Filed 3/22/16 P. v. Montellano CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B257452

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA100661)
         v.

THOMAS MONTELLANO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Mike
Camacho, Judge. Affirmed.
         Albert J. Garcia for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, and Alene M. Games, Deputy Attorney General,
for Plaintiff and Respondent.
                                      _________________________________
       Thomas Montellano appeals from the judgment entered following a jury trial in
which he was acquitted on one count of first degree residential burglary (Pen. Code,
§ 459) and convicted on one count of grand theft of a firearm (Pen. Code, § 487, subd.
(d)(2)).1 The trial court sentenced appellant to an aggregate term of nine years in state
prison, consisting of the midterm of two years, doubled for a prior strike conviction
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), plus a five-year serious felony
enhancement (§ 667, subd. (a)(1)).
       Appellant contends: (1) the trial court’s remarks concerning appellant’s absence
from the last day of trial constituted prejudicial misconduct, and violated appellant’s due
process rights; (2) the trial court committed prejudicial error when it instructed that the
jury could regard appellant’s absence from the last day of his trial as “flight”;
(3) appellant’s conviction is not supported by substantial evidence; and (4) the trial court
abused its discretion in denying appellant’s motion to strike his prior strike conviction.
We disagree and affirm.
                               FACTUAL BACKGROUND
       In October 2012, appellant’s brother, Albert Montellano,2 was living in the house
on Hacienda Boulevard where he and appellant had grown up, which he had acquired
sometime after his parents’ divorce. Appellant was living with his mother, Celia, but he
still received mail at the Hacienda Boulevard house. Celia had a key to Albert’s house,
and she and appellant visited family members there several times a month. Appellant
occasionally brought his children over to swim in the pool. Although Celia had
unrestricted access to the house, Albert had told Celia that appellant was not allowed to
visit when Albert was not home.
       In 2011, appellant’s father, Thomas Sr., was no longer able to live alone due to
failing health and moved back into the house with Albert. Thomas Sr. was a musician


       1   Undesignated statutory references are to the Penal Code.
       2   We refer to individuals who share the same surname by their first names.



                                              2
and owned several trumpets, which he kept at Albert’s house. At some point Thomas Sr.
had given one of the trumpets to appellant for appellant’s son to play, but took it back
sometime in 2011. Albert, who also played the trumpet, believed that his father had
given all of his trumpets to Albert.
       On October 9, 2012, appellant and Celia went to Albert’s house to visit
Thomas Sr. and to retrieve the trumpet previously given to appellant’s son. Mary Lara,
who rented an upstairs bedroom from Albert, was the only person home at the time.
Appellant told Lara he was there to see his father and mentioned he was looking for a
trumpet his father had given him. But neither Albert nor Thomas Sr. was home: Albert
was away for the weekend, and Thomas Sr. had gone to the hospital a few days earlier.
       Upon learning that both Albert and Thomas Sr. were away, appellant proceeded
directly to Albert’s bedroom, where he forced the door open, breaking the lock.
Appellant entered the room, and Celia followed. Celia testified that after looking around
the room for the trumpet, she took a rifle from the closet for “safety purposes” and as
collateral for the trumpet. Celia and appellant then left the house together. According to
Celia, appellant walked away from Albert’s house and she did not see him again for three
months. Celia also testified that when she returned home, she put the rifle in her garage.
       After appellant and Celia left, Lara telephoned Albert and told him appellant had
broken into his bedroom. Albert called the police. During the subsequent investigation,
Lara and Celia told deputies that appellant had kicked in Albert’s bedroom door and left
the house carrying the rifle. Celia told police that after leaving Albert’s house, she and
appellant drove home, and appellant later left in her truck.
       Police recovered the rifle from Celia’s garage. Celia explained to police that she
had received an anonymous phone call from a person purporting to speak for appellant
who told her the rifle was in her garage. The caller had asked Celia to relay a message to
Albert that appellant “was sorry for kicking in the door. . . . He was returning the gun.
He was sorry for taking the gun. He’ll repair everything. He wants his brother to drop all
the charges because he’s on probation.”



