Filed 12/23/14 P. v. Carriere CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B251254

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA401417)
         v.

KEITH CARRIERE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Craig Elliott Veals, Judge. Affirmed.


         Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Shawn McGahey Webb and Garett A. Gorlitsky, Deputy Attorneys General, for
Plaintiff and Respondent.


                                        _________________________
       A jury convicted appellant Keith Carriere of first degree burglary with a person
present, a felony (Pen. Code, § 459).1 In a bifurcated trial, the trial court found true the
allegations that appellant had suffered five previous serious felonies (§ 667, subd. (a)(1));
five prior strikes (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), and served six prior
prison terms (§ 667.5, subd. (b)). The trial court sentenced appellant to 50 years to life in
state prison as follows: 25 years to life for the burglary, plus five years for each serious
felony prior, for an additional 25 years to run consecutively. “[F]or sentencing
purposes,” the court struck each of the one-year prison priors.
       Appellant contends the trial court abused its discretion in failing to strike his five
prior strike convictions. We disagree and affirm.2
                                           FACTS
Prosecution Case
       Appellant and Evelyn Jones (Jones) lived in the same apartment complex on East
Seventh Street in Los Angeles, which had surveillance cameras in the hallways. In the
early morning hours of August 13, 2012, Jones and her boyfriend were asleep in her
apartment. Jones woke up around 3:00 a.m., ate some food, and opened the apartment
door for fresh air. She went back to sleep and woke up again at 6:00 a.m. When she
went to the bathroom, she noticed that her CD player was missing. Jones asked her
boyfriend about it. He said he thought it was still in the bathroom. When he started to
roll back over in bed, Jones “told him to get out because he wasn’t concerned [with] what
was going on.”
       Jones went down to the courtyard and started yelling that someone had stolen her
property. At some point before 8:00 a.m., Jones went back to her apartment and noticed
that her cell phone was missing from the top of her dresser.



1
       All further statutory references are to the Penal Code unless otherwise indicated.
2
       Appellant has filed a petition for writ of habeas corpus, case No. B255124, which
is considered concurrently with this appeal. A separate order will be filed in that matter.

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       When the property manager arrived, Jones told him what had happened. At some
point, appellant walked up and said that he had bought the missing items from someone
on the street. He told Jones that he sold her cell phone, but still had her CD player. Jones
followed appellant to his apartment, and he gave her back her CD player. She never
recovered her cell phone.
       Jones and the property manager reviewed the surveillance video from the hallway
camera near Jones’s door, which was played for the jury. The video showed appellant
walk past Jones’s door at around 3:00 a.m., return to her door, and then enter her
apartment with nothing in his hands. The video then showed appellant leaving Jones’s
apartment at approximately 3:08 a.m. According to the property manager, appellant
appeared “to be closing the door again in a very soft, quiet manner, and you see there is
something in his left hand.”
       At approximately 3:10 a.m., appellant was seen again on the video. The property
manager testified that “You see him peaking [sic] through the door.” Appellant reentered
the apartment with nothing in his hands and left about five seconds later with “something
in his right hand.” Jones explained, “It wouldn’t take but a few steps to get from my door
to where my dresser is because my place is so small.” The property manager agreed that
Jones’s apartment is “very small.”
       When police officers arrived at the apartment complex, Jones was upset and told
them that appellant had returned her radio and had told her, “Tell the property manager
not to play the camera or the video surveillance.” The officers watched the video,
arrested appellant and took him to the police station. After appellant was read his rights,
he told the officers that Jones’s boyfriend sold him the radio for two dollars, and that he
told Jones, “Don’t play the video camera. I will give you back the radio. I just don’t
know where the cell phone is at.” Appellant refused to talk about the cell phone, stating
that he did not remember anything about the phone.
       Jones had convictions for selling cocaine in 2008 and 2009 and soliciting
prostitution in 2012. While Jones occasionally used cocaine, she was not under the

