Filed 10/8/14 P. v. Esperanza 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059110

v.                                                                       (Super.Ct.No. RIF1205106)

SHAWN LOUIS ESPERANZA,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. John W. Vineyard and

Michele D. Levine, Judges.* Affirmed.

         Appeals Unlimited and Richard Power, 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, Senior Assistant Attorney General, and Eric A. Swenson and

Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

         *Judge Vineyard presided over the trial. Judge Levine sentenced defendant.

                                                             1
       Defendant Shawn Louis Esperanza lived apart from his estranged girlfriend and

their three children. In the past, he had beaten one of those children, John Doe,1 with a

belt; as a result, he was subject to a criminal protective order prohibiting him from having

any contact with Doe. Nevertheless, around Christmas 2012, when Doe was 15,

defendant showed up for a visit. Defendant provoked an argument with Doe that turned

physical; defendant threw Doe to the ground and choked him.

       A jury found defendant guilty of felony infliction of physical punishment or injury

upon a child (Pen. Code, § 273d, subd. (a)), witness intimidation (Pen. Code, § 136.1,

subd. (b)(1)), and violation of a protective order (Pen. Code, § 273.6, subd. (a)). In a

bifurcated bench trial, the trial court found one “strike” prior true. (Pen. Code, §§ 667,

subds (b)-(i), 1170.12.) Defendant was sentenced to a total of eight years in prison, along

with the usual fines, fees, and conditions.

       Defendant now contends:

       1. The trial court erred by excluding evidence that Doe was smoking marijuana.

       2. The prosecutor committed misconduct by commenting on defendant’s

courtroom behavior in closing argument.

       3. There was insufficient evidence that defendant’s prior conviction for a sexual

offense in Arizona actually constituted a strike.




       1      The trial court ordered that the alleged victim be referred to by this
fictitious name. (Pen. Code, § 293.5.)



                                              2
          4. The trial court erred by denying defendant’s Romero motion.2

          We find no reversible error. Hence, we will affirm.

                                               I

                                FACTUAL BACKGROUND

          Defendant and Sandra Vergara had three children together; John Doe was the

oldest.

          In 2009, when Doe was 12, defendant beat him with a belt. As a result, defendant

was convicted of misdemeanor child abuse and became subject to a criminal protective

order that prohibited him from having any contact with Doe.3

          As of December 2012, defendant and Vergara were separated. Defendant was

living in Arizona. Vergara was living with the children in Moreno Valley. Doe was 15

years old.

          Doe was five feet six inches tall and weighed about 100 pounds. Defendant was

six feet one inch tall and weighed about 220 pounds.

          On December 22, 2012, defendant came to visit. Vergara was surprised. He had

been talking about visiting, but she had told him “it wasn’t a good idea . . . .”




          2   A “Romero motion” is a motion to dismiss a strike prior in the interest of
justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
          3   The protective order was admitted as an exhibit but has not been
transmitted to us. We therefore rely on Vergara’s testimony regarding the terms of the
protective order.



                                              3
      Around 10:30 or 11:00 p.m., Doe was in his bedroom with his friend Gibran

Donald. Defendant went to Doe’s room and started making “weird sex remarks” about

Doe’s mother. Doe asked him to stop. Defendant started yelling at Doe, “kind of like

provoking a fight.” Defendant told Doe to punch him, so Doe did. Defendant also said,

“You are going to do what I am saying.”

      Doe tried to leave the bedroom, but defendant blocked the doorway. Doe went all

around the house, trying to get away from defendant and to leave, but defendant got in

his way and pushed him back. Defendant said, “You are not leaving. You are going to

talk about this.” A television got broken when Doe tried to put it between himself and

defendant. At some point, a mirror, a window, and a sliding glass door also got broken.

      Doe picked up a phone. Defendant said, “What are you doing?” Doe replied, “I

am calling the police.” Defendant unplugged the phone and yanked it out of Doe’s

hands. Eventually, defendant “backed off,” and Doe went back to his room.

      About 20 minutes later, Doe and Donald heard Vergara scream. They came out of

the bedroom and found defendant pushing Vergara against the wall. Doe said, “Let’s go.

Get away from him.” He tried to open the front door, but defendant held it shut.

      Defendant and Doe grappled with each other.4 Defendant picked Doe up, then

threw him down against a media cabinet; a VCR fell on Doe’s head. Next, defendant

      4      Donald testified that Doe was “attacking” and “hitting” defendant, whereas
defendant was “trying to restrain [Doe] because [Doe] is going crazy.” However, he was
impeached with his statements to a prosecution investigator, which — as he admitted —
were inconsistent with his trial testimony.



