Filed 10/7/13 P. v. Stark CA5



                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                          FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063991
         Plaintiff and Respondent,
                                                                          (Kings Super. Ct. No. 11CM1941)
                   v.

ARDEN EARL STARK III,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos,
Judge.
         Emry J. Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S.
Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                           -ooOoo-
                                                   INTRODUCTION
         Appellant/defendant Arden Earl Stark III was charged with several offenses based on
an incident when he violated a temporary restraining order and threatened to kill his wife.
After a jury trial, he was convicted of count I, first degree burglary (Pen. Code,1 § 459, subd.

         1   All further statutory citations are to the Penal Code unless otherwise indicated.
(b)(1)); count II, criminal threats (§ 422); count III, dissuading a witness with threats of
violence (§ 136.1, subd. (c)(1)); and count IV, misdemeanor violation of a court order
(§ 273.6, subd. (a)). He admitted three prior strike convictions and was sentenced to the third
strike term of 25 years to life.
       On appeal, defendant contends his conviction for burglary is not supported by
substantial evidence, and the court should have granted his request to dismiss one or more of
his prior strike convictions. In addition, the People concede that a concurrent term should be
stayed, and the abstract of judgment must be modified. We will order the abstract of
judgment modified and otherwise affirm.
                                             FACTS
       As of 2011, defendant and his wife, A.S., had been married for five years and had a
young child. The family lived in a house with a roommate.
       On or about May 11, 2011, A.S. asked defendant to leave the house.
       Shortly thereafter, A.S. applied for a temporary restraining order against defendant; to
stay 100 yards away from A.S. and their child, their residence, and their vehicle; not to
contact them, directly or indirectly, and not to harass, threaten, block their movements, or
stalk them; and to move out of the family residence. On May 20, 2011, a judicial officer
signed the order, and the order was filed. The court ordered defendant not to have any child
visitation.
       On or about June 3, 2011, defendant was served with the order by the husband of
A.S.‟s roommate, and the proof of service was filed on that date. The temporary restraining
order advised defendant that it would expire at 8:30 a.m. on June 13, 2011, at which time a
hearing was scheduled to be held on the matter.
       After defendant was served with the restraining order, A.S. did not have any direct
contact with him. A.S.‟s roommate communicated with defendant about visiting their child,
and why A.S. made him leave.



                                                2.
Defendant confronts A.S. in the bedroom
       At 2:30 a.m. on June 11, 2011, A.S. and her child were asleep in the bedroom of the
house where they had lived with defendant. A.S. testified that all the doors were locked,
except the door between the bathroom and the laundry room, which could not be locked.
A.S. had the only set of keys to the house, and defendant did not have any keys even when he
lived there.
       A.S. testified that she woke up when she felt someone grab her ankle. She was startled
and sat up quickly, and realized defendant was in her bedroom. A.S. told defendant he was
not supposed to be there because of the restraining order and asked what he wanted.
Defendant said he did not care, and he wanted to talk to her.
       A.S. testified that defendant was upset and “pretty angry.” Defendant said he wanted
to know why she filed the restraining order and made him leave the house. Defendant said he
loved her and their child, and he missed them. A.S. told defendant she was not ready to talk,
and she did not want to talk to him.
       A.S. testified she got out of bed, but she did not immediately try to walk out of her
bedroom because she was afraid defendant would stop her. Defendant said he did not want
her to leave. Defendant again said he wanted to talk “about why I did what I did.” A.S. again
said she was not ready to talk to him. Defendant was upset and felt he did not do anything
wrong.
Defendant threatens A.S.
       A.S. told defendant she was going to call the police. Defendant became more upset.
Defendant told A.S. that “if I was going to call the police, which he knew I was going to do,
that he was going to kill me and him because he wanted to be with me no matter what.”
       A.S. walked toward the bedroom doorway. Defendant was standing near the doorway
and stepped sideways toward it. A.S. thought defendant was angry and really upset. A.S.
walked around defendant and headed toward her roommate‟s bedroom. Defendant put out his
hand and tried to stop her, but he did not touch her.

