent told him several

times to register, but he failed to do so. Defendant telephoned the Lake Elsinore sheriff’s

station on March 8, 2012, to make a registration appointment. Defendant’s appointment



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was on March 14, 2012, but defendant failed to appear on that date. Defendant assertedly

admitted to investigators that he had told his parole agent that he had registered when he

had not. The People argued that the court’s discretion to dismiss a strike prior was

limited. The People argued that defendant did not fall outside the spirit of the Three

Strikes law’s harsher punishment scheme for recidivist offenders.

       The defense withdrew its request to dismiss a strike before the court ruled on it.

       After a preliminary hearing, defendant was held to answer on the charges. The

information alleged the two charged offenses (failure to re-register within five days of

changing his address within the county, and failure to register upon release from

incarceration), as well as two prison term prior offenses, and two prior strike offenses.

The two prison term priors and the two strike priors were based on the same two

substantive offenses: a 1986 conviction for attempted first degree burglary, and a 1994

conviction for committing a lewd act on a child under age 14. A jury found defendant

guilty of both charges and found all the enhancement and strike allegations to be true.

       At sentencing, the defense renewed its request for the trial court to exercise its

discretion to dismiss one or more of the strike priors. The court considered the papers

and opposition that had been filed in 2012. The trial court granted the request, and

dismissed the 1986 burglary strike as too remote in time. The court then proceeded to

sentence defendant to eight years in prison: Three years (the aggravated term) on count

1, doubled as a second strike to six years, plus one year consecutive for each of the prison

term priors. A three-year term on count 2 was to run concurrent with the term on count 1.



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       The People filed a timely notice of appeal from the order dismissing the 1986

strike prior.

                                        ANALYSIS

                                   I. Standard of Review

       In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California

Supreme Court held that a trial court’s decision, under Penal Code section 1385, to

dismiss or strike a sentencing allegation is discretionary, and is reviewable for abuse of

that discretion. (Id. at p. 531.) In People v. Carmony (2004) 33 Cal.4th 367, the

California Supreme Court held that the court’s decision not to dismiss or strike a

sentencing allegation is also subject to abuse-of-discretion review. (Id. at pp. 374-375.)

       “In reviewing for abuse of discretion, we are guided by two fundamental precepts.

First, ‘“[t]he burden is on the party attacking the sentence 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 on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely

because reasonable people might disagree. ‘An appellate tribunal is neither authorized

nor warranted in substituting its judgment for the judgment of the trial judge.’”’

[Citations.] Taken together, these precepts establish that a trial court does not abuse its

discretion unless its decision is so irrational or arbitrary that no reasonable person could

agree with it.” (People v. Carmony, supra, 33 Cal.4th 367, 376-377.)



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             II. The Trial Court Abused Its Discretion in Dismissing a Strike

       The record of the sentencing hearing makes clear that, in this case, the trial court

intended to sentence defendant to less than the maximum potential term of imprisonment.

There was some suggestion in the colloquy that defendant wanted to be returned to

prison, and that that desire accounted for some of his behavior. The court remarked that

defendant “has some motive that I am not clear about. I don’t think it is his mental

illness. It is his planning and intent for not registering. He is not a stupid man. He

knows what he was doing. He was told repeatedly what he was required to do, and he

deliberately refused to do it. It is not that he forgot or accidentally mislaid his

documents. He intentionally did not register, knowing the consequences, and I think

anticipating the consequences. [¶] Something about that prevents me from giving him

the maximum sentence because I think that’s what he wants. I am trying to look at some

way to come up with a . . . one strike allegation. I am not sure how I would do that.” The

court wanted to impose an eight-year prison term, and looked for some way to

accomplish that result. The court stated, “I think it is intentional. I don’t believe it is

aberrant behavior. He planned on doing it. I am not going to give him his wishes and

keep him in custody for the rest of his life. I think that is what he wants. I am not going

to burden the taxpayers with that at this point. [¶] That’s my approach. How I do that

and make it stick with the [Department of Corrections] is another thing.”

