Filed 10/6/14 P. v. Carroll CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C070466

                   Plaintiff and Respondent,                                   (Super. Ct. No. CRF 11-1155)

         v.

TIMOTHY FRANCIS CARROLL,

                   Defendant and Appellant.




         Following a bifurcated jury and court trial, defendant Timothy Francis Carroll was
found guilty of petty theft with a prior in violation of Penal Code sections 484,
subdivision (a), 490.5, subdivision (a), and 666, subdivision (a). (Statutory references
that follow are to the Penal Code.) At issue here is his conviction under section 666,
subdivision (a), which provides in part that every person who is convicted of petty theft
following three prior burglary convictions for which the person was incarcerated may be
imprisoned in the county jail not exceeding one year, or in the state prison. (§ 666, subd.
(a).)


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       Although defendant admitted the three prior burglary convictions for purposes of
section 666 so that the jury would not learn of the convictions, he now contends on
appeal that he did not admit that he served time for those prior convictions. Without such
an admission, defendant argues, the prosecution failed to prove all of section 666’s
elements, and, thus, his felony conviction under section 666, subdivision (a), should be
modified to reflect a misdemeanor petty theft conviction only.
       Defendant further contends the trial court abused its discretion in denying his
motion to strike his prior serious or violent felony conviction under People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero). We do not find merit in either of
defendant’s contentions on appeal and therefore affirm the judgment.

                                FACTS AND PROCEEDINGS

       A.     Theft Citation

       On January 15, 2011, defendant was shopping at a Wal-Mart store in West
Sacramento. He was apprehended by a Wal-Mart loss prevention officer after he
attempted to leave the store without paying for various items he had placed in a backpack
that was located in his cart.
       Defendant put two cans of spray paint as well as bike lights in the child seat of a
shopping cart near an empty backpack. After observing defendant with the items and the
empty backpack, the loss prevention officer followed defendant to the store’s grocery
area. Defendant placed several food items and some toilet paper in the cart. Defendant
loaded the paint, bike lights, and toilet paper into the backpack. He then put the
backpack on and proceeded to the checkout stand.
       Defendant purchased the food items, but failed to pay for the items in the
backpack. The loss prevention officer took defendant to the security office and recovered
the items in the backpack, the prices of which totaled $79.60.




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       Police were sent to the Wal-Mart store where an officer issued defendant a citation
for theft. Defendant told the officer that he had messed up and that he had intended to
buy groceries but couldn’t afford the other items so he put them in his backpack and left
without paying for them.

       B.     Bifurcated Trial Proceedings

       An amended information charged defendant in count 1 with felony petty theft in
violation of sections 484, subdivision (a), 490.5, subdivision (a), and 666, subdivision (a).
The amended information alleged defendant had suffered three prior felony burglary
convictions for purposes of section 666. The information also contained four
enhancement allegations--three prior prison terms pursuant to section 667.5, subdivision
(b) [enhancements b through d], and a prior serious felony conviction within the meaning
of section 667, subdivision (e)(1) and listed in sections 667.5, subdivision (c) and 1192.7,
subdivision (a) [enhancement a].
       The court granted defendant’s requests to bifurcate the proceedings and for a court
trial on the four enhancement allegations. Prior to the jury trial, defendant admitted that
he had suffered the three prior burglary convictions as alleged in count 1 so that the jury
was told only that defendant was charged with petty theft and not petty theft with a prior.
The jury convicted defendant of petty theft pursuant to sections 484, subdivision (a) and
490.5, subdivision (a).
       After the jury was dismissed, the court and counsel discussed when to conduct the
bifurcated court trial. Defense counsel reiterated that defendant was only requesting a
court trial on the enhancements and not on the three prior burglary convictions alleged in
count 1 as defendant had already admitted those for purposes of section 666. Based on
the jury’s verdict and defendant’s admissions, the court determined that defendant had
been convicted of petty theft with a prior under section 666.




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       At the court trial on the enhancements, the court, prosecution, and defense counsel
all confirmed their understanding that defendant had admitted the prior theft convictions
for purposes of section 666 and that he stood convicted of felony petty theft with a prior
under that statute. The court found all four enhancements true. After denying
defendant’s Romero motion to strike his prior serious or violent felony conviction for
purposes of the three strikes law, the court sentenced defendant to seven years, consisting
of the middle term of two years on the petty theft with a prior conviction, doubled for the
enhancement under section 667, subdivision (c) and section 667 subdivision (e)(1), plus
three consecutive years for the prior prison term enhancements under section 667.5,
subdivision (b).