                                               3.
       Defendant said he still loved her, and then he quickly left the house through the front
door. A.S. woke up her roommate and called the police. A.S. testified the entire incident
lasted 5 to 10 minutes.
       A.S. testified that as a result of defendant‟s threats, she became scared and remained
so for the rest of that night. A.S. testified defendant had never threatened to kill her during
their most recent arguments. A.S. believed defendant was capable of killing her and himself.
A.S. testified she was frightened because defendant had attempted to kill her in the past.
About two years before the current incident, defendant tried to suffocate and strangle her.
She never reported these incidents to the police.
                                         DISCUSSION
I.     Substantial evidence of burglary
       Defendant contends his conviction for burglary must be reversed because there is no
evidence he intended to commit any felony at the time he entered the residence. Defendant
asserts that while he may have threatened to kill A.S., his intent to commit that act did not
arise until after he entered the residence, when A.S. said she was going to call the police.
Defendant thus asserts that he did not have any intent to threaten A.S. when he entered the
house because he was not “clairvoyant” and could not have known that she would have
threatened to call the police.
       A. Substantial evidence
       “In assessing the sufficiency of the evidence, we review the entire record in the light
most favorable to the judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it
appears „that upon no hypothesis whatever is there sufficient substantial evidence to support
[the conviction].‟ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       “The standard of review is the same in cases in which the People rely mainly on
circumstantial evidence. [Citation.] „Although it is the duty of the jury to acquit a defendant

                                                4.
if it finds that circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the appellate court which
must be convinced of the defendant‟s guilt beyond a reasonable doubt. “ „If the
circumstances reasonably justify the trier of fact‟s findings, the opinion of the reviewing court
that the circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.‟ ” [Citations.]‟ [Citation.]” (People v. Stanley (1995) 10
Cal.4th 764, 792-793.)
         B. Burglary
         Burglary involves the act of unlawful entry into a house or other specific structure,
accompanied by the specific intent to commit grand or petit larceny or any felony. (§ 459;
People v. Montoya (1994) 7 Cal.4th 1027, 1041.) One may be liable for burglary upon entry
with the requisite intent, regardless of whether the felony or theft actually committed is
different from that originally contemplated, or whether any felony or theft actually is
committed. (People v. Montoya, supra, 7 Cal.4th at pp. 1041-1042.)
         In order to constitute burglary, the defendant must intend to commit the felony at the
time of entry. (People v. Holt (1997) 15 Cal.4th 619, 699.) “Because intent is rarely
susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed
by the evidence. [Citations.] Whether the entry was accompanied by the requisite intent is a
question of fact for the jury. [Citation.]” (People v. Kwok (1998) 63 Cal.App.4th 1236,
1245.)
         “Where the facts and circumstances of a particular case and the conduct of the
defendant reasonably indicate his purpose in entering the premises is to commit larceny or
any felony, the conviction may not be disturbed on appeal [Citations.]” (People v. Nunley
(1985) 168 Cal.App.3d 225, 232; People v. Kwok, supra, 63 Cal.App.4th at p. 1245.)
         C. Analysis
         There is substantial evidence that defendant committed the burglary with the intent to
commit a felony therein. A few weeks earlier, A.S. told him to move out of the house, and

