Filed 3/17/14 P. v. Price CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057200

v.                                                                       (Super.Ct.No. BAF1200110)

CALVIN EDWARD PRICE,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed.

         Christian Buckley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Stephanie H.

Chow, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Calvin Edward Price appeals after he was convicted by a

jury of one count of petty theft with three prior theft-related offenses. Defendant had

admitted the specified three prior theft-related offenses, admitted four prison term priors,

and one strike prior. Defendant contends that the trial court erred in declining to dismiss

his strike prior and treat him as a non-strike offender. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       A loss prevention agent (Edward Marquez) was working at a Home Depot store on

the afternoon of December 29, 2011. Marquez observed defendant and another man,

David Davis, come into the store together at approximately 1:00 p.m. Davis and

defendant moved through the store, pushing a shopping cart. Marquez saw Davis put a

number of items from the plumbing department into the cart. Defendant did not appear to

have personally placed anything into the cart, although he stood next to Davis while

Davis did so.

       The pair eventually moved to the hardware department, where defendant placed

several handfuls of small cabinet knobs into the cart. Each of the knobs had a value of

approximately $6 to $9.

       Defendant and Davis pushed their cart to the outdoor garden area of the store.

They removed merchandise from the cart and hid the items in their clothing. Defendant

placed three or four handfuls of items in the front pouch pocket of his sweatshirt. Both

men then left the store through the garden center exit, without paying for any

merchandise.



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        Marquez accosted both Davis and defendant about five feet outside the store. He

physically restrained Davis, but defendant kept walking into the parking lot. Defendant

had his hands inside his pockets and shouted at store employees to back off, and yelled

that, if anyone touched him, there would be trouble. Defendant entered his car and drove

away.

        Davis was handcuffed at the scene. Some, but not all, of the merchandise

Marquez had seen the men take was found in Davis’s possession. No merchandise was

ever recovered from defendant.

        Defendant was charged, as noted, with one count of petty theft with three priors,

four prison term priors, and one prior strike offense, a robbery committed in 1981. The

jury found defendant guilty as charged on the current petty theft; defendant had a

bifurcated trial on all the priors, including the three specified prior theft offenses, as well

as the prison term priors and the strike. Defendant decided to admit all the bifurcated

allegations. He did, however, ask the trial court to exercise its discretion to dismiss his

strike prior (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497); he argued

that his personal history and the current offense placed him outside the scope of the

“Three Strikes” law.

        More specifically, defendant urged that the nature of his current conviction was

“not violent and truly could have been charged as a misdemeanor.” He claimed that “the

entire case . . . stems from a simple theft from Home Depot. This offense is incredibly

minor when compared with other felony crimes. [It was] a property crime. None of



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[defendant’s] actions in the present case involved any danger to the community in that no

weapon was ever used or threatened.”

       He summarized his relevant criminal history, including his strike conviction for

robbery as a juvenile in 1981, claiming that defendant was the getaway driver in that

offense. Otherwise, he was convicted of grand theft in 1998; convicted of burglary in

1998, for which he was sentenced to three years’ imprisonment; convicted of burglary in

2003; convicted of assault with a deadly weapon in 2007 (claimed to be a non-strike

conviction, as defendant struck a family member with a crutch); convicted of petty theft

(with a prior) in 2009, for stealing alcohol and other merchandise from a discount

department store, for which defendant was sentenced to 16 months’ imprisonment; and

convicted of grand theft in 2010 for stealing alcohol from a grocery store, with a two-year

state prison sentence. Defendant admitted that these offenses in his history “are not far

apart in time,” but he claimed that he “learned from his last offense. [Defendant] does

not make excuses for his actions,” but proceeded to make excuses by pointing to “a

context overshadowed by drugs/alcohol and economic hardships.”

       Defendant’s personal background was good. He had caring parents and good

support. As a teenager, he had mapped out a career choice to follow his father into the

Navy, but he became involved as the getaway driver in a robbery. Then, “his entire life

changed course.” Defendant pleaded guilty. He did not know at the time that the Three

Strikes law would be enacted, so he was never advised, as a consequence of his plea, that

he might in the future be subject to treatment as a recidivist under the Three Strikes law.



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Defendant spent some time in the custody of the California Youth Authority; after his

release, he was on parole for nine years, which he completed without violation.

Unfortunately, however, defendant later resumed his life of crime after completing his

sentence and parole on his juvenile offense. Nevertheless, defendant claimed that he now

“realizes the error of his ways,” and he “regrets a lot of the choices he has made in the

past.” Defendant recognized that “he will be receiving significant jail time on this case.”