                                        DISCUSSION

                                              I

                            Penal Code Section 666 Conviction

       Defendant argues there was insufficient evidence to support his conviction under
section 666, subdivision (a). While defendant admits he stipulated to the three prior theft
convictions alleged in count 1, he claims he did not stipulate that he had been imprisoned
for those convictions. Because subdivision (a) of section 666 requires both that the
individual have three prior theft convictions and that the person served a term in a penal
institution as a result for those convictions, he says the prosecution failed to prove felony
petty theft with a prior under section 666. The record belies his argument.
       To determine whether there is substantial evidence to support a conviction, we
view the record in a light most favorable to the People, resolving all conflicts in the
evidence and drawing all reasonable inferences in support of the conviction. (People v.
Campbell (1994) 25 Cal.App.4th 402, 408.) When viewed in this manner, the record
contains substantial evidence supporting defendant’s section 666, subdivision (a)
conviction.


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       Section 666, subdivision (a), provides in relevant part: “Notwithstanding Section
490, every person who, having been convicted three or more times of petty theft . . .
burglary . . . and having served a term therefor in any penal institution or having been
imprisoned therein as a condition of probation for that offense, and who is subsequently
convicted of petty theft, is punishable by imprisonment in a county jail not exceeding one
year, or imprisonment pursuant to subdivision (h) of Section 1170.” (§ 666, subd. (a).)
       “[O]n its face, section 666 is a sentence-enhancing statute, not a substantive
‘offense’ statute.” (People v. Bouzas (1991) 53 Cal.3d 467, 479.) Thus, “the prior
conviction and incarceration requirement of section 666 is a sentencing factor for the trial
court and not an ‘element’ of the section 666 ‘offense’ that must be determined by a
jury.” (Id. at p. 480.) A defendant has “a right to stipulate to the prior conviction and
incarceration and thereby preclude the jury from learning of the fact of his prior
conviction.” (Ibid.) That is what defendant did here.
       On the first day of the jury trial, defendant admitted that he suffered the three prior
convictions alleged in count 1. The purpose of defendant’s admission was to preclude
the jury from hearing about those convictions and so that the jury would only be told that
he was charged with petty theft and not petty theft with a prior. The court accepted
defendant’s admission and waiver of the right to have a jury decide whether he had been
convicted of the three prior thefts alleged in count 1 of the amended information.
       In discussing how to proceed on the bifurcated court trial after the jury convicted
defendant on the petty theft charge under sections 484, subdivision (a) and 490.5,
subdivision (a), the prosecutor asked to clarify whether defendant was “admitting the
priors that go to Count 1 to make it a 666.” The trial court responded that he understood
that defendant had originally intended to admit the priors alleged in count 1, but that now
defendant requested the court decide those as well as the enhancements in the bifurcated
court trial. In response, the prosecutor stated she had misunderstood because she
“thought he was admitting those for purposes of the 666.”

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         The court then questioned defense counsel as to whether defendant was admitting
the three prior thefts listed in count 1 for purposes of section 666. Defense counsel
responded, “[h]e’s admitting that he has suffered three theft-related convictions within
the meaning of 666; however, also alleged as enhancements are prison priors and the
identification of one of those as coming within the meaning of [section] 667(e)(1), which
is something he requests the Court to make a determination on.”
         Based on defense counsel’s response, the court then clarified its understanding that
“Mr. Carroll admits the priors for purposes of count 1. The jury has found him guilty of
petty theft, and Mr. Carroll admits the prior convictions for purposes of count 1 only;
however, he wishes a court trial requiring the People to prove the four case
enhancements.” Defendant and his counsel each confirmed that the court’s
understanding that defendant had admitted the three prior theft convictions within the
meaning of 666 was correct, and that “count 1 [was] done.”
         Before concluding the court session, the trial court again stated, “It’s understood
that all the issues related to count 1 are done based on the jury verdict and Mr. Carroll’s
admission. He is--he stands convicted of petty theft with a prior conviction.” Neither
defendant nor his counsel objected to the parties’ “understanding” as characterized by the
court.
         At the subsequent court trial on the enhancements, the prosecutor stated: “I would
just indicate for clarification that, last time, my understanding is that the defendant
admitted to the three prior thefts, which would make this a 666 felony as opposed to the
484 that the jury convicted him of, and, so, currently, he stands convicted [of] a 666, and
that the People’s burden today is to establish evidence to show Case Enhancement A, B,
C, and D.” The court asked defense counsel whether that was his understanding as well,
and defense counsel responded that it was. The court then stated that was also its
understanding.