                                             3
                                       DISCUSSION
 I.    Appellant’s Conviction Finds Substantial Evidentiary Support in the
       Record
       Appellant contends the evidence was insufficient to support his conviction for
grand theft of a firearm, on the grounds that: (1) the prosecution failed to present
evidence establishing Albert’s ownership of the rifle; and (2) there was no evidence that
appellant intended to permanently or for an extended period of time deprive the owner of
the rifle of its value or enjoyment. Appellant’s claim is without merit.
       In reviewing a challenge to the sufficiency of the evidence, we examine the whole
record in the light most favorable to the judgment, drawing all reasonable inferences in
favor of the verdict, and presuming “‘in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Maciel
(2013) 57 Cal.4th 482, 514–515; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Further,
“‘“[a]lthough it is the jury’s duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of which suggests guilt and
the other innocence, it is the jury, not the appellate court that must be convinced of the
defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“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.”’” [Citation.]’ [Citation.]” (People v. Virgil (2011)
51 Cal.4th 1210, 1263; People v. Lindberg (2008) 45 Cal.4th 1, 27; People v. Kraft,
supra, at pp. 1053–1054.)
       To establish grand theft of a firearm, the prosecution was required to prove:
(1) appellant took possession of a firearm owned by someone else; (2) appellant took the
firearm without the owner’s consent; (3) when appellant took the firearm he intended to
deprive the owner of it permanently or to remove it from the owner’s possession for so
extended a period of time that the owner would be deprived of a major portion of its
value or enjoyment; and (4) appellant moved the firearm, even a small distance, and kept
it for any period of time, however brief. (§§ 484, 487, subd. (d)(2); People v. Davis


                                               4
(1998) 19 Cal.4th 301, 305; People v. Williams (1946) 73 Cal.App.2d 154, 157;
CALCRIM No. 1800.)
       Appellant contends that the evidence failed to establish Albert’s ownership of the
rifle, but instead showed that the firearm belonged to the family in a collective sense. In
so arguing, appellant points to Albert’s testimony that the rifle had been in the family
home (now owned by Albert) for over a quarter of a century, and Albert’s use of the
indefinite article “a” when testifying to his discovery that “a rifle” was missing from the
closet in his locked bedroom. But Albert identified the rifle in the photograph as his rifle.
He further testified that he had kept the rifle in the closet of his locked bedroom in the
house he owned. Thus, despite appellant’s characterization of Albert’s testimony about
his ownership as “equivocal” and “inconsistent with what would reasonably be expected
from the owner of the rifle,” the evidence was nevertheless sufficient to support the
conclusion that Albert was the rightful owner of the rifle.
       Appellant’s claim that there was insufficient evidence that he intended to deprive
his brother of the rifle permanently or for an extended period of time fails as well. The
intent element of theft may be “satisfied by the intent to take the property only
temporarily, but for so extended a period of time as to deprive the owner of a major
portion of its value or enjoyment.” (People v. Avery (2002) 27 Cal.4th 49, 52.)
“Evidence of intent to commit a theft ‘is rarely demonstrated by direct proof, and as a
result, may be inferred from facts and circumstances.’ [Citation.]” (People v. Hussain
(2014) 231 Cal.App.4th 261, 273.)
       Appellant concedes that he took the rifle “as a sort of ‘collateral’ to ensure return
of the trumpet to appellant.” In light of abundant evidence that appellant kicked in
Albert’s locked bedroom door in search of the trumpet, the jury could readily infer that
appellant was prepared to keep his brother’s rifle for as long as would be necessary to get
Albert to turn over the trumpet. We thus find the evidence of appellant’s intent sufficient
to sustain his conviction for grand theft of the firearm.