                                            4
started choking Doe. Donald tried to get defendant off Doe. Defendant said, “Oh, you

want to be next,” and put Donald in a headlock.

         Vergara ran out the back door. When defendant realized that she had left the

house, he chased her. Doe followed them both.

         Vergara went to a neighbor’s house and called 911. Defendant got mad; he

grabbed Doe’s little brother and said, “All right. I am leaving.” Outside, in the front

yard, Doe grabbed his little brother away from defendant. Defendant threw Doe down on

top of his little brother, then started choking him again. When defendant “saw everybody

looking at him,” he ran away.

         Doe sustained bumps on his head and red marks around his neck, along with cuts

and scratches.

         About two hours later, the police found defendant walking down the street,

“heavily intoxicated,” and arrested him.

                                              II

     THE EXCLUSION OF EVIDENCE THAT DOE WAS USING MARIJUANA

         Defendant contends that the trial court erred by excluding evidence that Doe was

smoking marijuana.

         A.    Additional Factual and Procedural Background.

         Defense counsel advised the trial court that he intended to ask both Doe and

Donald “about their pot smoking.” The prosecutor objected, “[T]here is no evidence of

that.”



                                              5
       Defense counsel responded that defendant had told the police that the argument

started because there “was pot smoking going on in that house.” The prosecutor stated,

“[T]his was already asked of the victim at the preliminary hearing and . . . the victim

already stated that none of that happened . . . . He was not smoking pot . . . .”

       The trial court ruled: “[U]ntil there is admissible evidence . . . of any of the

witnesses smoking pot, it is improper cross-examination. It will be disallowed. [¶] I am

going to reserve on the issue that even if there is admissible evidence . . . whether it’s

relevant.”

       After a recess, defense counsel asked the trial court to “revisit” its ruling. He

noted that, at the preliminary hearing, Doe had stated that Donald brought marijuana.

The prosecutor noted again that Doe had denied actually smoking any marijuana.5 The

trial court declined to change its ruling.

       5      Doe’s preliminary hearing testimony on the subject was as follows:

       “Q Did you smoke any pot that day?

       “A No.

       “Q Do you know somebody named Gibr[a]n? [¶] . . . [¶] . . .

       “A Yeah.

       “Q Was he there that day?

       “[PROSECUTOR]: Objection. Relevance. [¶] . . . [¶] . . .

       “THE COURT: . . . [¶] Counsel, what’s your offer?

     “[DEFENSE COUNSEL]: Offer of proof is that there was marijuana being
smoked that day. That was the impetus for the argument.
                                                                   [footnote continued on next page]


                                              6
        While Doe was on the stand, one of the jurors submitted the question: “[W]ere

alcohol or drugs found to be involved?”6 In response, defense counsel asked yet again

for permission “to question John Doe about his marijuana usage . . . .” The prosecutor

objected again “that there is absolutely no evidence for it.” The trial court still declined

to change its ruling.

        Finally, before Vergara testified, defense counsel asked whether he could ask her

about marijuana use by Doe. The prosecutor objected, and the trial court precluded any

cross-examination about “[u]se of marijuana unless there is independent evidence of it.”




[footnote continued from previous page]
        “THE COURT: All right. Overruled.

        “THE WITNESS: He brang marijuana.

        “[DEFENSE COUNSEL]: Move to strike, your Honor. Nonresponsive.

        “THE COURT: Sustained. Granted.

       “Q (BY [DEFENSE COUNSEL]:) I’m going to start again. Was Gibr[a]n there
that day?

        “A Yeah, he was there.

        “Q Does Gibr[a]n smoke pot?

        “A No.

        “Q Gibr[a]n doesn’t supply you with pot?

        “A No. He has no money. He doesn’t even have a job.”
        6     As the trial court noted, it was unclear whether this question referred to
alcohol or drug use by Doe or by defendant.



                                              7
       B.     Analysis.

       “We review a trial court’s rulings on the admission and exclusion of evidence for

abuse of discretion. [Citation.]” (People v. Chism (2014) 58 Cal.4th 1266, 1291.)

       Defendant argues that evidence that Doe was using marijuana would be relevant to

the child abuse charge, because it would tend to show that he was merely exercising his

privilege to administer reasonable parental discipline. (See generally People v.