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       The above exchanges between the court, counsel, and defendant make clear that
defendant admitted to his three prior theft convictions “within the meaning of 666.” By
so admitting, defendant stipulated that his three prior convictions met all the requirements
of that statute, including service of a period of incarceration. (§ 666, subd. (a).)
       Defendant did not disagree with the court’s characterization that “count 1 [was]
done.” Had defendant admitted the prior theft convictions for purposes of section 666’s
conviction element only, as he now argues on appeal, count 1 would not have been
“done.” Yet defendant’s failure to disagree with the court’s observation that count 1 was
“done” strongly suggests that he saw the matter that way as well and not the way he
characterizes it on appeal.
       When viewed in the light most favorable to the judgment, the evidence reasonably
indicates that defendant admitted he had suffered three prior theft convictions for which
he had been imprisoned within the meaning of section 666, subdivision (a). His
conviction for felony petty theft with a prior was proper.

                                              II

                                 Denial of Romero Request

       Defendant contends the trial court abused its discretion by failing to strike
defendant’s prior serious or violent felony conviction pursuant to Romero. (Romero,
supra, 13 Cal.4th 497.) Finding no abuse of discretion, we disagree.
       A trial court has discretion to strike a prior serious felony conviction only if the
defendant falls outside the spirit of the three strikes law. (People v. Williams (1998)
17 Cal.4th 148, 161.) “[T]he three strikes law not only establishes a sentencing norm, it
carefully circumscribes the trial court’s power to depart from this norm and requires the
court to explicitly justify its decision to do so. In doing so, the law creates a strong
presumption that any sentence that conforms to these sentencing norms is both rational
and proper.” (People v. Carmony (2004) 33 Cal.4th 367, 378.) In deciding whether to


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strike a prior conviction, the court “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.” (Williams, at p. 161.)
       The trial court’s “failure to . . . strike a prior [felony] conviction allegation is
subject to review under the deferential abuse of discretion standard.” (Carmony, supra,
33 Cal.4th at p. 374.) A trial court abuses its discretion when it refuses to strike a prior
felony conviction only in limited circumstances, such as where the court is unaware of its
discretion to dismiss or considers impermissible factors in refusing to dismiss, or if the
sentencing norm under the three strikes law leads, as a matter of law, to an arbitrary,
capricious, or patently absurd result under the circumstances of the individual case. (Id.
at p. 378.) It is not sufficient to show that reasonable people might disagree about
whether to strike a prior conviction. (Ibid.) “[A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (Id. at p. 377.)
       We find the trial court did not abuse its discretion in refusing to strike defendant’s
prior conviction. In ruling on defendant’s Romero motion, the court stated it had
considered the probation report as well as reviewed counsels’ written briefs laying out the
various factors to consider under Romero. The court also considered a letter written by
defendant. The court refused to disregard the strike prior, concluding defendant did not
fall outside the spirit of the three strikes law. After considering defendant’s lengthy
criminal history, the court ruled defendant’s nearly unbroken chain of criminality
warranted denying the motion.
       It is plain the court was aware of its discretion and did not use any impermissible
factor in reaching its decision. Nor can we say that following the sentencing norms

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established by the three strikes law led, in this matter, to a result that was arbitrary,
capricious, or patently absurd given defendant’s extensive criminal history. Defendant
fell squarely within the ambit of the three strikes law as it then existed, and the trial
court’s decision against striking the prior conviction for purposes of sentencing was well
within its discretion.
       Defendant’s contention that the trial court may have been misinformed about the
felony or misdemeanor status of one of defendant’s numerous prior convictions does not
convince us otherwise. During the hearing on defendant’s Romero motion, the trial court
did not specifically reference the 2011 Sacramento County conviction of which defendant
complains. Instead, the court focused on the totality of defendant’s criminal history,
stating: “Well, I must tell you in many ways this is difficult, but, Mr. Carroll, the
problem we face is your history. I have rarely seen such a history: Page after page after
page of criminal conduct.” Even assuming, without deciding, that the 2011 Sacramento
County conviction was a misdemeanor, we cannot say on this record that the trial court
was laboring under any misunderstanding regarding defendant’s nearly 25-year criminal
history, which essentially continued unbroken from 1987 until he was arrested in 2011 on
the charges of which he was convicted in this case.

                                         DISPOSITION
       The judgment is affirmed.


                                                          HULL                   , Acting P. J.


We concur:


      ROBIE                  , J.


      MURRAY                 , J.


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