Filed 2/26/14 P. v. Sterling CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B249431

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA085335)
         v.

QUINN D. STERLING,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Scott T.
Millington, Judge. Affirmed.
                                                         ______
         Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
                                                         ______
       As relevant, an information, filed on October 11, 2012, charged Quinn D. Sterling
with the attempt to burn property (Pen. Code, § 455, subd. (a)1) and the arson of property
(§ 451, subd. (d)). The information specially alleged that Sterling had a prior serious or
violent felony conviction for criminal threats (§ 422) that qualified as a strike under the
“Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that as a serious
felony subjected him to a five-year enhancement under section 667, subdivision (a).
The information also specially alleged that Sterling had served six prior prison terms
within the meaning of section 667.5, subdivision (b).
       After trial, the jury found Sterling guilty of arson of property. It was unable to
reach a verdict on the charge of attempt to burn property, and the trial court declared a
mistrial as to, and then later dismissed, that count. Based on Sterling’s admissions that
his prior criminal threats conviction qualified as a strike under the Three Strikes law and
subjected him to the section 667, subdivision (a)(1), enhancement and that he had
served five prior prison terms pursuant to section 667.5, subdivision (b), the court
found those special allegations true. The court sentenced Sterling to a state prison
term of 7 years 8 months, consisting of the low term of 16 months for the arson of
property, doubled pursuant to the Three Strikes law, plus five years for the section 667,
subdivision (a), enhancement. The court struck the five prior-prison-term enhancements
under section 667.5, subdivision (b).
                                        DISCUSSION
1.     Substantial Evidence Supports Sterling’s Conviction for Arson of Property
       Sterling contends the evidence is insufficient to support the jury’s determination
that he was the perpetrator who set fire to his girlfriend Teneka Berry’s car so as to
uphold his conviction for arson of property. We disagree.
       In reviewing a challenge to the sufficiency of the evidence, we “consider the
evidence in a light most favorable to the judgment and presume the existence of every
fact the trier could reasonably deduce from the evidence in support of the judgment.

1
       Statutory references are to the Penal Code.

                                              2
The test is whether substantial evidence supports the decision, not whether the evidence
proves guilt beyond a reasonable doubt. [Citations.]” (People v. Mincey (1992) 2 Cal.4th
408, 432, fn. omitted.) Substantial evidence is that which is “reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
       As the trial court instructed the jury pursuant to CALCRIM No. 1515, the crime of
arson of property requires proof that (1) the defendant set fire to or burned property; and
(2) he acted willfully and maliciously. Under the instruction, “[t]o set fire to or burn
means to damage or destroy with fire either all or part of something, no matter how small
the part. [¶] Someone commits an act willfully when he does it willingly or on purpose.
[¶] Someone acts maliciously when he intentionally does a wrongful act or when he acts
with the unlawful intent to defraud, annoy, or injure someone else. [¶] Property means
personal property or land other than forest land.”
       Substantial evidence supports the jury’s finding that Sterling committed the crime
of arson of property. According to the evidence, on August 18, 2012, Berry lived in an
Inglewood apartment with Sterling, their son, her mother and her daughter from a prior
relationship. During the afternoon into the evening that day, Berry held a picnic at a park
to celebrate her daughter’s impending move to San Francisco for college. The father of
Berry’s daughter was at the picnic and gave Berry a hug. After the picnic, once back at
the apartment, Sterling and Berry argued about the hug. As the argument continued,
Sterling and Berry went out the back of the apartment, and Berry ultimately told Sterling
to leave. According to a detective, Berry reported that before Sterling left he told her
“‘[y]ou’ll see.’” The detective also testified that Berry’s daughter reported seeing
Sterling later that night taking a lighter to a newspaper while standing by the security
door of the apartment. The detective said Berry’s daughter told her mother what she had
seen, and Berry called 911. The report of the 911 call indicates that Berry said she
needed assistance because her ex-boyfriend, whom she identified by name as Sterling,
was “trying to burn [her] apartment down.”