                                                 5.
she obtained the temporary restraining order. A.S.‟s roommate served defendant with the
restraining order on or about June 3, 2011. Thereafter, A.S. did not have any direct contact
with defendant. Instead, her roommate communicated with defendant about visiting their
child, and why A.S. made him leave.
       The temporary restraining order advised defendant that the court would conduct a
hearing on June 13, 2011, about whether to continue that order. Two days before that
scheduled hearing, defendant violated that restraining order when he entered the house and
went into the bedroom where his wife and child were sleeping.
       Defendant concedes that he entered the residence “with the intent” to discuss the
temporary restraining order with A.S., and “probably intended to find out if she intended to
appear at and testify at the hearing …, and [he] probably hoped that she did not intend to do
so.” Defendant also concedes he “probably did intend to attempt to convince her not to
testify at the hearing,” if she told him that she was going to do so. However, defendant
asserts there is no evidence that when he entered the house, he already had the intent to
dissuade her from testifying, because his conduct was necessarily dependent on A.S.‟s
responses to his questions about what she intended to do. Defendant thus places the blame
for this incident on A.S., because “the bare fact” that a hearing had been set “cannot be
deemed substantial evidence that [defendant] had any information, or knowledge, of [A.S.‟s]
intentions,” and if A.S. did not intend to go forward with the temporary restraining order, he
would not have intended to commit the offense of dissuading a witness.
       Defendant‟s arguments are specious and refuted by the record. Contrary to
defendant‟s suppositions, the evidence demonstrates that he did not enter that bedroom to
gently wake up his wife, tell his wife and child that he loved and missed them, or check on
their well being. Instead, he arrived at 2:30 a.m., surreptitiously gained entry into the house,
and woke up A.S. by grabbing her ankle. He was upset and angry, and demanded to know
why she made him move out and why she obtained the temporary restraining order. He stood
near the door so that she felt she could not walk out of the room. A.S. repeatedly said that he

                                               6.
had to leave and she was not ready to talk to him. Defendant was undeterred and threatened
to kill her and then kill himself “because he wanted to be with me no matter what.”
       The circumstantial evidence thus establishes that defendant entered the house and his
wife‟s bedroom with the intent to commit the felonious offenses of criminal threats and
dissuading a witness from testifying. His conduct was not triggered by A.S.‟s entirely
reasonable reaction of wanting to call the police. Instead, defendant knew the hearing on the
restraining order was going to be held in two days, he displayed his anger and hostility
toward A.S., and he used the threat of a homicide/suicide in an attempt to dissuade her from
pursuing the court order and taking any action to keep him out of the house. Emotions related
to dissension among marital partners involved in dissolution proceedings or restraining orders
sometimes result in ill-conceived acts by parties who resist the reality of the situation. In
evaluating the evidence before it, the jury concluded defendant‟s reaction was not a common
reaction by an upset spouse, but instead a serious criminal act accompanied by the requisite
mens rea. Defendant‟s conviction for burglary is supported by substantial evidence.
II.    Denial of defendant’s request to dismiss the prior strike convictions
       Defendant next contends the court abused its discretion when it denied his request to
dismiss one or more of his three prior strike convictions pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero).
       A.     Section 1385 and Romero
       Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the
dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at
pp. 529-530.) In deciding whether to dismiss a prior strike conviction, 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.)

                                                7.
        The trial court‟s decision not to dismiss a prior strike conviction is reviewed under the
deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 371
(Carmony).) An abuse of discretion is established by demonstrating the trial court‟s decision
is “irrational or arbitrary. It is not enough to show that reasonable people might disagree
about whether to strike one or more of his prior convictions.” (People v. Myers (1999) 69
Cal.App.4th 305, 310.) When the record shows the trial court considered relevant factors and
acted to achieve legitimate sentencing objectives, the court‟s decision will not be disturbed on
appeal. (Ibid.)
        B.     Defendant’s record
        According to the probation report, defendant (born 1972) was convicted of
misdemeanor theft (§ 484) in Sacramento in 1991 and sentenced to three days in jail. In April
1991, he was placed on five years of formal probation after being convicted of second degree
burglary in Sacramento. In November 1992, defendant was placed on three years of
probation for his conviction of misdemeanor burglary in Fairfield.
        In 1995, defendant was sentenced to 10 years in state prison for the convictions in
Sacramento which constituted the three prior strikes in this case: rape by force or fear (§ 261,
subd. (a)(2)); forcible sexual penetration with a foreign object (§ 289, subd. (a)); and arson
(§ 451, subd. (d)). He was also convicted of second degree burglary in the same case.
        In July 2004, defendant was released on parole, and he was discharged from parole in
2007.
        In January 2009, defendant was placed on five years of probation in Kern County for
misdemeanor driving with a blood-alcohol level over 0.08 percent. (Veh. Code, § 23152,
subd. (b).) However, he was repeatedly found in violation of probation as he committed
subsequent offenses. In October 2009, defendant was fined for the infraction of driving on a
suspended license. (Veh. Code, § 14601.1, subd. (a)).
        In April 2010, defendant was placed on three years of probation for misdemeanor
driving under the influence of a controlled substance and was allowed to enter a drug