       Defense counsel proffered the prospect of striking the 1986 prior as “incredibly

remote,” and suggested that “the current conduct is de minim[i]s.” The prosecutor



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disagreed with the proposition that the 1986 strike conviction was remote. Defendant had

spent much of the intervening time in and out of custody, and was in custody again

within five years of the 1986 strike. The court said, “I agree, Counsel. I don’t disagree.

That is where I am having difficulty in justifying striking one of the priors. I don’t know

that I can do the 1986, strike that one. [¶] What about the second one, ‘94 was it?”

       The prosecutor observed that defendant had “spent 17 years in custody, committed

a crime while in prison on that, and that was what he got paroled for in 2011. I don’t

think that is very remote.” Again, the court agreed: “I don’t either. That is where I am

having trouble doing what I would like to do. Technically, I think the easiest way would

be to strike the 1986 [prior].”

       Despite having agreed with the prosecutor that the 1986 conviction was not too

remote in time, the court nevertheless proceeded to make a finding that the 1986

conviction was remote, and struck it pursuant to Penal Code section 1385. The court

imposed the eight-year sentence, as it had intended, sentencing defendant as a second

striker to a doubled aggravated term on count 1 (three years doubled to six) plus two one-

year enhancements for the prison term prior offenses.

       The Three Strikes law did not remove a sentencing court’s discretion to dismiss a

defendant’s prior strike or strikes to achieve a punishment in the furtherance of justice.

(People v. Superior Court (Romero), supra, 13 Cal.4th 497, 504.) However, as the

California Supreme Court stated in People v. Williams (1998) 17 Cal.4th 148, and People




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v. Carmony, supra, 33 Cal.4th 367, the court’s exercise of discretion is limited, and it is

to be guided by particular factors.

       In People v. Williams, supra, 17 Cal.4th 148 (Williams), the Supreme Court

explained that a sentencing court’s exercise of discretion to dismiss a prior strike should

be guided by the following standard: may the defendant, in light of his or her current

crime, and his or her criminal history, background, character, and prospects, be deemed

“outside the . . . spirit” of the Three Strikes law, in whole or in part, and, hence, be treated

as though he or she had not suffered the prior strike conviction. (Id. at p. 161.) When the

factors cited in Williams, supra, 17 Cal.4th 148 “manifestly support the striking of a prior

conviction and no reasonable minds could differ[,] the failure to strike would constitute

an abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th 367, 376–378.)

       Here, the relevant factors militate against dismissing a strike. The current crime

was not particularly heinous, but the offense was not a matter of mistake or excusable

neglect. Defendant knew he was required to register and deliberately chose not to

comply. Defendant’s character, background and prospects were not promising, and failed

to demonstrate that he fell outside the spirit of the Three Strikes law in any meaningful

way. No “extraordinary” circumstances existed to show that he should be treated

differently from other career criminals. (See People v. Carmony, supra, 33 Cal.4th 367,

378-379.) Rather, he was a fairly typical revolving door criminal, and indeed he seemed

intent on committing a new offense so he could return to custody. Instead of finding

defendant fell within the spirit and intent of the Three Strikes law, which plainly restricts



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a trial court’s sentencing discretion with respect to recidivist offenders, the trial court

somewhat perversely found that defendant’s deliberate desire to be a recidivist should

take him outside the recidivist punishment scheme. This seems to be a case in which the

trial court determined what punishment it wished to impose, and set about to rationalize

that result, rather than considering the appropriate factors in determining whether to

exercise its admittedly limited discretion to dismiss a strike prior.

       Accordingly, we agree with the People that the trial court here abused its

discretion in dismissing one of defendant’s strike priors, which the court had earlier

agreed was not remote, on the basis of its supposed remoteness. The order dismissing a

strike should be reversed, and the matter remanded for resentencing.

                                       DISPOSITION

       The trial court’s order dismissing defendant’s 1986 strike prior was an abuse of

discretion. That ruling must be reversed and the sentence vacated. The matter is

remanded for resentencing in accordance with this opinion.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  McKINSTER
                                                                                   Acting P. J.
We concur:


KING
                           J.


MILLER
                           J.



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