Filed 6/23/15 P. v. Arellano CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR


THE PEOPLE,                                                          B256056

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA102981)
         v.

JESUS ARELLANO,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Robert M.
Martinez, Judge. Affirmed.
         Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant Jesus Arellano pleaded no contest to carrying a dirk or dagger and was
sentenced to a total of four years in state prison. Defendant contends that the court
abused its discretion by declining to strike all of his prior convictions pursuant to Penal
Code section 13851 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero). Finding no abuse of discretion, we affirm.
                           PROCEDURAL BACKGROUND
       Defendant was charged with one count of carrying a dirk or dagger concealed on
his person. (§ 21310.) The information also alleged that defendant previously was
convicted of two serious or violent felonies subjecting him to sentencing pursuant to
sections 667, subdivisions (b) through (j), 1170.12, and 1170, subdivision (h)(3), namely
robbery (§ 211) and carjacking (§ 215), both of which stemmed from a single case in
1997. The information further alleged pursuant to section 667.5, subdivision (b), that
defendant suffered two prior convictions, the 1997 robbery conviction and a 2008
conviction for possession (Health & Saf. Code § 11377, subd. (a)), and did not remain
free of custody during a period of five years subsequent to serving his terms for these
crimes.
       After rejecting the prosecution’s plea offer of 32 months, defendant made an open
plea of no contest on the day his trial was set to begin. He also admitted both his strike
and state prison priors. The court sentenced defendant to the midterm of two years,
which it doubled pursuant to sections 667 and 1170.12. The court struck “all other priors
alleged.”
       Defendant timely appealed.
                              FACTUAL BACKGROUND
       The following events were described by the sole witness at defendant’s
preliminary hearing, Pomona police officer Tim Ugarte. On August 28, 2013, Ugarte and
two or three U.S. Marshals were patrolling a residential area of Pomona in an unmarked
car. Shortly before 10:00 p.m., Ugarte saw defendant on the street, about 50 feet away.


1
       All further statutory references are to the Penal Code unless otherwise indicated.
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Defendant turned and ran away, and Ugarte pursued him on foot. During the chase,
Ugarte saw defendant reach into the pocket of his shorts, pull out an object, and throw the
object to the ground. After apprehending defendant, Ugarte recovered the object, a fixed
four-inch blade fastened to a flashlight by a hardened, glue-like substance.
                                       DISCUSSION
       Defendant contends that the trial court abused its discretion by failing to give any
weight to the mitigating circumstances of his case and strike all of his priors under
Romero.
I.     Applicable Law
       Section 1385, subdivision (a), permits a trial court to dismiss a criminal action “in
furtherance of justice.” This power to dismiss an action “includes the lesser power to
strike factual allegations relevant to sentencing, such as the allegation that a defendant
has prior felony convictions.” (Romero, supra, 13 Cal.4th at p. 504.) In Romero, the
Supreme Court held that section 1385, subdivision (a), is applicable to cases brought
under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). (Romero, supra, at pp. 504,
529-530.)
       In ruling on a defendant’s Romero motion, the trial 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 . . . spirit [of the Three Strikes law],
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 (Williams).) Because the Three Strikes law “establishes a sentencing
norm” and “carefully circumscribes the trial court’s power to depart from this norm [by]
requir[ing] the court to explicitly justify its decision to do 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 light of this
presumption, a trial court will only abuse its discretion in failing to strike a prior felony
conviction allegation in limited circumstances.” (Ibid.) “‘[W]here the record

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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.’” (Ibid., quoting People v.
Myers (1999) 69 Cal.App.4th 305, 310.) We overturn the court’s ruling only if it falls
outside the bounds of reason under the applicable law and relevant facts. (Williams,
supra, 17 Cal.4th at p. 162.)
II.    Relevant Proceedings
       At the sentencing hearing, defense counsel asked the court for a sentence of
probation or “some tree farm.” (See People v. Lee (2005) 131 Cal.App.4th 1413, 1415.)
According to counsel, defendant was enlisted to walk his female guests and their children
home after he and the visitors became unsettled by an unmarked car with blacked-out
windows driving through their “dangerous part of Pomona.” He grabbed the flashlight-
cum-dagger to protect himself and his guests on the short journey. Counsel distinguished
this situation from situations in which “somebody who had a weapon like this and was
walking with a crowded group of people in a crowded area in downtown or had ill intent
to do with it.” Counsel also pointed out that defendant had no gang convictions, had not
committed a serious or violent felony for 17 years, and recently had been awarded
custody of his one-year-old daughter.
       The prosecution acknowledged that “this isn’t the worst crime ever committed,”
and that defendant’s record “isn’t the worst record in the world.” The prosecution
nonetheless asked the court to impose a four-year sentence in light of defendant’s flight
from the police and history of gang affiliation. Neither defendant nor the prosecution
mentioned defendant’s five misdemeanor convictions for driving without a license, which
occurred from 2003 to 2006.
       After examining defendant’s probation report and photographs of the weapon, the
court made the following statement:
       “The court recognizes that it has the discretion to strike priors. The discretion,
however, is limited by an abuse of discretion. In order to justify the striking of priors, the
court has to find unusual circumstances that would promote the interest of justice.

