Filed 5/12/16 P. v. Williams CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069913
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1458764)
                   v.

PAMELA LYN WILLIAMS,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A.
McFadden, Judge.
         James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
       Defendant Pamela Lyn Williams was convicted by jury trial of robbery (Pen.
Code, § 211).1 The trial court found various allegations true, including a prior strike
conviction allegation (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant
requested that the trial court strike her prior strike conviction pursuant to section 1385
and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court
denied the request and sentenced her to a total of 14 years in prison as follows:
three years, doubled to six years due to the prior strike conviction, plus a five-year
enhancement for a prior serious felony (§ 667, subd. (a)), and a two-year enhancement
for being out on bail when she committed the crime (§ 12022.1). On appeal, she
contends the trial court abused its discretion in declining to dismiss her prior strike
conviction. We affirm.
                                           FACTS
       On April 22, 2013, at about 6:00 p.m., the victim and his friend entered a gas
station store in Modesto. As they did, they noticed defendant sitting in the driver’s seat
of a car with three men standing around her open window. In the store, the victim bought
two cans of beer, and then he and his friend left. As they walked past the car defendant
was sitting in, she asked the victim what was going on and where the weed was. The
victim said he was really busy and had to go. He continued walking. Defendant raised
her voice and repeatedly asked the victim why he was being so rude. The victim
answered he was not being rude, but was just in a hurry.
       As the victim and his friend continued walking, defendant started the car and
pulled directly in front of the victim. When he turned to walk the other direction, she
backed up the car to stop him. Then she got out of the car and asked him why he was
being so rude and what he had with him. She was aggressive and seemed irritated. She


1      All statutory references are to the Penal Code unless otherwise noted.


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came five or six inches from his face and said, “‘Give me what you got, I want to know
what you got.’” She started grabbing him, patting him down, and reaching into his
pockets. He feared for his safety. While cursing and screaming at him, she snatched his
wallet out of his hand, took his keys out of his jacket pocket, and grabbed the grocery bag
containing the two beers he had just bought. She got back in the car and drove back
toward the gas station.
       At some point, she entered the gas station store and disposed of the victim’s wallet
behind a candy display. The wallet was recovered. When officers searched defendant’s
car, they found the victim’s keys and two beers.
                                       DISCUSSION
I.     Law
       Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if
the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at
pp. 529-530.)2 A defendant bears the burden of clearly showing the trial court’s decision
not to do so was arbitrary or irrational. Absent such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, at
pp. 376-377.)
       “‘A court’s discretion to strike [or vacate] prior felony conviction allegations [or
findings] in furtherance of justice is limited. Its exercise must proceed in strict
compliance with … section 1385[, subdivision] (a).’” (People v. Williams (1998)
17 Cal.4th 148, 158.) The Three Strikes law “was intended to restrict courts’ discretion
in sentencing repeat offenders.” (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia
(1999) 20 Cal.4th 490, 501 [“a primary purpose of the Three Strikes law was to restrict


2      A defendant’s request for this type of leniency is commonly referred to as a
“Romero motion,” although defendants do not actually have a right to make motions
under section 1385, subdivision (a). (People v. Carmony (2004) 33 Cal.4th 367, 375, 379
(Carmony).)


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judicial discretion”].) The Three Strikes law establishes “‘a sentencing requirement to be
applied in every case where the defendant has at least one qualifying strike,’” unless the
sentencing court finds a reason for making an exception to this rule. (Carmony, supra,
33 Cal.4th at p. 377.) There are “stringent standards that sentencing courts must follow
in order to find such an exception.” (Ibid.) In order to dismiss a prior strike conviction,
“the court in question must consider whether, in light of the nature and circumstances of
[the defendant’s] 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, supra, at p. 161.)
       “[A] trial court will only abuse its discretion in failing to strike a prior felony
conviction allegation in limited circumstances. For example, an abuse of discretion
occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or
where the court considered impermissible factors in declining to dismiss [citation].
Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter
of law,] produce [] an “arbitrary, capricious or patently absurd” result’ under the specific
facts of a particular case. [Citation.] [¶] But ‘[i]t is not enough to show that reasonable
people might disagree about whether to strike one or more’ prior conviction
allegations…. 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. Of course, in such an
extraordinary case—where the relevant factors … manifestly support the striking of a