                                              5
 II.   The Trial Court Did Not Err in Informing the Jury of Appellant’s
       Voluntary Absence from Trial, and Appropriately Instructed the Jury
       Regarding Flight
       A. Relevant Background
       Appellant was present for the first two days of trial, but failed to appear the
morning of the third day, and was absent for the remainder of the trial. Outside the
presence of the jury, the trial court noted that appellant had been ordered to appear at
9:00 a.m. Defense counsel reported that he had spoken with his client the night before
regarding preparation for that day’s proceedings. When he spoke to Celia that morning,
she had told him that appellant’s girlfriend had picked appellant up at 7:00 a.m. The
attorney had neither heard from appellant nor had he been able to locate him after leaving
multiple messages on the girlfriend’s cell phone.
       After discussions regarding jury instructions, the court noted appellant’s continued
absence. Defense counsel advised the court that he was still unable to reach appellant.
After finding appellant’s absence to be voluntary, the court declared the trial would
proceed without him. Defense counsel objected to proceeding in appellant’s absence and
requested a continuance, arguing that the specific reason for appellant’s failure to appear
was unknown, and extreme prejudice would result from proceeding without him. The
court denied the continuance, finding that appellant was with his girlfriend who was
simply not returning phone calls, and was attempting to impede the judicial process with
his absence. The court also stated its inclination to permit the People to argue
consciousness of guilt through flight based on appellant’s voluntary absence.
       The court then addressed the jury:
       “On record in the matter of People versus Thomas Montellano. Now,
Mr. Montellano is not present before the court as I speak, but he continues to be
represented by counsel, Mr. Ellis. . . . [¶] . . . [¶] Mr. Thomas Montellano, as you can
plainly see, has chosen not to attend this trial. He has voluntarily evidently absented
himself from this trial but his decision will not delay these proceedings any further.
We’re going to continue in his absence. He has a right to be present during his trial. But


                                              6
if he chooses not to attend, that is his right evidently and he has chosen not to attend.
Now, the court did order him to return to this courtroom at 9:00 this morning. I’ve given
him plenty of time to return. We’ve had no contact with him. Now, he was ordered to
return to court, which means that he is under court order to return. The fact that he has
failed to appear shows a violation of a court order. Even though he has a right to be
present during his trial, he can choose obviously to waive that right and not be present but
he cannot ignore a court order to attend. So technically he is supposed to be here and he
has chosen not to be here. So we’re going to proceed in his absence, which the law
permits. And you will be instructed accordingly as to how you can consider Mr.
Montellano’s decision not to attend this trial in your consideration of the evidence in this
case.”
         Thereafter, on six separate occasions, the court reminded the jury that appellant
was voluntarily absent from the proceedings.
         In concluding instructions to the jury, the court instructed that appellant’s
voluntary absence from the trial could be considered “flight.” Immediately after the court
gave the flight instruction, a juror asked the court a question:
         Juror:        “Would that be an aspect with his not being here?”
         The Court:    “Absolutely.”
         Juror:        “I mean—”
         The Court:    “Well, one second. I can’t get into a debate on the subject. All I can
tell you is that this instruction—”
         Juror:        “His absence in [sic] unexcused or unexplained?”
         The Court:    “Absolutely. The jury will be permitted to consider that as evidence
of flight in considering whether or not he had a consciousness of guilt. [¶] Now, again,
as the law reads—and I can’t debate the issue with you or get into—”
         Juror:        “I’m not debating.”
         The Court:    “Or get into a discussion, I should say; a poor use of words on my
part. Just follow the law. The law says if you conclude, as an individual juror, even as a
unanimous jury, that the defendant fled or tried to flee, including his conduct recently as