                                              3
       Officers who responded to the call saw a fire burning in the front passenger seat of
a vehicle, determined to be Berry’s, parked on the street near Berry’s apartment. The
vehicle’s windshield was broken. One of the officers obtained a fire extinguisher and put
out the fire through an open rear passenger window. After extinguishing the fire, the
officer saw a burned sock and a piece of paper on the front passenger seat of the vehicle.
The detective opined that the sock and piece of paper were used to intentionally set a fire
inside the vehicle. Berry reported to the detective that at some point she received a text
from Sterling saying, “‘I’m for you. Please talk to me because your car is on fire.’”
Another text from Sterling reported by Berry stated that Sterling had had a “crazy man
burn the car.” At trial, Berry denied receiving these texts, and she never turned them
over to the detective, telling him that she had lost her phone.
       Through the testimony of an investigating officer and Sterling’s former girlfriend,
who is the mother of two of his children, evidence also was elicited that in 2002 Sterling
and the former girlfriend had an argument, the former girlfriend asked Sterling to leave
the house and then Sterling attempted to set fire to the former girlfriend’s car.
       Sterling relies on contradictions between Berry’s and her daughter’s trial
testimony, in which they minimized their observations on the night of the incident, and
their prior statements during the investigation, which Sterling says were “made in anger,”
to assert that the evidence is not sufficient to support the conviction. But the jury heard
all the evidence, including the contradictions, and reached its own conclusion. We are
unable to reweigh the evidence to reach a different conclusion. (People v. Ochoa (1993)
6 Cal.4th 1199, 1206.)
2.     The Trial Court Did Not Abuse Its Discretion by Declining to Strike Sterling’s
       Prior Strike Conviction for Criminal Threats
       Sterling contends the trial court abused its discretion by declining to strike his
prior strike conviction for criminal threats so that he could avoid sentencing under the
Three Strikes law. Again, we disagree.
       Section 1385, subdivision (a), authorizes a trial court to exercise its discretion to
dismiss a defendant’s prior serious or violent felony conviction. (People v. Superior


                                              4
Court (Romero) (1996) 13 Cal.4th 497, 529-530.) The court’s discretion, however, is
limited. (Id. at p. 530.) “[T]he 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 [Three Strikes] scheme’s spirit, in
whole or in part . . . .” (People v. Williams (1998) 17 Cal.4th 148, 161.) Absent an
affirmative disclosure on the record to the contrary, we presume a court considered all
pertinent factors in determining whether to dismiss a prior serious or violent felony
conviction. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
       Sterling argues that, in declining to strike his prior strike conviction, the trial court
“exhibited a prohibited antipathy toward [him] and neglected and failed to consider,
under section 1385, [him] as an individual. [Sterling’s] personal and criminal history,
both past and current, makes the record for an individual who falls outside the spirit
of the ‘strike[]’ system and the court in an abuse of discretion ignored that history.”
According to Sterling, the court failed to sufficiently account for his significant
psychiatric history, which resulted from his mother’s use of drugs while she was pregnant
with him, his involvement in the foster care system as a child based on his mother’s drug
use, abuse within that system and his father’s failure to meet him until he was 10 years
old. Sterling essentially argues that his mental health issues mitigated his culpability by
affecting his ability to be productive in society. (See Cal. Rules of Court, rule
4.423(b)(2) [mental condition is a mitigating factor in sentencing if it “significantly
reduced culpability for the crime”].)
       In deciding whether to strike the prior strike conviction, the trial court
acknowledged that Sterling’s “overall background” “is in his favor,” sympathized with
the circumstances Sterling faced growing up and as an adult, as identified in his motion to
strike his prior strike conviction, and stated that “it’s a horrific way to be brought up and
very unfortunate.” Nevertheless, considering “the seriousness of the present offense,” its
similarity to the incident in 2002 in which Sterling attempted to set fire to his former
girlfriend’s car, his failure to learn from the first incident and repetition of the same

                                               5
behavior, the recentness of the 2011 strike and the fact that he was on parole for that
offense when he committed the current offense, the court found Sterling was not outside
the spirit of the Three Strikes law under Romero, supra, 13 Cal.4th at pages 529-530.2
Contrary to Sterling’s contention, therefore, the court did consider his mental health
issues but determined that they, based on an evaluation of the totality of Romero factors,
did not warrant striking the prior strike conviction. Such a decision was not an abuse of
discretion. (People v. Carrasco (2008) 163 Cal.App.4th 978, 994 [trial court’s express
consideration of defendant’s background and character when defendant argues that his
mental illness is grounds to dismiss a prior strike conviction demonstrates proper
understanding of Romero discretion and court need not place greater weight on mental
illness than on other relevant criteria].)3




2
        Sterling has an extensive criminal record, as both a juvenile and an adult, spanning
more than 15 years. He has three juvenile adjudications, two for attempting to take a
vehicle without the owner’s consent and one for burglary, as well as numerous
convictions as an adult, including inflicting corporal injury on a spouse or cohabitant,
burglary, battery and criminal threats. The criminal threats conviction, which is the prior
strike, is from March 30, 2011, and Sterling was on parole for that offense when he
committed the current offense.
3
       Although the court did not dismiss Sterling’s prior strike conviction, it did rely on
his mental health issues to impose the low term of 16 months for the current offense of
arson of property. In addition, the court struck the five prior-prison-term enhancements
under section 667.5, subdivision (b).


                                              6
                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED.




                                               ROTHSCHILD, Acting P. J.
We concur:



             CHANEY, J.



             MILLER, J.*




*
        Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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