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prior conviction and no reasonable minds could differ—the failure to strike would
constitute an abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 378.)
II.    Background
       In 2001, defendant was convicted of first degree robbery (§ 212.5) and was
granted three years’ probation. In 2003, she was convicted of first degree burglary
(§ 459) and was sentenced to two years in prison, doubled to four years due to her 2001
prior strike conviction. In 2007, she was convicted of petty theft with a prior (§ 666) and
second degree burglary (§ 459), and was sentenced to two years in prison. In 2010, she
was convicted of possession of stolen property (§ 496, subd. (d)) and was sentenced to
16 months in prison.3
       In defendant’s Romero motion, she argued that the current robbery included no
violence, no threats, and no weapons. She further argued that her 2001 prior strike
conviction was remote in time, and her more recent crimes had been theft and drug
convictions that were not serious or violent.
       The People’s opposition listed defendant’s criminal history (with no citation to the
source of this information) as follows: A 2001 section 212.5 felony (the prior strike
conviction), a 2002 section 240 misdemeanor, a 2003 section 459 felony, a 2007
section 23152 misdemeanor, a 2007 section 666 felony, a 2007 section 459 felony, a
2010 section 496 felony, a 2011 parole violation, a 2012 section 666 felony pending case,
a 2013 section 11377 felony pending case, a 2013 section 666 felony pending case, and a
2013 section 4573.6 felony pending case.
       The People argued that defendant had a long and continuous criminal record
dating back to the 2001 strike conviction; had been convicted of four additional felonies
with prison sentences; had been convicted of two misdemeanors, including driving under


3      The information in this paragraph is taken from documents from the
section 969(b) package introduced to prove the prior conviction allegations.


                                                5
the influence and assault; and had four currently pending felony cases, some of which
had occurred since the current offense. Defendant had been in and out of prison, and she
had led a continuous life of crime. Her continued criminal conduct showed she was
unwilling or unable to refrain from illegal conduct for any significant time.
       The People also noted that defendant’s prior convictions were primarily theft
related. In describing the 2001 robbery, the People cited a Modesto Police Report
No. 01-9334 (which apparently is not part of our record), explaining:

       “Defendant and two other subjects forcibly entered the victim’s residence
       by kicking open the front door to the residence. Once inside the residence
       Defendant had her hand in her jacket pocket mimicking holding a gun and
       told the victim, ‘I’m gonna kill you bitch if you don’t give me your shit.’
       As the other two subjects proceeded to go through the victim’s residence
       and collect items to steal, Defendant pinned the victim down and punched
       the victim in the face several times. The officer noticed the victim had
       several bumps and bruises around the areas where the victim said
       Defendant punched her.”
       As for the current offense, the People noted that defendant’s conduct involved
violence in that she forcibly snatched the victim’s wallet, keys, and groceries from the
victim’s hands and pocket.
       At the hearing on the motion, both parties submitted on their moving papers.4 The
court then denied the motion as follows:

             “All right. Well, the Court had considered the motion by [defense
       counsel], and, you know, the Court did hear the evidence in this case.

              “The purpose of striking the serious felony prior, though, is
       certainly, as indicated by the People, the Court has this power because in
       certain—when Three-Strikes Law was passed, when the strike law was
       passed, some cases were being—defendants were being sentenced for life
       on stealing a stick of gum or something. So it’s really important that the
       Court exercise its discretion wisely in these cases. When Court considers a

4      Defendant did not object to or challenge the accuracy of the People’s factual
description of her criminal history or of her 2001 robbery, either in the trial court or here
on appeal.


                                              6
       motion to strike a strike, I think looking at the facts of the case are
       important. But also looking at the defendant’s prior criminal history and
       what the strike is for is very important.

              “This case is a robbery case, the fact that we—the facts that we tried
       here. Well, you know, the Court has certainly seen more serious robbery
       cases where people have used more force, more violence and in this case,
       though, the charge is still robbery, and [defendant] was found guilty of the
       robbery charge. The strike offense that was proven here and the strike
       offense that we have before us is from 2001. So it is—it is older. It’s some
       13 years older. It is a robbery. I mean, so it’s—while defendant did
       receive probation in that case, it’s still a very similar type offense.

              “Also, in looking at the defendant’s criminal history, you can say
       that, well, gee, it’s a real old offense, but if a person’s been in and out of
       trouble or been in custody most of the time, a good portion of that time, it’s
       not really that old of an offense. I mean, if someone commits an offense
       and is always in custody, then it doesn’t really add much to say it’s an old
       offense. I mean, you haven’t been able to reoffend really, then.