                                                7
today, you can consider that conduct in reaching your verdict. However, evidence that
the defendant fled or tried to flee cannot prove guilt by itself. So consider the law, and
you can apply it to everything that has transpired up to and including the defendant’s
absence today.”
       Following closing arguments by counsel, the same juror attempted to pose another
question to the court, but the court explained that there was a procedure for asking
questions that must be followed. The juror made no further inquiry, and no questions
were submitted by the jury during deliberations. That afternoon, the jury returned
verdicts acquitting appellant of burglary and convicting him of grand theft of a firearm.
       Before commencing the trial on appellant’s prior convictions, the trial court again
discussed appellant’s continued absence with defense counsel outside the presence of the
jury. Counsel advised the court that appellant’s girlfriend and mother had told him that
they brought appellant to the courthouse, and “he’s still nervous in the parking lot.”
Defense counsel added, “Just to be clear, I haven’t seen him personally. That’s what they
tell me. I’ve been on the phone with him all night trying to get him in here.” The court
took a 15-minute recess for appellant to return to the courtroom. But appellant failed to
appear, and eventually the trial on appellant’s priors proceeded without him.
       B. Appellant’s Claims of Judicial Misconduct and Instructional Error
          Are Forfeited
       Appellant contends the trial court’s alleged judicial misconduct took three forms:
(1) repeatedly calling attention to, and thereby improperly emphasizing, appellant’s
voluntary absence from trial; (2) disclosing to the jury that appellant had been under a
court order to return to court, and that his voluntary absence was a violation of that order;
and (3) instructing the jury that it could regard appellant’s absence during trial as “flight,”
and determine whether such flight evidenced a consciousness of guilt. Appellant’s
failure to object below forfeited these claims on appeal.
       Defense counsel objected to proceeding with trial in appellant’s absence, but was
silent as to the trial court’s admonition that appellant’s absence violated a court order as
well as its repeated reminders to the jury regarding appellant’s voluntary absence from


                                              8
trial. The lack of any objection or request for an admonition to the jury forfeited the
claim on appeal that these remarks constituted judicial misconduct which violated
appellant’s due process rights. (People v. Sturm (2006) 37 Cal.4th 1218, 1237 [“As a
general rule, judicial misconduct claims are not preserved for appellate review if no
objections were made on that ground at trial”]; People v. Snow (2003) 30 Cal.4th 43, 77–
78.) Similarly, appellant’s claim that the trial court improperly instructed on flight was
forfeited by the failure to object below. (People v. Sanders (1995) 11 Cal.4th 475, 533.)
Further, it does not appear that objections to the trial court’s statements regarding
appellant’s absence or the flight instruction would have been futile. (People v. Snow, at
p. 78; People v. Sanders, at p. 531.) Indeed, the trial court gave defense counsel ample
opportunity to secure the presence of his client, and properly weighed counsel’s objection
to proceeding without appellant.
         In any event, as we explain below, even if not forfeited, appellant’s claims lack
merit.
         C. The Trial Court’s Remarks to the Jury Regarding Appellant’s
            Voluntary Absence from Trial Did Not Constitute Judicial
            Misconduct, Nor Did They Occasion Any Violation of Appellant’s
            Due Process Rights
         Appellant asserts that the court should have admonished the jury against
considering or speculating about appellant’s absence, rather than “decreeing” that his
absence constituted a violation of the court’s order to appear. But defense counsel
requested no such admonition, and the trial court had no sua sponte duty to instruct the
jury not to consider appellant’s voluntary absence. (People v. Sully (1991) 53 Cal.3d
1195, 1241.) Unlike the appearance of a shackled defendant before the jury, our
Supreme Court has held that “[n]o similar inference of prejudice arises when a defendant
voluntarily absents himself and the jury is so informed.” (Ibid.)
         Appellant goes on to characterize the court’s disclosure to the jury that appellant’s
failure to appear constituted a violation of a direct court order as a serious and prejudicial
instance of judicial misconduct requiring reversal. We disagree.