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influence of any drugs the night of the burglary. Jones knew that her boyfriend did not
get out of bed at around 3:00 a.m. because he would have had to climb over her and she
would have awakened. Her boyfriend had never stolen from her in the six to seven years
they had been together.
Defense Case
       Appellant testified that he occasionally spoke to Jones in passing and had
previously sold her drugs. Appellant did not know Jones’s boyfriend, but had seen him
with Jones. Appellant stated that on the night of the incident he was “cooperating for”
his wife by cleaning the dishes and the can opener fell in the trash. His “intent was to get
the can opener out, but things altered [his] course of things.” He went to the fourth floor
trash room to empty the trash and found the can opener, which he put in his pocket. As
he passed by Jones’s apartment, he heard her boyfriend say, “Hey, hey,” and “You got
anything?” The boyfriend was referring to drugs. Appellant said no, and that it was too
late to get anything. The boyfriend then said, “Look, well, let me—let me pawn you this
radio.” Appellant responded that he did not need a radio. The boyfriend insisted, “Let
me pawn it to you and I will get it back in the morning. I just need you to give me
something to wake me up.” Appellant complied.
       Later that morning when appellant heard Jones yelling, he told her that he had her
belongings “[b]ecause the dude gave it to me.” Appellant took Jones to his apartment,
gave her the CD player, and said, “Look, look at all my stuff, girl. You know I don’t
need this.” Jones asked why her boyfriend gave appellant the CD player, and appellant
responded, “Come on. You already know.” Then appellant and Jones left his apartment.
Appellant had his own CD player and two cell phones.
       On cross-examination, appellant admitted there was a trash room on his floor, the
second floor, but he decided to use the trash room on the fourth floor. The second time
appellant went into Jones’s apartment, her boyfriend offered him a cell phone, which
appellant did not take.



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                                       DISCUSSION
       Appellant contends the trial court abused its discretion by refusing to strike his
five prior strike convictions.
       When a trial court denies a defendant’s motion to dismiss a prior strike received
under the Three Strikes law, it does not abuse its broad discretion “unless its decision is
so irrational or arbitrary that no reasonable person could agree with it.” (People v.
Carmony (2004) 33 Cal.4th 367, 377.) “It is not enough to show that reasonable people
might disagree about whether to strike one or more of his prior convictions. 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 party challenging the court’s ruling under section 1385 has the burden to
show an abuse of discretion.3 (People v. Jordan (1986) 42 Cal.3d 308, 316; People v.
Carmony, supra, 33 Cal.4th at p. 377; People v. Romero (2002) 99 Cal.App.4th 1418,
1433–1434.) “‘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.’” (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977–978.) The reviewing court also must presume the
trial court considered all of the relevant factors in the absence of an affirmative record to
the contrary. (People v. Myers, supra, 69 Cal.App.4th at p. 310.)
       When ruling on whether to strike a prior conviction under the Three Strikes law or
in reviewing such a ruling, “the court in question 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


3
       Section 1385, subdivision (a) provides in part that a “judge or magistrate may,
either of his or her own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.”
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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.)
       Our Supreme Court has explained that the 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, supra, 33 Cal.4th at p. 378.) It is only in
an “extraordinary” case that a career criminal can be deemed outside the spirit of the
Three Strikes law; “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.” (Ibid.)
       Here, the trial court did not abuse its broad discretion in refusing to strike
appellant’s five prior strike convictions. These strikes are for: (1) robbery (§ 211) in
1977; (2) kidnapping to commit robbery (§ 207) in 1981; (3) robbery (§ 211) in 1983;
(4) robbery (§ 211) in 1990; and (5) assault on a peace officer (§ 245, subd. (c)) in 2005.
Appellant was on parole when he committed the current offense. The record shows that
in the last 30 years, appellant has never been free from prison for more than five years,
and has never successfully completed probation or parole. Appellant’s last two strike
convictions qualified him for Three Strike sentences but he was able to obtain lesser
terms via plea bargains. In both instances, appellant committed additional crimes upon
his release from prison. Clearly, appellant is a career criminal for whom all prior
attempts at rehabilitation and deterrence have failed. His record of unrelenting
recidivism makes him exactly “the kind of revolving-door career criminal for whom the
Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320;
People v. Pearson (2008) 165 Cal.App.4th 740, 749; People v. Humphrey (1997) 58
Cal.App.4th 809, 813.)



