Filed 12/31/15 P. v. Gallagher CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143732
v.
SHANE GALLAGHER,                                                     (Contra Costa County
                                                                     Super. Ct. No. 051316694)
         Defendant and Appellant.


         Shane Gallagher (appellant) appeals from a judgment entered after a jury found
him guilty of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and
the trial court found true allegations that he had suffered a prior serious felony conviction
(Pen. Code, §§ 667/1170.121) and had served two prior prison terms (§ 667.5, subd. (b)).
The court sentenced him to five years in state prison, and appellant timely appealed. He
contends the court abused its discretion in: (1) denying his request to have his conviction
reduced to a misdemeanor; and (2) denying his motion to strike his prior strike conviction
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero motion). We
reject the contentions and affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         On August 12, 2013, an information was filed charging appellant with unlawfully
driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count 1). The information
also alleged he had previously been convicted of a serious felony (§§ 667/1170.12) and


         1
             All subsequent statutory references are to the Penal Code unless otherwise stated.


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had served two prior prison terms (§ 667.5, subd. (b)). Appellant moved to suppress
evidence, and the trial court denied the motion. A jury found appellant guilty of count 1,
and the court found true the prior allegations. Thereafter, appellant filed a Romero
motion. The court denied the motion and sentenced appellant to a total term of five
years in state prison.
       The information was based on an incident that occurred on September 12, 2012.
At approximately 6:00 p.m. that evening, Oakland Housing Officer Tommy Calvin
arrived at work and parked his green 1992 Honda vehicle in front of 2555 International
Boulevard in Oakland. He put up all of the windows, turned off the car, and locked the
doors. He was the only person who had keys to the car. At approximately 11:00 p.m.,
while doing his rounds, Calvin saw that his car was still parked where he had left it. A
half hour to an hour later, he noticed his car was no longer there. He called the Oakland
Police Department to report his car as stolen.
       At approximately 12:41 a.m., Danville Police Officer Carlos Dazhan conducted a
traffic stop of a green 1992 Honda Accord in the city of Alamo in Contra Costa County,
about 20 miles away from Oakland. A man, later identified as appellant, was the driver
and sole occupant of the car. Dazhan asked appellant if the car was his; appellant
responded that it was not, and that he did not know who the owner was. Dazhan asked
appellant to turn off the car, but appellant said he could not because he did not have the
keys. Dazhan asked appellant why he had the car if it was not his. Appellant responded
that “he was coming from his son’s house” at 25th Avenue and International Boulevard.
He said that when he did not find his son at home, he walked to a liquor store. As he was
walking away from the store, he was attacked by an unknown group of six to eight males,
one of whom stabbed him in the upper left shoulder. The others punched him all over,
and he sustained an injury to his head. Appellant told Dazhan that he fought the men off,
grabbed his belongings, and ran away, when he saw the Honda in the middle of the street,
unlocked, unoccupied, and turned on and running. Appellant said he got into the Honda,
put his belongings in the car, and drove away in order to protect himself. Dazhan



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observed blood on appellant’s head and pants. He did not observe any evidence of
punches, such as bruising.
       Dazhan searched appellant and found a shaved key in his right pants pocket.
Dazhan testified that it was the type of key specifically created so that it could be used to
fit into a variety of vehicles. Dazhan learned at the police academy that such keys are
“considered burglary tools.” He had found shaved keys in other auto theft cases, and jail
inmates told him they used shaved keys to access vehicles. Appellant claimed that the
shaved key was not his and that he did not know how it got in his pocket.
       At approximately 1:00 a.m., Calvin was brought to Danville to identify and
retrieve his car. He noticed there were bags and other items in the car that did not belong
to him, and that his middle console had been searched. Calvin threw all of the items that
did not belong to him into nearby garbage cans. Calvin also noticed that his ignition
“was a little damaged,” making it difficult for him to put his key into the ignition. Calvin
had never seen the shaved key that was found in appellant’s pocket.
       Appellant took the stand and testified that on September 12, 2012, he went to 25th
Avenue and International Boulevard to make sure his then-20-year-old son was living in
a safe place. After realizing that his son was not home, appellant went to a nearby liquor
store to get something to drink. After he left the store, some unknown men attacked
him, stabbing him in the arm and punching him in the head. As he ran away, he saw a
car “on the side of the road parked and the door ajar.” He got into the car and drove
away because he was scared. He wanted to go to a hospital and drove towards Walnut
Creek, where he lives. Appellant did not remember whether there had been a key in the
ignition of the car when he first found it, but he believed the shaved key found in his
pocket “came from the car.” He had never seen the key before. Dazhan pulled him over,
then took him to a nearby hospital, where he received 8 to 12 staples in his head and four
staples in his arm.




