Filed 5/2/14 P. v. Rhodes CA5

Opinion after recall of remittitur

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065830
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM014685)
                   v.

DONNELL JEFFERY RHODES,                                                                  OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Ralph J.
Cook, Commissioner and Brian L. McCabe, Judge.†
         Gregory Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Donnell Jeffery Rhodes pled no contest to receiving stolen property.
He also admitted suffering one prior strike conviction and two prior prison terms. The

*        Before Hill, P. J., Levy, J. and Cornell, J.
†    Commissioner Cook presided over the Romero motion on November 2, 2011. Judge
McCabe presided over the sentencing on February 10, 2012.
court denied defendantʼs Romero1 motion and sentenced him to eight years in prison. On
appeal, defendant contends the court (1) failed to properly exercise its discretion in ruling
on his Romero motion, and (2) erred when it imposed two fees. The People concede, and
we agree, that the challenged fees must be revised. However, defendant has failed to
demonstrate the court erred in denying his Romero motion and therefore we affirm the
sentence.
                                           FACTS2
       “On December 12, 2010, at approximately 9:03 a.m. officers were dispatched to
Pacifica Tanning due to an alarm. Upon arrival, the officers checked the surrounding
area of the business and noticed a door to be slightly ajar. As the officers walked toward
the doorway the defendant quickly walked out attempting to walk away past the officers.
The defendant was contacted by the officers and when questioned as to why he was there,
he stated he was an employee who was there to clean the windows. The defendant was
unable to provide his window washing supplies. The defendant denied having anything
illegal on him and agreed to a search. He provided officers with a Merced College and a
Parole Identification Card. Officers found a gray DVD remote which was marked True
Tech. The defendant stated he must have accidentally picked it up from home when he
got his cell phone. The defendant kept insisting he entered the business only to see if
‘Joan’ was present.
       “A short time later, Rebecca Manandic showed up on scene and stated she runs the
business. She stated she does not have any employees with the name of Joan. Manandic
stated she does not know the defendant and he did not have permission to be in her
business. She stated one of her employees must have forgotten to lock the door.
Manandic noticed a yellow colored palm tree bag that was placed on the floor with trash
bags, a True Tech DVD Player, and a Uniden cordless phone in it. The defendant was

1      People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2      Because defendant entered a no contest plea, the facts are taken verbatim from the
probation officer’s report.

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subsequently arrested and his Miranda[3] rights were read. The defendant denied the
burglary. The defendant was transported and booked into the Merced County Jail. The
Parole Agent also placed a hold on the defendant.”
                                         DISCUSSION

I.      Romero Motion
        Defendant contends this case must be remanded for resentencing because the court
failed to consider all the factors it was required to consider in ruling on his Romero
motion. We disagree.

        A.     Background
        On July 14, 2011, an information was filed charging defendant with second degree
burglary (Pen. Code, § 459; count 1)4 receiving stolen property (§ 496, subd. (a); count
2), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a);
count 3). With respect to counts 1 and 2, the information alleged defendant had three
prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)). With respect to
count 2, the information alleged that defendant had two prior prison terms (§ 667.5, subd.
(b)). On July 27, 2011, defendant entered a plea of not guilty.
        On October 20, 2011, defendant filed a Romero motion inviting the court to strike
one of his prior strike convictions. The People filed written opposition on October 31,
2011.
        On November 2, 2011, defendantʼs Romero motion came on for hearing before
Commissioner Ralph J. Cook. The parties submitted on the briefing and Commissioner
Cook ruled as follows:

        “While the present offense is not the most serious offense that somebody
        could commit, itʼs not as serious as some of the history, it is a second
        degree burglary. Frequently, discussions—motions are made, if itʼs
        somebody with a petty theft with a package of cigarettes, something like

3       Miranda v. Arizona (1966) 384 U.S. 436.
4       Further statutory references are to the Penal Code unless otherwise specified.

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       that. I donʼt think this type of charge is nearly as minimal as something
       like that. I think it still is a serious offense. [¶] The invitation to strike the
       strike, the Romero motion is denied.”
       On December 13, 2011, defendant withdrew his not guilty plea and entered a no
contest plea to count 2. He also admitted one of the prior strike convictions and the two
prior prison terms. The plea agreement contemplated that defendant would be sentenced
to the upper term of three years on count 2, which would be doubled to six years pursuant
to the “Three Strikes” law, and he would also receive two consecutive one-year terms for
the prison priors.
       At sentencing on February 10, 2012, defendant renewed his Romero motion. The
court, which was presided over by Judge Brian L. McCabe, ruled as follows:

       “First, the Court notes that it does believe it has the ability to entertain a
       Romero anew, but it declines to do so for the same factors stated by the
       prior judicial officer and ruling on the Romero, and it concurs with its
       analysis.”
The court then proceeded to sentence defendant in accordance with the terms
contemplated by the plea agreement.
       B.     Applicable Legal Principles
       Under section 1385, subdivision (a), a judge “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.” Romero held that “a trial court may strike or vacate an allegation
or finding under the Three Strikes law that a defendant has previously been convicted of
a serious and/or violent felony, on its own motion, ‘in furtherance of justiceʼ pursuant to
... section 1385[, subdivision] (a).” (People v. Williams (1998) 17 Cal.4th 148, 158
(Williams).) The court is required to 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 scheme’s spirit, in whole or in part, and hence should be treated as




                                               4.
though he had not previously been convicted of one or more serious and/or violent
felonies.ʼ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
       “[A] trial courtʼs refusal or failure to dismiss or strike a prior conviction allegation
under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33
Cal.4th at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
       “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 attackʼ [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.” (Carmony, supra, 33 Cal.4th at
p. 378.)
       C.     Analysis
       Defendant concedes that his “past and present conduct would support a
discretionary decision to deny relief.” However, he asserts the comments Commissioner
Cook made in denying his original Romero motion (which Judge McCabe subsequently
adopted in denying his renewed motion) demonstrate the court “considered solely and
only the seriousness of the present offense” and “failed to consider in any way the
majority of factors the Romero/Williams doctrine required it to consider.”
       It is true that a trial court errs if it fails to appreciate the scope of its discretion and
therefore fails to exercise it. (Carmony, supra, 33 Cal.4th at p. 378.) But it is
defendantʼs burden to demonstrate an abuse of discretion (Romero, supra, 99
Cal.App.4th at pp. 1433-1434), and reviewing courts will not infer sentencing error if the
record does not affirmatively show it. (Carmony, at p. 378 [court ordinarily is presumed
to have correctly applied the law on Romero motions].) In this context—where a
defendant seeks to establish the negative proposition that the trial court did not consider


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what it was required to consider—a defendant can rarely meet the burden to affirmatively
demonstrate error because the trial court is not required to state reasons for declining to
strike a strike prior. (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.) In other
words, where the Legislature establishes a sentencing norm and requires the trial court to
explicitly justify a departure therefrom, all that is required on the appellate record is a
showing that the trial court was aware of its discretion to select an alternative disposition.
(Id. at p. 434.)
       The record here does not affirmatively demonstrate the court failed to consider all
the relevant factors in ruling on defendantʼs Romero motion. These factors were
thoroughly covered in the briefs filed by the parties below, and the court specifically
noted it had “read and reviewed” the partiesʼ briefing at the beginning of the hearing on
defendantʼs original Romero motion. Thus, we can presume the court was aware of the
factors it was required to consider. Contrary to defendantʼs suggestion, the courtʼs
comments focusing on the seriousness of the present offense do not affirmatively prove
the court only considered that factor in ruling on the motion. Defendantʼs assertion is
also undermined by the courtʼs express recognition that defendantʼs current offense was
not as serious as others in his criminal history, suggesting the court did review and
consider his background and prior strikes. There is simply no basis for us to conclude the
court did not appreciate the scope of its discretion and failed to properly exercise it in
denying either the original or renewed Romero motion.5




5       We summarily reject defendantʼs contention that the recent passage of Proposition 36 is a
“significant factor pointing towards reversal and remand.” He cites no authority for, and we find
unpersuasive, his claim that “Proposition 36 alters the universe of many ‘Three Strikesʼ cases,
including this one, to such an extent that a Romero decision that preceded the date of adoption of
Proposition 36, but involved a case not final at the time of that adoption, should be reconsidered
by the trial court.”


                                                6.
II.    Imposition of Fees
       At sentencing, the court imposed a fee of $320 under section 1465.86 and a fee of
$240 under Government Code section 70373.7 Defendant argues, and the People agree,
these fees should each be reduced. They are correct. Defendant, who stands convicted of
a single criminal offense as a result of the plea agreement, is to pay a fee of $40 under
section 1465.8 and a fee of $30 under Government Code section 70373.
                                        DISPOSITION
       The superior court is directed to prepare an amended abstract of judgment and
forward a copy of the amended abstract of judgment to the California Department of
Corrections and Rehabilitation so that the fee imposed under Penal Code section 1465.8
is reduced to $40, and the fee imposed under Government Code section 70373 is reduced
to $30. In all other respects, the judgment is affirmed.




6      Section 1465.8 provides, in pertinent part: “(a)(1) To assist in funding court operations,
an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal
offense.”

7       Government Code section 70373 provides, in pertinent part: “(a)(1) To ensure and
maintain adequate funding for court facilities, an assessment shall be imposed on every
conviction for a criminal offense .… The assessment shall be imposed in the amount of thirty
dollars ($30) for each … felony.”

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