                                                8.
treatment program (Health & Saf. Code, § 11550, subd. (a)). In April 2011, he was placed on
three years of formal probation for misdemeanor driving on a suspended license. (Veh. Code,
§ 14601.2, subd. (a).)
         Defendant was on probation when he committed the instant offenses. Defendant had
been employed as a mechanic but he was suspended after his 2008 conviction for driving
under the influence. Defendant said he was using marijuana and methamphetamine on a
daily basis when he was arrested in this case. Defendant also said he suffered from
depression and received medication while in prison.
         C.     The sentencing hearing
         In the instant case, the amended information alleged that defendant had three prior
strike convictions from 1995, based on the three offenses in Sacramento: rape by force or
fear, forcible penetration with a foreign object, and arson. Defendant admitted the three prior
strike convictions.
         At the sentencing hearing, the court stated its intent to impose indeterminate third
strike terms. The court noted that defendant‟s three prior strike convictions were from a
single case, but all of the prior convictions were “of such significance so that the Court does
not believe it should exercise its discretion in striking any of those particular strikes in this
case.”
         Defense counsel asked the court to dismiss one or more of the three prior strike
convictions pursuant to Romero. Defense counsel conceded the three prior strike convictions
did not “paint a really pretty picture” of defendant. However, defense counsel argued the
three convictions should be treated as one strike because the offenses were committed at the
same time and in the same course of events.
         Defense counsel also conceded the convictions in this case “paints a pretty horrific
picture potentially,” but argued defendant just wanted to talk to his wife while he was under
emotional distress because of the failure of his marriage.



                                                 9.
       The prosecutor replied that defendant‟s prior strike convictions in Sacramento were
based on an incident where he broke “into a home of a wom[a]n he did not know, raping her,
then setting her house on fire .…” The prosecutor argued defendant was a threat to society
and to A.S., and his threat to kill her and then himself if she refused to dismiss the restraining
order was very disturbing.
       The court denied defendant‟s request to dismiss the prior convictions.

       “[W]ith respect to the exercise of its discretion, the Court was looking at the
       defendant‟s record, but, again, I have no other evidence other than the record to
       show me that the defendant was charged with sexual penetration with a foreign
       object,… rape by force, fear …, and arson …, and it all occurred at the same
       date and time.

              “The defendant did receive ten years state prison commitment in this
       matter, and so consequently when counsel argues that this happened 17 years
       ago, you have to take into consideration that a portion of that time, if not half,
       pretty much at least half of that time was spent in prison.

              “With respect to the remaining, shall I say time, defendant still shows
       that he is or still willing to go outside the law, use drugs as shown by his 2010
       conviction for [section] 11550 of the Health and Safety Code.

               “In addition, what should be looked at here is the Court had issued a
       restraining order, even though it might have been temporary, and the defendant
       still chose to ignore it and come into his home.

               “In the defendant‟s own letter to the Court, he seems not able to
       understand the fact that society has certain laws and rules that you have to abide
       by. He still wants to say that he‟s – he doesn‟t believe that, and I quote „for
       breaking into my own house and trying to talk to my wife‟ and violating a
       restraining order he should get a life sentence.

               “He doesn‟t understand that. Well, the situation is that is concerning.
       That is a statement that concerns the Court because you have to follow the
       Court‟s orders. To say you don‟t understand what that means is, and in reading
       this letter is tantamount to saying, „look, I‟ll determine what‟s important and
       what‟s not important.‟ And that‟s what concerns me.

              “So in this regard, the Three Strikes Law takes into consideration, I
       believe, People like [defendant] in this matter. People who don‟t follow the



                                               10.
       law. People who are violent, and in this case we have almost a similar situation
       from the 1995 situation.

              “This person actually breaks into … a house at night and scares the
       living day lights out of … [A.S.] and then threatens her with statements that
       maybe he didn‟t mean what he said, but, you know, when it‟s in the middle of
       the night, somebody‟s at the foot of your bed grabbing your foot and then not
       allowing you to leave through intimidation, maybe not necessarily grabbing
       somebody but through bodily intimidation, that is scary.