                                               9
       Citing section 1320.5, which makes it a felony for a person charged with a felony
to willfully fail to appear in order to evade the process of the court, appellant contends
that the court’s statement incriminated appellant before the jury. Appellant continues:
“The Star Chamber trial and conviction of appellant for the uncharged offense of ‘failure
to appear’—proceedings conducted in the secretive recesses of the trial judge’s own
mind—followed by the very public pronouncement of appellant’s guilt of the offense in
open court, and in the presence of the jury, was extravagant judicial misconduct that
deprived appellant of his due process rights.”
       However, even if the court’s reference to appellant’s violation of a court order was
improper, the record is devoid of any evidence of prejudice based on the court’s
statement. The court’s statement informing the jury that appellant had been ordered to
return to court, and by his voluntary absence had violated that order, falls far short of a
declaration that appellant was guilty of a separate criminal offense based on his voluntary
absence, much less a “Star Chamber trial and conviction ” of the uncharged felony of
failing to appear. Appellant’s hyperbole is no substitute for a demonstration of actual
prejudice. In light of an acquittal on the most serious charge appellant was facing (first
degree burglary) and the abundant evidence supporting his conviction on the grand theft
charge, appellant has failed to show that the court’s statement had any adverse effect on
the verdict whatsoever. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
       “The role of a reviewing court ‘is not to determine whether the trial judge’s
conduct left something to be desired, or even whether some comments would have been
better left unsaid. Rather, we must determine whether the judge’s behavior was so
prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.]’
(People v. Snow, supra, 30 Cal.4th at p. 78.)” (People v. Harris (2005) 37 Cal.4th 310,
347.) In the absence of any showing of prejudice, the record in this case does not support
appellant’s claim that he was deprived of his constitutional right to a fair trial or an
impartial judge.




                                              10
       D. The Trial Court Properly Instructed the Jury Regarding Flight Based
           on Appellant’s Voluntary Absence from Trial
       Contending the flight instruction applies only when the evidence shows the
defendant departed the crime scene to avoid arrest, appellant asserts that the record does
not support the application of the flight instruction to appellant’s voluntary absence
during his trial.3 We disagree.
       CALCRIM No. 3724 allows the jury to draw an inference of consciousness of guilt
if it finds the defendant fled the scene of a crime to avoid observation or arrest, or if it
finds the defendant fled after he was accused of committing the crime. (People v. Snyder
(1976) 56 Cal.App.3d 195, 198–199 (Snyder); People v. Vargas (1975) 53 Cal.App.3d
516, 530 (Vargas).) In Snyder, the defendant was absent following jury selection and
remained so until after a verdict had been reached. On appeal the court upheld the trial
court’s flight instruction, noting: “[I]n the absence of any explanation it would be
reasonable to infer that defendant’s absence was voluntary and it was a fact relevant to
the determination as to his guilt or innocence. [Citation.] ‘It was for the jury to
determine whether appellant’s conduct amounted to flight and the significance and
weight to be attached to such circumstance.’ [Citation.]” (Snyder, at p. 199.)
       Similarly, in Vargas, the defendant was present for jury selection but failed to
appear the following day for trial, and the trial proceeded without him. The trial court
informed the jury that although the defendant had been there earlier, he apparently had
voluntarily left the courthouse. The defendant did not return for the remainder of the
trial, and the court instructed the jury that it could consider the defendant’s absence in


       3 Appellant left town immediately after the incident, and does not contend the trial
court erred in instructing the jury on flight based on that fact.
       4  CALCRIM No. 372 provides: “If the defendant fled or tried to flee immediately
after the crime was committed or after he was accused of committing the crime, that
conduct may show that he was aware of his guilt. If you conclude that the defendant fled
or tried to flee, it is up to you to decide the meaning and importance of that conduct.
However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”