Whitehurst (1992) 9 Cal.App.4th 1045, 1050 [Fourth Dist., Div. Two].)7 It would also be

relevant to the witness intimidation charge, because it would tend to show that he

intended to talk to Doe about his marijuana use, not to prevent Doe from reporting a

crime.8 He argues that the exclusion of such evidence violated his right to present a

defense and his right to confrontation.

       All of this presumes that someone — Doe, Donald, and/or Vergara — would have

testified that Doe was, in fact, using marijuana. “It is improper to ask questions which



       7       We assume, without deciding, that defendant did have a parental discipline
privilege. It could be argued, however, that because Vergara had de facto sole custody of
Doe, and in particular, because defendant was subject to a restraining order, he did not
have the right to discipline Doe.
       8       Defendant makes some scattered references to self-defense, but he fails to
explain how evidence of marijuana use would have related to this theory. If Doe was the
initial aggressor, defendant was entitled to claim self-defense, regardless of Doe’s reason
for the aggression. And if defendant was the initial aggressor, he could not claim self-
defense (see CALCRIM No. 3471) unless the aggression was privileged as parental
discipline. (People v. Clark (2011) 201 Cal.App.4th 235, 251, fn. 12.) Finally, evidence
of marijuana use would not have helped the jury decide who was the initial aggressor.
Thus, self-defense is not an independent theory of relevance.



                                             8
clearly suggest the existence of facts which would have been harmful to [the other side]

in the absence of a good faith belief that the questions would be answered in the

affirmative, or with a belief that the facts could be proved, and a purpose to prove them,

if their existence should be denied. [Citations.]” (People v. Chojnacky (1973) 8 Cal.3d

759, 766.) The record demonstrates that Doe would have denied using marijuana; at

most, he might have admitted that Donald had some marijuana.9 If defense counsel

thought Donald or Vergara would testify otherwise, all he had to do was call them to

testify outside the presence of the jury under Evidence Code section 402. He did not do

so.

       Thus, this case is governed by People v. Capistrano (2014) 59 Cal.4th 830.

There, the defendant argued that the trial court erred by refusing to allow a witness to be

cross-examined about whether she had engaged in drug dealing. The Supreme Court

rejected this contention because the trial court had not absolutely prohibited such cross-

examination; in fact, it had acknowledged that it would be relevant for impeachment.

“Reasonably viewing the discussion, the court properly required only that [a party]

demonstrate a good faith basis for asking such questions by, for example, identifying a

potential witness to her having dealt drugs. [Citation.]” (Id. at p. 867); see also People v.

       9      Even this is doubtful. Oddly, at the preliminary hearing, when Doe said,
“He brang marijuana,” defense counsel objected, even though this was what he claimed
he was trying to prove. Moreover, Doe went on to testify that Donald did not smoke
marijuana, did not supply him with marijuana, and did not have money to buy marijuana.
One possibility is that Doe was actually asking a surprised question — “He brang
marijuana?”



                                             9
Lomax (2010) 49 Cal.4th 530, 580 [“the trial court properly prevented counsel from

asking questions that lacked a good faith basis and invited jury speculation on claims that

would not be given any evidentiary support.”].)

       For much the same reasons, defendant cannot show prejudice. Even if the trial

court had allowed defense counsel to ask the questions, on this record, it does not appear

that any witness would have testified that Doe was using marijuana.

       Because it does not appear that the excluded evidence would have been helpful to

defendant, there was no violation of his right to present a defense or his right to confront

witnesses.

                                             III

             PROSECUTORIAL MISCONDUCT BY COMMENTING ON

      DEFENDANT’S COURTROOM BEHAVIOR IN CLOSING ARGUMENT

       Defendant contends that the prosecutor committed misconduct by commenting on

his courtroom behavior in closing argument.

       A.     Additional Factual and Procedural Background.

       In closing argument, the prosecutor stated:

       “[Y]ou are going to start thinking about the facts and how they apply to the law.

Some things I want you to think about. The body language of the people who testified

and also the body language of the defendant. [¶] . . . [¶] . . .




                                             10
       “Now, what about the defendant? Huffing and puffing and making movements

and gestures because he doesn’t agree with it. He doesn’t agree with it because the truth

hurts. Those are things that you consider when you are applying the facts to the law.”

       Defense counsel did not object.

       B.     Analysis.

       “‘The standards governing review of [prosecutorial] misconduct claims are settled.