              “So for that regard, the Court [chooses] not to exercise its discretion
       under [section] 1385 nor under Romero .…”
       The court sentenced defendant to 25 years to life for count I, burglary.
       D.     Analysis
       As explained, ante, we review a ruling upon a request to strike a prior felony
conviction under a deferential abuse of discretion standard. (Carmony, supra, 33 Cal.4th at
p. 371.) “[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.)

       “For example, an abuse of discretion occurs where the trial court was not
       „aware of its discretion‟ to dismiss [citation], or where the court considered
       impermissible factors in declining to dismiss [citation]. Moreover, „the
       sentencing norms [established by the Three Strikes law may, as a matter of
       law,] produce[] an “arbitrary, capricious or patently absurd” result‟ under the
       specific facts of a particular case. [Citation.]

               “But „[i]t is not enough to show that reasonable people might disagree
       about whether to strike one or more‟ prior conviction allegations. [Citation.]
       Where the record is silent [citation], 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‟ [citation]. 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. Of course, in such an extraordinary case – where the relevant
       factors … manifestly support the striking of a prior conviction and no


                                                11.
        reasonable minds could differ – the failure to strike would constitute an abuse
        of discretion.” (Carmony, supra, 33 Cal.4th at p. 378, italics added.)
        Defendant contends he falls outside the spirit of the Three Strikes law because his
prior strikes were from a single case, there is no evidence on an ongoing pattern of criminal
conduct, the prior convictions were remote in time since they occurred in 1995, and his
subsequent criminal conduct was limited to petty drug offenses. Defendant further asserts his
history of untreated mental health problems and drug addictions also weigh in favor of
dismissing the prior strike convictions.
        Defendant‟s arguments are meritless. The instant case is not the type of extraordinary
one contemplated by Carmony. The trial court herein carefully considered the enumerated
factors and reasonably concluded defendant could not be deemed outside the spirit of the
Three Strikes law, based on the nature of his criminal activity in both the prior strike
convictions and the instant matter. In addition, defendant‟s criminal record began before the
prior strike convictions, and continued after he was discharged on parole. Finally, the mere
fact that defendant‟s three prior strike convictions arose from a single criminal action does
not mean the court abused its discretion by declining to dismiss one or more. (See, e.g.,
People v. Benson (1998) 18 Cal.4th 24, 35-36; People v. Scott (2009) 179 Cal.App.4th 920,
930.)
        On this record, the court‟s decision was “neither irrational nor arbitrary and [did] not
constitute an abuse of its discretion.” (Carmony, supra, 33 Cal.4th at p. 379.) Rather, since
“the record demonstrates that the trial court balanced the relevant facts and reached an
impartial decision in conformity with the spirit of the [Three Strikes] law,” we must affirm its
decision. (People v. Myers, supra, 69 Cal.App.4th at p. 310; Carmony, supra, 33 Cal.4th at
p. 378.)
III.    The third strike term for count II
        The court imposed the third strike terms of 25 years to life for count I, burglary; count
II, criminal threats; and count III, dissuading a witness. The court ordered the term for count
II to run concurrent to count I, and stayed the term for count III pursuant to section 654.

                                                12.
       Defendant contends, and the People concede, that the third strike term for count II
should also have been stayed pursuant to section 654, instead of run concurrently to count I.2
IV.    Presentence Credit
       Defendant contends, and the People concede, that he is entitled to one additional day
of presentence conduct credit.
                                       DISPOSITION
       The case is remanded to the superior court to amend the abstract of judgment to stay
the term imposed for court II; and to state that defendant‟s presentence credits are 26 days
instead of 25 days. The superior court is directed to forward a copy of the amended abstract
of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.



                                                               _________________________
                                                               Poochigian, Acting P.J.
WE CONCUR:


______________________
Franson, J.


______________________
Peña, J.




       2 Given the People‟s concession on section 654, we need not reach defendant‟s
alternative argument about count II.


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