                                              11
deciding his guilt or innocence. (Vargas, supra, 53 Cal.App.3d at pp. 522–523, 529;
CALJIC No. 2.52.) On appeal, the defendant claimed error based on the lack of evidence
before the jury concerning the reasons for defendant’s absence and because the
instruction permitted an adverse inference based on the defendant’s failure to testify.
(Vargas, at p. 530.) The appellate court rejected both arguments, holding that in order
for the trial to proceed, the trial court was required to assess the reasons for defendant’s
absence to make a finding as to whether the absence was voluntary. (Ibid.) But the
reasons for defendant’s absence were irrelevant to the jury, which was only to be
informed the absence was voluntary and determine for itself the weight to be given the
evidence of defendant’s absence. (Ibid.) As for the defendant’s constitutional right not
to testify, the court explained: “The flight instruction only permitted an inference to be
drawn from the defendant’s failure to be physically present. The jury were expressly
instructed not to consider or draw any inferences from his failure to testify.” (Id. at pp.
530–531.)
       Here, as in Snyder and Vargas, appellant’s voluntary absence in the middle of trial
constituted “some evidence of flight” (Vargas, supra, 53 Cal.App.3d at p. 530), and the
jury was appropriately instructed that it could consider that evidence in deciding his guilt
or innocence.
       We find no indication the jury misconstrued the flight instruction, or placed undue
emphasis on appellant’s absence in rendering its verdicts. We review the instructions as
a whole to determine whether it is reasonably likely that the jury misconstrued them.
(People v. Roybal (1998) 19 Cal.4th 481, 527; People v. Mendoza (1998) 18 Cal.4th
1114, 1134; People v. Frye (1998) 18 Cal.4th 894, 957, overruled on another point in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Ramos (2008) 163
Cal.App.4th 1082, 1088.) In People v. Frye, our Supreme Court held: “In conducting
this inquiry, we are mindful that ‘“a single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the overall charge.”’” (People v.
Frye, supra, 18 Cal.4th at p. 957, quoting Boyde v. California (1990) 494 U.S. 370, 378
[110 S.Ct. 1190, 1196]; see also People v. Burgener (1986) 41 Cal.3d 505, 538 [“the


                                              12
correctness of jury instructions is to be determined from the entire charge of the court, not
from a consideration of parts of an instruction or from a particular instruction”],
overruled on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753.)
       In addition to the flight instruction, the trial court gave CALCRIM No. 200, which
cautioned jurors to “[p]ay careful attention to all of these instructions and consider them
together. [¶] . . . [¶] Do not assume just because I give a particular instruction that I am
suggesting anything about the facts.” The flight instruction itself informed jurors that a
defendant’s voluntary absence “cannot prove guilt by itself.” The trial court further
instructed regarding the presumption of innocence and the People’s burden to prove guilt
beyond a reasonable doubt (CALCRIM No. 220), as well as a defendant’s absolute,
constitutional right not to testify (CALCRIM No. 355). These instructions insured that
the flight instruction did not undermine the presumption of innocence or relieve the
prosecution of its burden to prove appellant’s guilt beyond a reasonable doubt.
       E. Nothing the Trial Court Said Removed the Question of Whether
          Appellant’s Absence Constituted “Flight” from the Jury’s
          Consideration
       Appellant contends that the court essentially directed the jury to find that
appellant’s voluntary absence during trial constituted “flight.” With that “judicial
determination,” appellant argues, “the jury did not have to decide the threshold question
of whether a flight had, in fact, occurred, in order to consider whether that conduct
evidenced a consciousness of guilt.” We disagree.
       In responding to the juror’s question, the court admonished the jury to follow the
law, explaining that if the jury concluded that appellant’s absence from trial constituted
flight, that conduct could be considered in reaching a verdict. The court also emphasized
that evidence of flight could not prove guilt by itself. Thus, the flight instruction and the
court’s explanation regarding its application placed the determination of whether
appellant’s absence constituted “flight” squarely with the jury.
       Moreover, as set forth above, appellant has failed to demonstrate any prejudice
from the court’s remarks about appellant’s absence, even if they could be described as a


