Filed 7/22/16 P. v. Goodlow CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




THE PEOPLE,                                                                   B265948

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. BA422433)
          v.

IVAN GOODLOW,

          Defendant and Appellant.


          APPEAL from an order of the Superior Court of Los Angeles County,
William N. Sterling, Judge. Affirmed.
          Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters,
Assistant Attorneys General, Michael C. Keller and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
                                    ___________________________________
       Defendant Ivan Goodlow appeals from a 2015 judgment of conviction for second-
degree robbery. (Pen. Code, § 211.)1 He challenges the court’s refusal to dismiss his
1999 prior strike conviction pursuant to section 1385. We affirm the judgment.


                      FACTUAL AND PROCEDURAL SUMMARY
       In March 2014, defendant entered a Little Caesars Pizza restaurant and asked the
cashier if she could give him change for the bus. The cashier told defendant she could
not open the register unless he made a purchase. Defendant then asked for a soda. He
gave the cashier money for the soda, and she opened the register. Defendant then said,
“Give me the money,” and jumped toward the register. The cashier was afraid and ran to
the back of the store for her safety.2 She testified at trial that she was not touched by
defendant and did not see him display a weapon. A witness who lived in a nearby
apartment saw the defendant jump over a fence and run towards an apartment, where he
sat down next to a planter and took money out of his pockets. Police found him in a
nearby apartment complex in a “trash” room. In total, $70.38 was taken from the
restaurant register. Defendant had about two dollars in change in his pockets, and six
dollars was found on the floor where he was laying down. About 45 minutes after the
robbery, the cashier identified defendant as the robber.
       The jury found defendant guilty of second-degree robbery (§ 211). Following the
verdict, the court granted the prosecutor’s motion to allege prior convictions for first-
degree robbery in 2003 (§ 211), and first-degree burglary in 1999 (§ 459). Each was
charged as a prior strike pursuant to sections 667, subdivision (b) through (i) and
1170.12. Defendant waived a jury with regard to these charges. At a bench trial, the
prosecution produced evidence of the 1999 and 2003 convictions. The court found the
prior conviction allegations to be true. The court also found true the allegation that



       1
           Statutory references are to the Penal Code unless otherwise indicated.
       2
           At trial, surveillance footage of the robbery was played for the jury.
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defendant had served three prior prison terms within the meaning of section 667,
subdivision (a)(1).
       Subsequently, defendant moved to strike a prior conviction under Romero.3 The
court indicated that it was inclined to strike one of defendant’s strikes. However, after
the prosecutor elaborated on defendant’s 2003 first-degree robbery conviction, the court
requested a sentencing memorandum and continued the matter.
       The prosecution submitted a sentencing memorandum in which it urged the court
to sentence defendant to the maximum permissible confinement time, 36 years to life in
state prison. The memorandum stressed defendant’s criminal history, noting that
defendant had been convicted of vehicle theft (Veh. Code, § 10851, subd. (a)) in 1995
and 1998, first-degree burglary (§ 459) in 1999, possessing a dangerous weapon
(§ 12020, now 21310) in 2002, first-degree robbery (§ 211) in 2003, and, most recently,
of two counts of vandalism (§ 594, subd. (a)). The prosecutor argued that defendant was
ineligible for probation under section 667, subdivision (a)(1). The memorandum also
pointed out that the present offense was committed while defendant was on probation
supervision, and that the issuance of probationary grants and state prison commitments
had not deterred defendant’s behavior. It argued that defendant presented a threat to the
property and safety of others.
       Defendant filed a sentencing memorandum. In it, he argued that a sentence of 36
years to life for his conviction would constitute cruel and unusual punishment in violation
of the Eighth Amendment. He also argued that the prosecution’s sentencing
memorandum failed to adequately or accurately address the aggravating and mitigating
circumstances in this case.
       As to the Romero motion, defendant argued that his background included a
childhood fraught with extensive physical and emotional trauma, that he was born with
crack cocaine in his system, and that he was removed from the care of his biological
parents when he was about two years old due to their continuous drug and physical abuse.