“A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits

misconduct, and such actions require reversal under the federal Constitution when they

infect the trial with such ‘“unfairness as to make the resulting conviction a denial of due

process.”’ [Citations.] Under state law, a prosecutor who uses such methods commits

misconduct even when those actions do not result in a fundamentally unfair trial.”’

[Citation.]

       “‘“As a general rule a defendant may not complain on appeal of prosecutorial

misconduct unless in a timely fashion — and on the same ground — the defendant made

an assignment of misconduct and requested that the jury be admonished to disregard the

impropriety.”’ [Citation.]” (People v. Hajek (2014) 58 Cal.4th 1144, 1238.)

       Here, defense counsel did not object. Defendant therefore argues that an objection

“would have been futile or worse because it would have emphasized or highlighted

appellant’s courtroom demeanor.” Defendant also argues that, if an objection was

required, his trial counsel rendered ineffective assistance by failing to object.




                                              11
       Before dealing with these arguments, we must distinguish between two separate

potential sources of prejudice. First, defendant could be prejudiced by his own

courtroom behavior; the jury might notice it and hold it against him, even if the

prosecutor never mentioned it. And second, defendant could be additionally prejudiced

by the prosecutor calling attention to the behavior and asking the jury to consider it.

       An objection to the asserted prosecutorial misconduct would not have been futile.

The prosecutor gave the jury permission to consider defendant’s courtroom behavior, but

the trial court could take that permission away, promptly and authoritatively. Any

additional harm the prosecutor had done could be undone.

       Arguably, an objection, even if sustained, could not undo the harm done by

defendant’s own behavior; indeed, it might have made things worse by highlighting that

behavior. Thus, competent counsel could choose not to object. (People v. Stewart

(2004) 33 Cal.4th 425, 504.) However, this would not mean that an objection to the

asserted prosecutorial misconduct was futile. Rather, it means that defendant’s trial

counsel could have had a rational tactical purpose for failing to object.

       “An objection always will highlight the matter to which the objection is directed.

Allowing this consequence to overcome the requirement of an objection would negate the

rule that a party must object and request an admonition in order to preserve a claim of

error and enable the trial court to correct the asserted error.” (People v. Foster (2010) 50

Cal.4th 1301, 1352-1353.)




                                             12
       We therefore conclude that defendant’s prosecutorial misconduct claim has been

forfeited.

                                                IV

                THE SUFFICIENCY OF THE EVIDENCE OF A STRIKE

       Defendant contends that there was insufficient evidence that his prior conviction

constituted a strike.

       A.     Additional Factual and Procedural Background.

       According to exhibits that were admitted without objection, in July 1994,

defendant was charged in Arizona with (among other things) one count of “intentionally

or knowingly engag[ing] in sexual intercourse with . . . a child under the age of fourteen

years,” in violation of Arizona Revised Statutes sections 13-1401 and 13-1405. The

crime was allegedly committed in November 1992.

       In November 1994, defendant pleaded guilty under this count to the lesser offense

of “attempted sexual conduct with a minor under 14,” in violation of Arizona Revised

Statutes sections 13-1001, 13-1401, and 13-1405, a class 2 felony. (Capitalization

altered.)

       The prosecution argued that this was the equivalent of a conviction in California

for a lewd or lascivious act on a child under 14. (Pen. Code, § 288, subd. (a).) The trial

court agreed and found the strike prior true.




                                                13
       B.     Analysis.

       An out-of-state conviction is a strike if it is “for an offense that includes all of the

elements of the particular felony as defined in subdivision (c) of Section 667.5 or

subdivision (c) of Section 1192.7.” (Pen. Code, §§ 667, subd. (d)(2), 1170.12, subd.

(b)(2).)

       An attempted lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd.

(a)) is a serious felony under Penal Code section 1192.7, subdivisions (c)(6) and (c)(39).

       “[T]he court may look to the entire record of the conviction to determine the

substance of the prior foreign conviction; but when the record does not disclose any of

the facts of the offense actually committed, the court will presume that the prior

conviction was for the least offense punishable under the foreign law.” (People v.

Guerrero (1988) 44 Cal.3d 343, 354-355.)

       The Arizona attempt statute, Arizona Revised Statutes section 13-1001, has not

been amended since 1978. (Ariz. Laws 1978, ch. 201, § 122.) It is substantively

identical to the California attempt statute (Pen. Code, § 664); defendant does not argue

otherwise. Under it, an attempt to commit a felony is one class lower than the intended

felony; in other words, an attempt to commit a class 1 felony is a class 2 felony, an

attempt to commit a class 2 felony is a class 3 felony, and so on. (A.R.S. § 13-1001,

subd. C.)