                                             13
“judicial determination” on the issue of flight. The jury acquitted appellant of burglary.
And the evidence of appellant’s theft of the rifle from his brother’s locked bedroom was
overwhelming. On these facts, there appears no reasonable probability that a result more
favorable to appellant would have been reached absent the court’s alleged misdirection
on the issue of flight. (People v. Silva (1988) 45 Cal.3d 604, 628; People v. Watson,
supra, 46 Cal.2d at p. 836.)
 III. The Trial Court Properly Exercised Its Discretion in Denying
       Appellant’s Motion to Strike His Prior Conviction
       Appellant contends that the trial court abused its discretion in denying his motion
to dismiss his prior strike conviction under People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 530 (Romero), because the ruling was premised on unsupported
assumptions that the court improperly found to be “aggravating.” We disagree.
       We review the trial court’s refusal to dismiss appellant’s prior strike conviction
under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th
367, 374 (Carmony).) A trial court’s authority to depart from the sentencing norm
established by the Three Strikes law and find an exception to the law’s application is
narrowly circumscribed. Indeed, “a strong presumption [exists] that any sentence that
conforms to the law’s paradigm is both rational and proper.” (Carmony, supra, at p.
378.) “In light of this presumption, a trial court will only abuse its discretion in failing to
strike a prior felony conviction allegation in limited circumstances.” (Ibid.)
       Reviewing the trial court’s ruling, we “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 (Williams);
Carmony, supra, 33 Cal.4th at p. 377.) A trial court’s refusal to strike constitutes an
abuse of discretion only in an “extraordinary case” where “its decision is so irrational or



                                              14
arbitrary” and the relevant factors so “manifestly support the striking of a prior
conviction” that “no reasonable minds could differ.” (Carmony, at pp. 377–378.)
       “‘The burden is on the party attacking the sentence 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.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977–978 (Alvarez); Carmony, supra, 33 Cal.4th at pp. 376–377.) Thus, it is not
enough to show that reasonable minds may differ over whether to strike a defendant’s
prior conviction, and “‘[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.]” (Carmony, at p. 378.)
       In determining that appellant did not fall outside the spirit of the Three Strikes
law, the trial court cited appellant’s extensive criminal history, which included seven
misdemeanor convictions since 1986, one prior prison term, and two felony
convictions—one in 1992 (burglary, § 459) and the other in 2001 (criminal threats,
§ 422). The court emphasized that appellant was on a three-year grant of probation on
two separate cases when he committed the current offense. Observing that several of the
misdemeanors could have been charged as felonies, and appellant had benefited from
judicial leniency on several occasions, the trial court declared that such “efforts to be
lenient with [appellant] in the past have miserably failed.” The court concluded, “It’s
time for [appellant] to be punished with basically the strike intact for the first time.” In
light of these factors we do not consider the trial court’s decision to be irrational or
arbitrary.
       An abuse of discretion also occurs “where the court considered impermissible
factors in declining to dismiss. [Citation.]” (Carmony, supra, 33 Cal.4th at p. 378.)
Appellant contends that the trial court relied on factors in aggravation that were
unsupported by the record, and thus abused its discretion in declining to strike appellant’s


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prior conviction. We disagree. As respondent observes, the court expressly did not rely
on any of the factors in aggravation it had found, declaring that the factors in mitigation
“washed out” those in aggravation. Thus, no impermissible factors figured into the trial
court’s denial of the Romero motion.
       We also reject appellant’s claim that the denial of the Romero motion resulted in
an unfair and excessive sentence for the theft of a rusty, old family rifle. In so arguing,
appellant focuses on a single factor—the nature and circumstances of appellant’s current
offense—to the exclusion of all others. (See People v. Garcia (1999) 20 Cal.4th 490,
501.) Were we to hold that this factor should predominate over other appropriate
considerations, we would be improperly substituting our own judgment for that of the
trial court, and thereby eviscerating the trial court’s discretion under the Supreme Court’s
decisions in Romero and Williams. (Carmony, supra, 33 Cal.4th at p. 379; Alvarez,
supra, 14 Cal.4th at p. 979.)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                  LUI, J.
We concur:


       CHANEY, Acting P. J.


       JOHNSON, J.




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