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                                        DISCUSSION
                                       Misdemeanor
       Appellant contends the trial court abused its discretion in denying his request to
have his conviction reduced to a misdemeanor. We disagree.
       Auto theft is a so-called “wobbler” offense that the court has discretion to treat as
either a felony or a misdemeanor. (§§ 17, 496, subd. (a); Veh. Code, § 10851, subd. (a).)
Section 17, subdivision (b), “[b]y its terms, . . . sets a broad generic standard” that allows
a sentencing court to reduce a felony conviction for a wobbler to a misdemeanor “solely
‘in the discretion of the court.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977.) Relevant factors for the court to consider in exercising its discretion include:
the nature and circumstances of the offense; the defendant’s appreciation of and attitude
toward the offense; and his traits of character as evidenced by his behavior and demeanor
at trial. When appropriate, the court should also consider the general objectives of
sentencing and the protection of society. (Id. at pp. 978–979.)
       On appeal, it is appellant’s burden “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.” (People v.
Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977–978.)
       Appellant argues the trial court abused its discretion because the offense was “no
worse than the ordinary vehicle theft.” However, there was evidence that he used a
shaved key—a burglary tool commonly used to steal vehicles—which indicated there
was at least some “planning, sophistication, or professionalism” in the way in which he
committed the offense. (Cal. Rules of Court, rule 4.421(a)(8).) The crime also involved
the taking of an item of great monetary value.2 (Cal. Rules of Court, rule 4.421(a)(9).)


       2
         Appellant asserts the vehicle was not of great value and has filed a request for
judicial notice of Kelley Blue Book online printouts showing a range of estimated values
for a 1992 Honda Accord. The documents do not appear to have been presented to the
trial court, and appear to reflect the estimated values of a 1992 Honda Accord as of April

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Moreover, appellant had multiple prior convictions (Cal. Rules of Court,
rule 4.421(b)(2)) and had served a prior prison term (Cal. Rules of Court,
rule 4.421(b)(3)). He had been paroled for only four days at the time he committed the
instant offense (Cal. Rules of Court, rule 4.421(b)(4)), and his prior performance on
probation or parole has been unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)). He
argues the evidence shows that the taking of the car was likely “precipitated by something
other than the desire to obtain its possession”; however, the jury presumably discredited
his testimony that he took the car out of necessity.
        The record shows the trial court understood its discretion and weighed the relevant
factors before it. Both parties filed sentencing memoranda, and at sentencing, the court
stated it had read and considered the probation report, the prosecution’s sentencing
memorandum, and appellant’s statement in mitigation. In imposing its sentence, the
court stated: “[T]here are certain factors related to the crime as set forth in the probation
report on page 25, indicating that the manner in which the crime was carried out indicates
a planning or sophistication or professionalism, and the crime involved attempted or
actual taking or damage of great monetary value. Also, the factors related to the
Defendant that prior convictions are numerous or of increasing seriousness, Defendant
has served a prior prison term, the defendant was on probation or parole when the crime
was committed, the Defendant’s prior performance on probation or parole was
unsatisfactory. There are no factors in mitigation pursuant to Rule 4.423.” “Nothing
about the court’s state[ments] . . . indicate its decision was irrational or arbitrary, and
[appellant] has not clearly shown to the contrary.” (People v. Sy (2014) 223 Cal.App.4th




and May of 2015—over two and a half years after the date of the offense. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [in the absence
of a showing of exceptional circumstances, reviewing courts do not take judicial notice of
evidence that was not before the trial court at the time that it made the ruling challenged
on appeal]; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578 [items may not
be judicially noticed if they are not relevant].) We therefore deny the request for judicial
notice.