       Arizona Revised Statutes section 13-1401 provides definitions to be used in

conjunction with other statutes defining sexual offenses. Subdivision 3 of Arizona



                                              14
Revised Statutes section 13-1401 defines “[s]exual intercourse” as “penetration into the

penis, vulva or anus by any part of the body or by any object or masturbatory contact

with the penis or vulva.” This subdivision has not been amended in any material

respect10 since 1985. (Ariz. Laws 1985, ch. 364, § 16.)

       Subdivision 1 of Arizona Revised Statutes section 13-1401 defines “oral sexual

contact” as “oral contact with the penis, vulva or anus.” This subdivision, too, has not

been amended since 1985. (Ariz. Laws 1985, ch. 364, § 16.)

       Defendant does not dispute that any act that would constitute sexual intercourse or

oral sexual contact under Arizona Revised Statutes section 13-1401 would also constitute

a lewd or lascivious act under Penal Code section 288.11

       This brings us to the crime that defendant was convicted of attempting. Arizona

Revised Statutes section 13-1405 defines the crime of sexual conduct with a minor. As

of 1992, it provided:

       “A. A person commits sexual conduct with a minor by intentionally or knowingly

engaging in sexual intercourse or oral sexual contact with any person who is under

eighteen years of age.




       10    Prior to 1994, sexual intercourse included masturbation only if the
masturbation was “manual.” (Ariz. Laws 1985, ch. 364, § 16.) Effective January 1,
1994, the word “manual” was deleted. (Ariz. Laws 1993, ch. 255, § 23.)
       11     Thus, defendant does not contend that the Arizona and California statutes
have different mens rea requirements.



                                            15
       “B. Sexual conduct with a minor under fourteen years of age is a class 2 felony

. . . . Sexual conduct with a minor fourteen years of age or over is a class 6 felony.”

(Ariz. Laws 1990, ch. 384, § 2, emphasis added.)12

       Defendant therefore argues that the record fails to show that the victim was under

14, as Penal Code section 288 would require. We disagree, for two reasons.

       First, defendant expressly pleaded guilty to “attempted sexual conduct with a

minor under 14.” This admission was part of the record of conviction.

       Second, defendant pleaded guilty to a class 3 felony. Sexual conduct with a minor

under 14 was a class 2 felony (A.R.S. § 13-1405, subd. B); an attempt to commit a class 2

felony was a class 3 felony (A.R.S. § 13-1001, subdivision C.2). Thus, the record of

conviction shows that defendant was convicted of attempted sexual conduct with a minor

under 14.

                                             V

                                   ROMERO MOTION

       Defendant contends that the trial court erred by denying his Romero motion.

       A.     Additional Factual and Procedural Background.

       At the time of sentencing, defendant was 42 years old and unemployed. His

criminal history included:



       12     Before January 1, 1990 (Ariz. Laws 1985, ch. 364, § 18), and after January
1, 1994 (Ariz. Laws 1993, ch. 255, § 25), the cutoff age between a class 2 and class 6
felony was 15.



                                             16
          November 1994: Two felony convictions in Arizona, one essentially equivalent to

an attempted lewd or lascivious act on a child under 14 (see part IV, ante),13 and the other

for sexual conduct with a minor 14 or older. He was placed on probation. In March

1999, he was found to be in violation of probation and was sentenced to seven years in

prison.

          June 2008: Felony convictions for failure to register as a sex offender (Pen. Code,

§ 290, subd. (b)), failure to annually update sex offender registration (Pen. Code,

§ 290.012, subd. (a)), and failure to update sex offender registration after moving (Pen.

Code, § 290.13, subd. (a)). He was placed on probation, on conditions including the

service of a 120-day jail term on weekends. In June 2009 and again in February 2010, he

was found to be in violation of probation; the second time, he was required to serve an

additional 180-day jail term on weekends.




          13    Defendant claims that “we know very little about the nature of the Arizona
offense . . . . We do not even know the exact nature of the act or acts involved.”

       Actually, in opposition to the Romero motion, the prosecution included a rather
detailed account of the conduct underlying the conviction. The prosecution, however,
did not offer any evidence to support this account.

       It is arguable that the trial court could consider the prosecution’s account anyway.
(See People v. Wolozon (1982) 138 Cal.App.3d 456, 460, fn. 4.) If only out of an excess
of caution, however, we will disregard it.



