Filed 11/4/14 P. v. League 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060521

v.                                                                       (Super.Ct.No. SWF1201669)

BARRY EDWARD LEAGUE,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.

Affirmed.

         Richard Power, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and

Respondent.




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       Defendant and appellant Barry Edward League pled guilty of failing to register as

a sex offender. (Pen. Code, § 290, subd. (b)).1 The registration requirement stems from a

1993 conviction in the state of Washington for lewd acts with a minor under 14 years of

age. Defendant admitted the prior offense for purposes of his guilty plea, but also filed a

motion to dismiss the strike under People v. Superior Court (Romero) (1996) 13 Cal.4th

497 (Romero). The trial court denied the motion. It then imposed the lower term for

violation of section 290, subdivision (b), and sentenced defendant to 16 months’

confinement, which it doubled to 32 months pursuant to the three strikes law.

       On appeal, defendant contends that the court abused its discretion by refusing to

strike one or both of his prior strike convictions. We disagree and affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Because of the 1993 Washington conviction, defendant has a lifetime obligation to

register as a sex offender. On August 8, 2011, defendant notified authorities in

Washington that he was moving to Temecula. Those authorities advised defendant of his

need to register in California and informed California authorities about his imminent

relocation. On August 25, 2011, members of the Riverside County Sheriff’s Department

contacted defendant at the address he had provided to Washington authorities, which is

an apartment complex in Temecula. Defendant admitted that he was required to register



       1 All further statutory references are to the Penal Code, unless otherwise
indicated.



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but he had not done so, despite having moved to California at least 11 days earlier. He

was consequently arrested for violating section 290.

                                         ANALYSIS

       In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that a trial

court has discretion to dismiss three strikes prior felony conviction allegations under

section 1385. (Id. at pp. 529-530.) We review the denial of a Romero motion to strike

for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375, 377

(Carmony).) We ground our inquiry in two well-established principles. First, defendant

bears the burden of showing that the trial court’s decision was “irrational or arbitrary,”

and we will presume the trial court “‘acted to achieve legitimate sentencing objectives’”

should he fail to make the necessary showing. (Id. at pp. 376-377.) Second, we will not

reverse the trial court’s order if all defendant shows is that reasonable people might

disagree about its propriety. (Id. at p. 377.) “Taken together, these precepts establish that

a trial court does not abuse its discretion unless its decision is so irrational or arbitrary

that no reasonable person could agree with it.” (Ibid.) Phrased differently, “‘[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].” (Id. at

p. 378.)

       To achieve greater unanimity in the statewide treatment of repeat offenders, the

three strikes law purposefully limits a trial court’s discretion in sentencing recidivist



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defendants. (Carmony, supra, 33 Cal.4th at p. 377.) The touchstone of the Romero

analysis 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 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.]” (Ibid.) No abuse

of discretion occurs when the trial court carefully considers and balances factors

establishing the “‘entire picture’” of the defendant. (In re Saldana (1997) 57 Cal.App.4th

620, 626-627 (Saldana).)

       Here, the record on appeal demonstrates that the trial court carefully balanced

factors related to defendant’s sentence. In the first of a series of decisions that were

favorable to defendant, it rejected one of the People’s arguments and found that his

misstatement of his California address when he was still in Washington was not

necessarily an attempt to evade being located by law enforcement. It acknowledged that

the 1993 prior offense was “extremely remote,” the current offense was nonviolent,

defendant cooperated with law enforcement once the police contacted him in Temecula,

and he had solid prospects for becoming a contributing member of society.

       In the end, though, the court found these factors outweighed by the severity of

defendant’s prior offense, which the court characterized as “the most serious prior [it had]

ever read” after briefly summarizing how defendant held a weapon to the minor he

sexually abused and muffled her screams. In addition, the court expressed “grave



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concern” over the facts that defendant, from his experiences in Washington, knew the

consequences of failing to register and still declined to prioritize his California

registration, instead lamely insisting he had not yet had an opportunity to comply with the

law, as well as that he and his wife hid his presence at the apartment complex in which

they lived from the property manager and other tenants. The court also noted that

defendant only suffered confinement in Washington because he violated the terms of his

release, which gave the court pause regarding defendant’s ability to comply with

probation terms imposed as a result of the conviction for violating section 290. Although

a violation of section 290 is not itself violent, the court found that the sex offender

registration scheme was both “serious” and accompanied by a “very, very significant”

societal interest in “keeping track of individuals who have been convicted of sex [crimes]

in their community.” (See Carmony, supra, 33 Cal.4th at pp. 378-379 [upholding

sentence of 26 years to life for repeat offender who failed to register as a sex offender on

an annual basis].) Finally, the court emphasized that, while defendant did not exhibit a

history of crimes of increasing violence, he did have, in addition the 1993 prior that

caused the need for him to register as a sex offender, prior misdemeanor convictions for

obstructing a public officer and resisting arrest.

       For these reasons, we find the trial court did not abuse its discretion in doubling

defendant’s sentence under the three strikes law. In arguing to the contrary, defendant

relies heavily on People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff). There, the reviewing

court reversed a sentence of 25 years to life in a case in which the defendant registered as



                                              5
a sex offender but failed to comply with the requirement that he confirm his registration

address each year. (Id. at pp. 995-996.) As the Carmony court explained, however, all

the Cluff court actually held was that no substantial evidence supported the trial court’s

conclusion that the defendant had intentionally obfuscated his location for purposes of

evading detection. (Carmony, supra, 33 Cal.4th at p. 379.) “Unlike the trial court in

Cluff, which relied on a factor—the defendant’s intentional obfuscation of his

whereabouts—allegedly unsupported by the record, the trial court in this case refused to

strike defendant’s prior conviction[] based on factors allowed under the law and fully

supported by the record.” (Ibid.)

       Defendant also cites Saldana, supra, 57 Cal.App.4th at p. 627, and People v.

Bishop (1997) 56 Cal.App.4th 1245, for the proposition that “the minor and non-

aggravated nature of the current offense or offenses is a powerful factor that can support

dismissal of a sufficient number of ‘strike’ priors so as to negate third strike or doubled

term status.” In each of these cases, however, the appellate court affirmed the striking of

priors by the trial court. (Saldana, at p. 624; Bishop, at p. 1248.) The “abuse of

discretion standard ‘measures whether, given the established evidence, the act of the

lower tribunal falls within the permissible range of options set by the legal criteria.’”

(People v. Jackson (1992) 10 Cal.App.4th 13, 22.) Because multiple outcomes may be

legally supportable when a trial court decides how to exercise its discretion, the fact that a

circumstance supported the striking of a prior offense in one case does not mean that the

same circumstance will require the same result in other cases. The trial court here



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considered the impact of the nonviolent nature of a section 290 violation, but found that

other factors regarding defendant outweighed this potentially mitigating circumstance.

Defendant has cited, and we have found, no case holding that the nonviolent nature of an

offense compels an order granting a Romero motion to strike. Reliance on Saldana and

Bishop is therefore unavailing.

       Like the defendant in Cluff, defendant here argues no more than that the trial court

should have balanced the relevant factors differently. As it in fact engaged in careful

balancing, no abuse of discretion occurred.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                          P. J.


We concur:


McKINSTER
                          J.


CODRINGTON
                          J.




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