Filed 7/27/15 P. v. Floyd 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)



THE PEOPLE,                                                                                  C076236

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F07539)

         v.

JAMES EDWARD FLOYD,

                   Defendant and Appellant.




         A jury convicted defendant James Floyd of one count of first degree residential
burglary and one count of contempt of court for violation of a protective order, a
misdemeanor. The court found true an allegation that defendant had suffered a prior
conviction for first degree burglary. The trial court denied defendant’s Romero1 motion
to strike his prior felony conviction, and sentenced defendant to a total of 13 years in
prison. The court doubled the midterm for burglary pursuant to Penal Code section 667,




1   People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

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subdivision (e)(1), sentencing defendant to eight years in prison.2 The trial court also
imposed a five-year enhancement pursuant to section 667, subdivision (a)(1) for the prior
conviction for a serious felony.
        Defendant argues the trial court abused its discretion in denying his Romero
motion. We shall affirm the judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
        The present burglary conviction arose out of an incident on October 20, 2013, at
the apartment of Nabresha Gethers, defendant’s onetime girlfriend and mother of his
child. They had known each other since 2009, and during their time together Gethers
worked as a prostitute, giving all of her earnings to defendant.
        Around August 2011, when they were living in Los Angeles, defendant and
Gethers had an argument and hit each other. The police were called, defendant was
arrested, and the court issued a restraining order against him.
        Their son was born in 2012. Gethers’s relationship with defendant was on-and-off
during that time. After the baby was born, Gethers did not want to be with defendant,
and stopped working as a prostitute because she wanted a better life for her son.
However, defendant kept calling Gethers because he wanted to be with her and with his
son. He would go to Gethers’s parents’ house and honk his horn in the middle of the
night, or break Gethers’s windshield out if she did not let him see his son.
        Gethers did not call the authorities every time defendant showed up at her
apartment because she was afraid of being evicted. But she called the sheriff on October




2   Further statutory references to sections of an undesignated code are to the Penal Code.

  Section 667, subdivision (e)(1) provides: “If a defendant has one prior serious and/or
violent felony conviction as defined in subdivision (d) that has been pled and proved, the
determinate term or minimum term for an indeterminate term shall be twice the term
otherwise provided as punishment for the current felony conviction.”

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18, 2013. She complained that defendant was knocking on her door and peeking in her
windows. She told the officers that she had a restraining order against defendant.
Defendant was not at the apartment when sheriff’s deputies arrived; however, they
returned about 1:00 a.m., saw defendant standing in front of the apartment, and arrested
him.
       The next day, October 19, 2013, defendant sent a series of text messages around
4:00 p.m. In order, they said: “Somebody left a bike in your house. You might get
evicted today. All over. Told them to come down here. Let’s see who’s ready to die for
you. Why are you crying? What’s wrong?” At some point, defendant also texted
Gethers pictures of her personal property, including her watch, jeans, purse, Social
Security card, and her son’s Social Security card.
       When Gethers went to her apartment on October 20, 2013, she found the
apartment had been flooded. The front windows were all open and the screens were off.
Everything that had been in her closet was strewn around her living room. Her papers
and mail were in her bathtub. Defendant’s prints were found on the exterior master
bedroom window, the exterior kitchen window, and the exterior living room window.3
                                      DISCUSSION
       Defendant argues the trial court abused its discretion when it denied his motion to
strike his prior strike pursuant to his Romero motion. He argues that imposition of the
strike enhancement was “overkill.”
       Defendant’s prior strike was a first degree burglary conviction from San Francisco
County. The San Francisco Superior Court indicated the original docket could not be
located, so little is known of the underlying facts. Defendant received probation for the



3  The jury found defendant not guilty of a second count of first degree residential
burglary and one count of harassment. The factual background does not focus on these
allegations.

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burglary. Defendant’s California Law Enforcement Telecommunications System
(CLETS) printout, or certified rap sheet, showed arrests and detentions beginning in
1996, when defendant was a juvenile. Over 60 incidents were listed.
       Failure to strike a prior conviction allegation is subject to review under the
deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367,
374.) “‘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.] Concomitantly, ‘[a] decision will not be reversed
merely because reasonable people might disagree. “An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial judge.”
[Citations.]’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
977-978.) We will not conclude that the trial court abused its discretion unless its
decision was “so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony, supra, at pp. 376-377.)
       A claim that the trial court abused its discretion in failing to strike a prior felony
conviction will succeed only in limited circumstances. (People v. Carmony, supra, 33
Cal.4th at p. 378.) Such circumstances include situations where the trial court is not
aware of its discretion to dismiss, or where it considered impermissible factors in refusing
to dismiss. (Ibid.) “Where 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.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
       The factors to be considered by the trial court are, “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

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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.) Only if these
factors “manifestly support the striking of a prior conviction and no reasonable minds
could differ” does the failure to strike constitute an abuse of discretion.” (People v.
Carmony, supra, 33 Cal.4th at p. 378.)
       The trial court considered the nature and circumstances of defendant’s present
felony when it stated: “The specifics of the crimes themselves, they are quite serious, I
get the point. But there are first-degree burg[larie]s and there are first-degree
burg[larie]s. And this is not one of the -- there are a lot of peculiar aspects to these, as I
think you would agree. [¶] . . . [¶] . . . And they are not classic first-degree burg[larie]s.”
       The trial court considered the prior serious felony when it stated: “I think it’s
unfortunate that he didn’t get prison on the San Francisco burg[lary] because that might
have gotten his attention in a way that obviously probation didn’t. And typically it’s an
unusual case where we don’t impose prison for a first-degree burglary. That is the
intended -- that is the presumptive sentence that the Legislature has declared.”
       The trial court considered defendant’s background, character, and prospects when
it stated: “. . . I very much have in mind the continuing offenses throughout his life,
mostly relatively low-level felonies and a number of misdemeanors. . . . [¶] . . . [¶] The
reason I’m not granting your Romero motion and striking the strike is because of Mr.
Floyd’s continued intersection with the criminal justice system, one felony or
misdemeanor after another, and as I just said, a lot of them weren’t all that serious
compared to what we often see, but they were getting increasingly serious, and that is one
of the issues. And they are kind of unremitting; they just keep happening. [¶] Mr. Floyd
has established a history in the criminal justice system that is exactly within the ambit of
what the [L]egislature and the People intended when Three Strikes was passed. . . . I
sometimes strike strikes, Mr. Floyd, but in this case, you are just not a good candidate for

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that. You are what the [L]egislature and the People of the State of California intended to
benefit from the Three Strikes Law.”
       We cannot say that these factors manifestly support the striking of the prior
convictions, and that reasonable minds could not differ on the question. Therefore, there
was no abuse of discretion.
                                       DISPOSITION
       The judgment is affirmed.



                                            BLEASE                    , Acting P. J.


We concur:


         NICHOLSON                 , J.


         MURRAY                    , J.




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