                                               17
       June 2009: A misdemeanor conviction for child abuse. (Pen. Code, § 273d, subd.

(a).)14 He was placed on probation, on conditions including the service of a 30-day jail

term on weekends. Later in June 2009, he was found to be in violation of probation.

       September 2009: A felony conviction for threatening a witness. (Pen. Code,

§ 140.) He was placed on probation, on conditions including the service of a 127-day jail

term. In February 2010 and again in February 2012, he was found to be in violation of

probation; the first time, he was required to serve an additional 180-day jail term on

weekends.

       December 2009: A misdemeanor conviction for violation of a court order. (Pen.

Code, § 273.6, subd. (a).) He was placed on probation. In February 2012, he was found

to be in violation of probation; he was required to serve 365 days in jail.

       When defendant committed the current offenses, he was still on probation on the

June 2009 and December 2009 convictions.

       Before sentencing, defendant filed a Romero motion. In it, he argued that his

strike prior was remote. He also argued that the current offenses were “[c]omparatively

[p]etty.”

       The trial court denied the motion. It noted defendant’s “lack of success on

probation, the commission of other offenses, . . . and being[,] . . . in the Court’s mind,

given an opportunity to succeed or fail. You have thwarted all of those opportunities to



       14     This was the conviction for beating Doe with a belt.



                                             18
succeed . . . .” It added that “if [the strike] was an anomaly, in other words, if the offense

itself that you had so long ago was isolated and there was no criminal history after that, I

would feel differently . . . , but that’s not the person that I have before me.”

       B.     Analysis.

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

three-strikes prior felony conviction allegation under Penal Code section 1385. (People

v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The focus of the analysis

must be on “‘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.’ [Citation.]” (People v.

Carmony (2004) 33 Cal.4th 367, 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.” (People v. Carmony, supra, 33

Cal.4th at p. 378.)




                                              19
       “[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,

supra, 33 Cal.4th at p. 375.) “This standard is deferential. [Citations.] . . . [I]t asks in

substance whether the ruling in question ‘falls outside the bounds of reason’ under the

applicable law and the relevant facts [citations].” (People v. Williams (1998) 17 Cal.4th

148, 162.)

       There are no extraordinary circumstances in this case. Defendant is precisely the

kind of garden-variety recidivist for whom the three strikes law was designed. His

multiple convictions and his multiple failures on probation amply support the trial court’s

ruling. It is particularly telling that the current crimes were committed in violation of a

protective order, which confirms that lesser measures have not been effective in inducing

defendant to conform to the law.

       Defendant argues that the strike prior was remote. Its remoteness, however, “is

not significant” because defendant “did not refrain from criminal activity during that span

of time, and he did not add maturity to age.” (People v. Williams, supra, 17 Cal.4th at

p. 163.)

       Defendant also argues that the strike prior did not involve force or violence. The

three strikes law, however, applies to serious or violent felonies. The legislature has

chosen to designate an attempted lewd or lascivious act on a child under 14 as a serious

felony. (Pen. Code, §§ 667, subd. (a)(4); 1192.7, subd. (c)(18).) We cannot say that




                                              20
there were any particular facts or circumstances of defendant’s strike prior that took it

outside the spirit of the three strikes law.

       Defendant also argues that Doe was not seriously injured. This overlooks the fact

that defendant’s 2009 child abuse conviction was also based on an incident in which he

battered Doe. Regardless of whether Doe’s injuries were serious — either time —

evidently defendant could not refrain from violence when it came to his own son. Such

recidivism supports the trial court’s ruling. Next time, Doe might not be so lucky.

       In any event, facts indicating that the current offenses were relatively nonserious,

including the fact that Doe was not seriously injured, were matters that the trial court

could consider in deciding whether to impose the low, middle, or upper term. (Cal. Rules

of Court, rules 4.408(a), 4.421(a)(1), 4.423(a)(6).) Here, the trial court found that “this

crime did involve great violence, and though it did not involve great bodily harm, it

certainly had the threat of great bodily harm.” Accordingly, it chose to impose the

midterm. Having already taken the lack of serious injuries into account in deciding not to

impose the aggravated term, and having rejected it as a mitigating factor, it could

reasonably also reject it as a reason to strike the strike.

       We therefore conclude that the trial court did not err by denying defendant’s

Romero motion.




                                               21
                                     VI

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               RICHLI
                                                        J.

We concur:


McKINSTER
             Acting P. J.


MILLER
                       J.




                                     22