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44, 66.) Appellant has failed to show the court abused its discretion in denying his
request.
                                         Prior Strike
       Appellant contends the trial court abused its discretion in denying his Romero
motion. We disagree.
       Under section 1385, subdivision (a), a judge “may, either of his or her own motion
or upon the application of the prosecuting attorney, and in furtherance of justice, order an
action to be dismissed.” Romeo held that “a trial court may strike or vacate an allegation
or finding under the Three Strikes law that a defendant has previously been convicted of
a serious and/or violent felony, on its own motion, ‘in furtherance of justice’ pursuant to
. . . section 1385[, subdivision] (a).” (People v. Williams (1998) 17 Cal.4th 148, 158.)
The question when reviewing a court’s denial of a Romero motion is 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 schemes 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; People v. Garcia (1999) 20 Cal.4th 490, 503.)
       A trial court’s refusal 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.)
The striking of a prior serious felony conviction is not a routine exercise of sentencing
discretion. It is an extraordinary exercise of discretion to determine that a defendant who
falls within the letter of the Three Strikes law should be treated as if he has no prior
convictions because, for certain reasons, he is deemed to be outside the spirit of the law.
(People v. Strong (2001) 87 Cal.App.4th 328, 332.)
       Appellant argues the trial court should have granted his Romero motion because
his present felony was “minor.” However, as noted, appellant was found in a stolen
vehicle in possession of a shaved key, a common burglary tool. He denied having ever


                                               6
seen the key but his testimony regarding the key, and about the condition in which he
found the vehicle—running, unlocked, with the door ajar and unoccupied—lacked
credibility and was contravened by the facts of the case. Moreover, even if the vehicle
theft can be characterized as “minor,” this did not reduce the appropriateness of applying
the Three Strikes scheme to his case. “By its very terms, any felony triggers a longer
sentence under the Three Strikes law as long as the defendant has sustained at least one
strike. Since the express intent of the Three Strikes law is ‘to ensure longer prison
sentences’ for any defendant who has a qualifying strike and subsequently commits ‘a
felony,’ the nonviolent or nonthreatening nature of the felony cannot alone take the
crime outside the spirit of the law.” (People v. Strong, supra, 87 Cal.App.4th at p. 344.)
Indeed, it may be an abuse of discretion for a trial court to find that a defendant does not
fit within the spirit of the Three Strikes law simply because it deems the current offense
to be “relatively minor.” (People v. Carter (1996) 49 Cal.App.4th 567, 573–574.)
       As the trial court noted, appellant’s “prior convictions are numerous or of
increasing seriousness.” The probation report noted that since 1988, appellant had been
convicted of “theft, burglary, felony possessing firearm, obstructing/resisting a peace
officer, burglary, vehicle theft, and battery with injury upon peace officer.” While in
custody between 2013 and 2014, he was “involved in at least twenty incidents involving
several rule violations including threats to staff, officer safety, fashioning numerous
weapons, concealing contraband, assaultive behavior, and bizarre behavior.” He
collected materials to make weapons “to use against deputies if he needed to defend
himself.” He verbally assaulted deputies when they asked him routine questions about
his day and threatened to beat them up or set them on fire. He was ultimately “deemed
a direct threat to the safety and security of staff and the facility,” and was ankle
shackled for protection of other members of the facility. Appellant “gassed another
inmate with what was believed to be a mixture of semen and urine.” He secreted or
constructed shanks, a spear, a metal pipe, and numerous other weapons. Most recently,
the Federal Bureau of Investigations informed the probation officer that a federal
warrant had been issued for appellant for being a felon in possession of a firearm. As


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the prosecutor stressed at the sentencing hearing, appellant committed the present crime
only four days after his discharge from the Department of Corrections. Given “the
nature and circumstances of [appellant’s] present felon[y] and prior serious and/or violent
felony conviction,” as well as “the particulars of his background, character, and
prospects,” (People v. Williams, supra, 17 Cal.4th at p. 161), the court did not abuse its
discretion in refusing to strike the prior conviction.
                                        DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




A143732




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