              “As indicated by the People, [defendant] does have quite a history
       here of continuing law violations and continued illegal conduct. And so
       much of this conduct includes theft offenses.

               “So while, [defense counsel], your Motion to Strike is very well-
       written and you argued as best you can for your client, unfortunately, you
       can’t change her criminal history, and you can’t change that—those facts. I
       think it would be improper for this Court to strike the strike given
       [defendant’s] criminal history here. And the People do point that out that,
       you know, [it would] almost be an abuse of discretion for the Court to do
       [that], because that’s not the purpose of the Court’s discretion in this Three-
       Strikes Law. The voters of this State wanted people to have more
       accountability when they have prior serious felonies in their record. And
       they give the Court the opportunity to strike those priors, but the Court has
       to use its discretion wisely, and I—I don’t think that it would be [in the]
       interest of justice to strike the strike here given the continued criminal
       activity on the part of [defendant], and those are just the convictions here.
       Court’s not even considering the fact that she has several other cases
       pending.

              “So the motion by the defense to strike the strike is denied then.”
III.   Analysis



                                             7
       On appeal, defendant contends the trial court abused its discretion in refusing to
dismiss her 2001 strike conviction because it was remote in time and because her only
other criminal history involved theft and drug convictions. She maintains that she has
aged and matured considerably since the prior strike conviction, such that she is now
significantly less likely to reoffend than in 2001. She claims the current offense did not
involve assaultive contact or injury, but was caused by the victim’s rebuke of her attempt
to befriend him. She suggests that, although she was found competent to stand trial, “the
recurrent air of doubt over her competency to stand trial evidences a history of mental
illness which likely fueled her drug use and actions in this case.” For these reasons, she
believes she clearly falls outside the spirit of the Three Strikes law.
       As we have observed before, this is not the extraordinary case imagined by
Carmony, where there can be no doubt that the defendant, although a career criminal,
nevertheless falls outside the spirit of the Three Strikes law. (Carmony, supra, 33 Cal.4th
at p. 378.) Indeed, defendant’s arguments find no support in the record, but rely instead
on her fictional version of the record. Contrary to her claim, she obviously has not
matured enough since her 2001 conviction to prevent her from reoffending because she
has in fact reoffended many times since then. Furthermore, the evidence did not support
her version of the current offense—her benevolent overture of friendship, followed by a
cruel rebuff in response, which caused her to become confrontational, but not assaultive
or violent.5 According to the evidence, she aggressively pursued the victim, blocked his

5      Even if the offense had been nonviolent, this would not have mandated the
granting of defendant’s Romero motion. (See People v. Strong (2001) 87 Cal.App.4th
328, 344 [reversing order granting Romero motion based on nonviolent nature of current
offense because “the nonviolent or nonthreatening nature of the felony cannot alone take
the crime outside the spirit of the law”]; see also People v. Poslof (2005)
126 Cal.App.4th 92, 108-109 [current crime of failing to register as sex offender was
nonviolent; denial of Romero motion was not abuse of discretion]; People v. Gaston
(1999) 74 Cal.App.4th 310, 321 [current crime of car theft was “not as serious as many
felonies” but was “far from trivial”].)


                                               8
path with her car, physically assaulted him, and forcibly stripped him of his valuables.
And finally, the record does not support defendant’s claim of any current or historical
mental illness. She was psychologically examined twice during this case, found mentally
competent, and determined not to be mentally ill or have a history of mental illness. On
October 3, 2013, a psychologist found that “defendant display[ed] no signs or symptoms
of a severe mental disorder” and was “capable of understanding the nature and object of
the proceedings against her and [was] capable of assisting counsel for her defense.” On
December 14, 2013, after reexamining defendant, the same psychologist stated: “As
counsel suspected, [defendant] may have been under the influence of a controlled
substance—Deputy Johnson thought she was yesterday when he had contact with her. Of
course, she was recently caught with methamphetamine in her possession in custody—
she’s had access to methamphetamine. In any event, she is not mentally ill. She has
never been mentally ill. Her problematic behaviors are not the product of a mental
illness. She is capable of understanding the nature and object of the proceedings against
her and is capable of assisting counsel for her defense.”
       In sum, defendant’s criminal record demonstrates she has no intention of
reforming, and continues to pose a serious danger to the community. We cannot say she
falls outside the spirit of the Three Strikes law. The trial court did not abuse its discretion
in refusing to dismiss the prior strike conviction.
                                      DISPOSITION
       The judgment is affirmed.




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