He acknowledged that he “has not remained crime free since picking up his only strike

offense,” but he argued that “the crimes [defendant] has committed have not been

repeated crimes of violence. In fact, his crimes have not worsened or increased in nature

or offense, thus [defendant] falls outside the legislative intent of the Three Strikes [l]aw.”

Defendant claimed that he “can participate in society. He is not a danger to society. If

the Court sentences him according to [defense] counsel’s recommendation, he will have

been appropriately punished and will not be a further danger to society.” Defendant

reiterated that he had “obtained his strike prior in 1981. He would not ha[ve] been

advised of the consequences of the strike prior at the time of the conviction because the

Three Strikes [l]aw had not been enacted at that time. It would be unfair to punish

[defendant] as under the [T]hree [S]trikes law when he was not so advised.”

       The trial court declined to exercise its discretion in defendant’s favor, and refused

to dismiss defendant’s strike prior. The court then proceeded to sentence defendant as a

second strike offender under the Three Strikes law: defendant received the aggravated

term of three years for the principal offense, doubled to six years as a second striker. The



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court also imposed one year for each of defendant’s prior prison term enhancements.

Defendant’s total term of imprisonment was therefore 10 years.

       Defendant now appeals.

                                         ANALYSIS

                                     I. Standard of Review

       Trial courts have discretion under Penal Code section 1385 to dismiss three strikes

allegations in the furtherance of justice. In deciding whether to exercise this discretion,

the trial court must take into consideration the defendant’s background, the nature of the

current offense and other individualized considerations. (People v. Superior Court

(Romero), supra, 13 Cal.4th 497, 531.) In making its determination, the court must take

account of those factors underlying the purposes of the three strikes scheme, including

the nature and circumstances of the defendant’s present felony or felonies, as well as his

or her prior serious or violent felony convictions, and the particulars of the defendant’s

background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)

We review the trial court’s decision under the abuse of discretion standard. (People v.

Carrasco (2008) 163 Cal.App.4th 978, 992–993.) When determining whether to dismiss

a three strikes allegation, the trial court must consider whether, in light of all these

considerations, the defendant may be deemed to be outside the three strikes scheme in

whole or in part. (Id. at p. 993.)

       Defendant urges that, while the trial court’s decision not to dismiss a strike is

reviewed only for abuse of discretion, “such standard is deferential but not empty.”



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(Citing People v. Carmony (2004) 33 Cal.4th 367, 376; People v. Garcia (1999) 20

Cal.4th 490, 503.) The circumstances that will demonstrate an abuse of discretion are

“highly limited, but do include instances where the court was not aware of its discretion,

the court considered impermissible factors, or the sentencing norms of the Three Strikes

law produce an arbitrary, capricious or patently absurd result.” (Citing People v.

Carmony, supra, 33 Cal.4th 367, 378.)

  II. The Trial Court Did Not Abuse Its Discretion in Refusing to Dismiss Defendant’s

                                         Strike Prior

       The trial court in this case did not abuse its discretion in refusing to dismiss

defendant’s strike prior.

       As to the nature of defendant’s current offense, the charge in itself is minor—theft

of perhaps $100 or so in merchandise from a home and garden center. However, the

current offense is also one in a long string of offenses by defendant. Indeed, the current

offense was elevated to felony status not merely, as formerly, because defendant had

committed one additional theft-related offense, but because, under a newly amended

version of the statute, he had committed at least three prior theft offenses. The proven

conduct in relation to the current offense also shows that defendant initially evaded

capture by becoming belligerent and threatening toward loss prevention employees of the

store. It was only because defendant threatened violence—by holding something, which

may have been a weapon, hidden in the pouch pocket of his sweatshirt, and by making




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verbal menaces—that he was able to get into his car and drive away. The circumstances

of the current offense do not demonstrate that defendant is a petty or harmless criminal.

       As to defendant’s prior record of serious or violent offenses, he had only the one

strike, which occurred in 1981. However, by his own admission, this single mistake

overturned the entire arc of his life.

       The particulars of defendant’s background, characteristics, and prospects

following his strike conviction, made an extremely poor prognosis for rehabilitation.

After his strike conviction as a juvenile in 1981, defendant spent several years on parole.

He was eventually discharged from parole in 1987.