       3
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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He also said that his mother abused crack cocaine and alcohol at home and that he would
take his sister to the park for her safety. At 14, defendant was the victim of sexual assault
by an elder, which he never reported. He also claimed that his background included
many years of untreated psychological and psychiatric issues along with a history of
Post-Traumatic Stress Disorder, and that his future prospects included the possibility of a
family support system, a job, appropriate mental health treatment and a law-abiding
lifestyle.
        The memorandum also argued that the nature of his prior strikes placed him
outside the spirit of the Three Strikes law because the 2003 robbery conviction “involved
no great violence, great bodily harm, actual use of a weapon or showing of great
viciousness,” and that his first-degree residential burglary conviction in 1999 should have
been dismissed because he was 16 when he committed the offense, and it was a
nonviolent strike.
        The court denied defendant’s motion. In reaching its conclusion, it recognized
that the sentence would still be long even if one of the prior strikes was stricken, and
considered defendant’s life story, emotional problems, and intelligence.
        Given defendant’s behavior, the court concluded “he will continue to commit
crime based on his history, the fact that he’s already had a Romero motion granted, that
he got out after a nine-year sentence and committed vandalism and was convicted and,
you know, was put on probation, got out, and committed this offense, it strikes me that he
will commit crimes of opportunity as a necessity as he feels is appropriate.” The court
summarized: “The whole point of the Three Strikes law is to protect the public. And I
just don’t think it’s justifiable [to grant the Romero motion] given the entirety of his
history, the horrendous nature of his prior—prior robbery conviction, the fact that he’s
already had a Romero motion granted, [and that this is his] second offense after being
released from prison on the robbery.”
        Defendant was sentenced to a term of 25 years to life for the robbery, and two
five-year terms pursuant to section 667, subdivision (a). The court struck defendant’s


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three prison priors for sentencing purposes only. This timely appeal followed the
judgment.


                                       DISCUSSION
       Defendant argues that the trial court abused its discretion in refusing to dismiss his
1999 prior strike conviction of first-degree burglary because he is not within the spirt of
the Three Strikes law. We disagree.
       Under section 1385, subdivision (a), “[t]he judge or magistrate 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.” “[I]n furtherance of justice,” the trial court
may dismiss an allegation or vacate a finding that a prior serious or violent felony
conviction qualifies as a strike under the Three Strike laws. (People v. Gaston (1999)
74 Cal.App.4th 310, 314).
       In reviewing a ruling to strike or vacate a prior serious felony conviction
allegation or finding under the Three Strikes law pursuant to section 1385, subdivision
(a), “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.”
(People v. Williams (1998) 17 Cal.4th 148, 161.)
       On appeal, we review the court’s ruling under the abuse of discretion standard.
(Romero, supra, 13 Cal.4th at p. 504.) Although that standard “is deferential [,] . . . it is
not empty.” (People v. Williams, supra,17 Cal.4th at p. 162.) Courts must follow
stringent standards to find an exception to the Three Strikes law and, “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 (2004) 33 Cal.4th 367, 377.) The
burden is on the party attacking the sentence to demonstrate that the sentencing decision
is irrational or arbitrary; absent that showing, the court is presumed to have acted to

                                               5
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review. (Ibid).
       Defendant argues that application of the Williams factors demonstrates that he is
outside the spirit of the Three Strikes law. He contends that his 1999 burglary
conviction, which did not involve harm to a person, is too remote to be considered
because the crime was committed 18 years ago, in 1996, when he had just turned 16. The
judge concluded that defendant’s act as a minor was not of minimal importance because
he continued acts of violence and theft into his adulthood.
       Defendant’s criminal history demonstrates that the trial court did not abuse its
discretion. In People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054, the People cite,
the refusal to dismiss a prior strike was affirmed in large part because of defendant’s
lengthy criminal history. Defendant’s 1999 prior is still relevant in measuring his
recidivism because he was on parole for that conviction when he committed the crime
that led to his 2003 conviction. Indeed, he was still on parole for the 2003 offense when
he committed the instant crime. And in sentencing for that crime, the trial court had
granted a Romero motion. Yet defendant went on to commit acts of vandalism, and then
the present offense. These facts demonstrate that defendant has failed to live a law
abiding life after being given multiple opportunities to do so.
       While the trial court was initially inclined to dismiss one of defendant’s priors,
that was before having a “full grasp” of the serious crimes defendant has committed.
After learning more, the court found defendant’s 2003 robbery to be particularly
disturbing because defendant entered a residence, beat the victim, simulated a gun, and
threatened his life. Abuse of discretion has not been shown.
       The trial court thoroughly considered defendant’s troubled background and future
prospects. The record establishes that it appreciated the difficult life defendant had, his
potential prospects, and the nature of his offenses, but ultimately stated that “the whole
point of the Three Strikes law is to protect the public,” and the court did not believe it
was justifiable to grant the Romero motion given the entirety of defendant’s history.


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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          EPSTEIN, P. J.
We concur:



     WILLHITE, J.



     COLLINS, J.




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