                                              6
       Moreover, appellant’s commission of the current offense also demonstrates that
the trial court did not abuse its discretion. Appellant’s current offense of residential
burglary with a person present is a “violent felony.” (§ 667.5, subd. (c)(21).) Jones’s
apartment was small, so appellant was aware there were people present when he
burglarized it. Indeed, the surveillance video shows that he was inside the apartment the
first time for eight minutes. His entering the apartment a second time evidences his
deliberateness. As the People note, appellant had an opportunity to reflect on his criminal
behavior, but still made the decision to go forward with his criminal objective. Further,
appellant entered the apartment in the early morning hours when Jones was asleep and
particularly vulnerable. Appellant later told Jones not to look at the video. Appellant
refused to take responsibility for his actions; he lied on the witness stand and put the
blame on Jones’s boyfriend.
       Appellant argues that the trial court erroneously believed that it lacked discretion
to strike his prior strike convictions. But appellant quotes the trial court out of context.
The record reflects the court understood it had discretion, but it believed that appellant’s
“substantial” and “unrelenting” criminal history did not justify using that discretion. The
court also stated, “I am looking at the rap sheet, 1, 2, 3, 4, 5, 6, 7, 8, 9 pages of entries.
And they are serious offenses that are all through it. So yes, I guess in the strictest sense
the court has discretion, but I think it would be an abuse of discretion for me to strike any
of the strikes.”
       Appellant argues that he falls outside the spirit of the Three Strikes law for several
reasons. First, he merely notes that prior to trial he was offered a nine-year plea deal.
But he says nothing further on this subject. We note that in its sentencing memorandum,
the People asked for the maximum sentence.
       Second, appellant asserts that his prior strikes are “remote.” But his criminal
history shows that he has led a continuous life of crime. “Where, as here, the defendant
has led a continuous life of crime after the prior, there has been no ‘washing out’ and
there is simply nothing mitigating about a 20-year-old prior. Phrased otherwise, the

                                                7
defendant has not led a ‘legally blameless life’ since the 1976 prior. [Citations.] Far
from being ‘washed out,’ this prior was ‘dyed in.’” (People v. Humphrey, supra, 58
Cal.App.4th at p. 813.)
       Third, appellant describes his current offense as a “minor theft offense” and
asserts that it “did not result in any physical injury or violence” and that he “did not
possess or use a weapon.” But as previously noted, residential burglary with a person
present is a violent felony under the Three Strikes law. (§§ 667.5, subd. (c)(21), 667,
subd. (d)(1).) There is nothing “minor” about it. Moreover, the alleged “nonviolent or
nonthreatening nature of the [current] felony cannot alone take the crime outside the
spirit of the law.” (People v. Strong (2001) 87 Cal.App.4th 328, 344.)
       Fourth, appellant asserts that the property taken was of “small value” and he
“believed he had a claim to the property.” But the small value of the stolen property did
not prevent his offense from constituting a violent felony. And Appellant’s assertion that
he believed he had a claim to the property is disingenuous; appellant was caught on video
burglarizing the apartment.
       Fifth, appellant points out that he has a history of mental illness, which he claims
should mitigate his sentence. It is true that the probation report states appellant has been
in and out of Patton State Mental Hospital. But there is no evidence in the record that
appellant’s mental health issues had anything to do with the current offense. Indeed, the
probation report states that the current offense “does not appear to be related to the
defendant’s document[ed] mental health problems.”
       Sixth, appellant simply notes that he is 55 years old. But “middle age, considered
alone, cannot take a defendant outside the spirit of the law; otherwise, the very factor that
takes a defendant within the spirit of the law—a lengthy criminal career with at least one
serious or violent felony—would have the inevitable consequence—age—that would
purportedly take him outside it.” (People v. Strong, supra, 87 Cal.App.4th at p. 332.)




                                              8
       Finally, appellant asserts that he has a supportive girlfriend, was involved in
religious activities, and was a student in community college. But none of these positive
aspects in his life prevented him from reoffending while on parole once he saw an open
door in his own apartment building.
       Given appellant’s substantial criminal history, the nature of the current offense, his
inability to stay out of criminal trouble, and the lack of mitigating circumstances, the trial
court did not abuse its discretion in refusing to strike appellant’s five prior strike
convictions in the furtherance of justice. As the trial court stated, appellant is “the poster
child for the Three Strikes Law.”
                                       DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                            __________________________, J.
                                                  ASHMANN-GERST


We concur:



_____________________________, P. J.
           BOREN



____________________________, J.
           CHAVEZ




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