       Within a few years, defendant racked up a considerable recidivist record: He was

convicted of (1) misdemeanor theft in Texas in 1993; (2) misdemeanor grand theft in

California in 1998 (he violated probation several times in connection with the 1998 grand

theft offense); (3) a California felony grand theft, also in 1998 (defendant also violated

probation several times in connection with this offense); (4) felony second degree

burglary in California in 1998 (defendant violated probation and was sentenced to prison

on this offense, and he had several parole violations after his release); (5) a California

conviction for driving under the influence in 1999 (several probation violations occurred

with respect to this conviction); (6) misdemeanor conviction of petty larceny in Nevada

in 2000; (7) a California misdemeanor conviction for taking and driving a motor vehicle

(defendant had multiple probation violations in the course of serving his sentence on this

crime); (8) a California felony conviction for forgery in 2003 (defendant had multiple



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violations of probation in connection with this offense); (9) a misdemeanor conviction of

driving with a suspended license in 2006; (10) a felony conviction in California in 2008

for assault with a deadly weapon (defendant violated probation, which was revoked, and

he was sentenced to prison and then paroled); (11) a California felony theft conviction in

2009 (defendant was given a prison sentence and was paroled; his parole was violated

and he was returned to custody more than once before discharge); (12) another California

conviction of felony theft, with the same 2009 date of conviction (defendant had the same

parole violations as with his other 2009 felony theft conviction); and (13) a California

conviction of felony grand theft in 2010 (defendant received a prison sentence, was

paroled and again had multiple parole violations before discharge).

       Defendant committed the instant offense only a short time (less than one year)

after his last discharge from parole (on the three prior California theft-related offenses in

2009 and 2010).

       Defendant has displayed an utter inability to conform his conduct to the

requirements of the law. By and large, his crimes tended to involve theft rather than

overtly violent conduct, but that does not mean that he is not a danger to society.

Economic crimes are not harmless. In addition, defendant has not shown himself to be

above resorting to violent criminal conduct: He was willing at the beginning of his career

to take part in a robbery. He was also willing to use a crutch as a club against a family

member. In the instant case, he resorted to menace to get away with his crime.




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       Defendant’s crimes may not be highly sophisticated, but he did plan the instant

crime and acted in concert with another. There is also some suggestion that defendant

participated in ongoing fraud and theft schemes: that is, the Home Depot loss prevention

officer who observed the offense in this case was well familiar with defendant.

Defendant often brought merchandise to the store, without a receipt, to make “returns” of

the merchandise for cash. Defendant had “returned” merchandise to the store, from time

to time, with a total value of about $7,000. The loss prevention officer could not be

certain whether the “returned” merchandise was stolen, but he believed similar schemes

to be a common strategy of criminals to obtain cash.

       Defendant’s record demonstrates beyond question that he is a career criminal, a

recidivist offender, and someone who absolutely falls well within the spirit and letter of

the Three Strikes law. The trial court did not abuse its discretion in declining to dismiss

defendant’s strike prior.

       III. The Trial Court Did Not Abuse Its Discretion in Sentencing Defendant

       Defendant hints that, not only did the trial court abuse its discretion in declining to

dismiss defendant’s strike, the sentence itself was improper. Defendant suggests that a

term of 10 years imprisonment was inappropriate, because of the supposed minor nature

of the present offense: all defendant did was “steal a few dollars worth of . . . knobs from

Home Depot.”




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        The selection of the appropriate sentence is a matter for the trial court’s discretion.

(People v. Edwards (1976) 18 Cal.3d 796, 807.) Defendant has not shown that the trial

court’s sentencing decision was irrational or arbitrary; in the absence of such showing,

the selection of sentence is presumed to be for legitimate sentencing objectives. The

court’s decision to impose a particular sentence will not, in the absence of such showing,

be set aside on review. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-

978.)

        Here, defendant was an unrepentant career thief. He continued to deny and

minimize all his criminal behavior, including denying complicity in the instant offense.

He claimed that he merely stood by and had no idea that his codefendant Davis was

stealing anything. He had not reformed himself after his initial brush with the law as a

young adult. Lenient treatment had not caused him to change his ways. Imprisonment

had taught him nothing. He performed poorly when granted probation or when he was on

parole. He had not been convicted of many violent offenses, but he had one prior serious

or violent felony conviction, and another conviction for assault. He also used

belligerence and menace to get away in the instant case. The trial court could rationally

determine that long-term separation from society is the only means of protecting the

public from defendant’s predatory criminal behavior. The trial court did not abuse its

discretion in selecting defendant’s sentence.




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                 McKINSTER
                                                             J.
We concur:



HOLLENHORST
          Acting P. J.



KING
                         J.




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