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Defendant stands convicted of two prior serious felonies, one is carjacking, the other is
robbery. That conviction resulted in a six-year term in state prison. The date of
conviction is approximately 1997.
          “Court recognizes that there has been a significant lapse of time since the
commission of those offenses and today’s date; however, the defendant’s violations of
law have continued, although, for the most part, they deal with the operation of a motor
vehicle while unlicensed.
          “In 2008, defendant was charged with possession of a controlled substance,
sentenced to a term of three years. And I can only assume that some court at that
sentencing decided that the interest of justice would be promoted by the striking of a
strike since the term is a three-year state prison term as opposed to a 32-month, four-year,
or six-year term. Again, that resulted in an additional state prison commitment.
          “The court understands that circumstances may be such where one may be in
apprehension for one’s safety or the safety of another and one might resort to a defensive
weapon; however, in examining this weapon, it doesn’t appear to be a spontaneous
grabbing of a weapon but choice of a weapon appears to be a weapon that is designed to
significantly thrust into a person or animal’s body. A lot of people are scared by events
or unusual circumstances and many of them call 9-1-1 for assistance and protection. The
availability and choice of weapon really causes this court some concern.
          “As far as his affiliation or moniker with [gang] Azusa 13, I have no reason to
know whether he is still active; however, I do know that he is now in another jurisdiction
where there are associations and entities of a similar nature that, as a general rule, don’t
get along. I don’t know if he’s living with the consequences of his earlier choices of
lifestyle, but this court does not find any unusual circumstances warranting the striking of
priors.
          “It is the judgment of this court that defendant be sentenced to a mid term [sic] of
two years. That’ll be doubled. All other priors alleged are stricken. In doing so, the court
is of the view that the middle term is commensurate with the offense for which he entered
a plea.”

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       The court allowed defendant to make a statement. Defendant disavowed any gang
membership. He explained that he committed his violent crimes many years ago, when
he was a teenager, and represented that he “never did nothing wrong to anybody else to
hurt anybody” since. He stated that he no longer used drugs and was “just trying to be a
father.”
       The court reiterated the same sentence at the conclusion of defendant’s statement.
III.   Analysis
       The court did not abuse its broad discretion in declining to strike all of defendant’s
priors. The record amply demonstrates that the trial court balanced the relevant facts and
reached an impartial decision in conformity with the Three Strikes law. Defendant’s
contentions to the contrary are not persuasive.
       Defendant argues that the court should have considered the relevant mitigating
factors set forth in California Rules of Court, rule 4.423, namely “[t]he crime was
committed because of an unusual circumstance, such as great provocation, that is unlikely
to recur,” and “[t]he defendant was motivated by a desire to provide necessities for his or
her family or self.” (Cal. Rules of Court, rules 4.423(a)(3) & (a)(8).) The court did
consider these factors after defense counsel represented that defendant lived in “a
dangerous part of Pomona” where homicides occur. The court specifically explained that
although it understood defendant’s situation and motivations, it was troubled by his
vigilante response and makeshift deadly weapon.
       Defendant also contends that the court should have given more weight to the age
of his prior convictions for serious and violent felonies. It is true that his convictions for
robbery and carjacking are nearly two decades old. However, defendant “did not refrain
from criminal activity during that span of time.” (Williams, supra, 17 Cal.4th at p. 163.)
He may have learned from these mistakes not to commit violent crimes, but his probation
report reflects that he did not learn to conform his conduct to the law. He violated his
parole three times, in 2000, 2002, and 2012, amassed a series of five misdemeanor
convictions for driving without a license from 2003 to 2006, and was convicted of
possession of a controlled substance in 2008. He also had two outstanding traffic

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warrants. The staleness of a conviction is most relevant when a defendant has
subsequently led a “‘legally blameless life’” (People v. Humphrey (1997) 58 Cal.App.4th
809, 813; cf. People v. Harris (1998) 60 Cal.App.4th 727, 739), and the court was
entitled to take defendant’s unlawful conduct into account when exercising its discretion.
       Defendant’s final argument is that the court should have credited him for
accepting responsibility for his actions “shortly after he was charged.” Prompt and
voluntary acceptance of responsibility is a mitigating factor the court may consider (Cal.
Rules of Court, rule 4.423 (b)(3)), but the court did not abuse its discretion by declining
to give great weight to that factor here. Not only did defendant fail to call it to the court’s
attention at sentencing, but he neglects to point out that he did not enter his plea until the
day his trial was set to begin, approximately a week and a half after the prosecution
declared ready for jury trial. Although his acceptance of responsibility less than two
months after charges were filed was swift in absolute terms, it came at the eleventh hour
of this case rather than the “early stage” contemplated in California Rule of Court, rule
4.423(b)(3). The trial court was not required to afford great weight to defendant’s plea.
       As the trial court observed, at least one court had taken a chance on defendant by
apparently striking his priors in connection with his 2008 case. Rather than seizing that
chance, defendant subsequently violated his parole and committed the instant offense. It
cannot be said that defendant fell outside the spirit of the Three Strikes law.
Accordingly, the court acted within its discretion in declining to strike all of his priors.
                                       DISPOSITION
       The judgment of the trial court is affirmed.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                        COLLINS, J.

We concur:


WILLHITE, Acting P. J.                                            MANELLA, J.


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