APPEAL from a judgment of the Superior Court of Sacramento County, Michael W. Sweet, Judge. Affirmed. (Super. Ct. No. 06F01522).
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PUBLICATION
In 1998, defendant Harrison Scott was convicted of robbery (Pen. Code, § 211)*fn1 and carjacking (§ 215, subd. (a)) arising out of the same facts. Both of those convictions are alleged as prior strikes in the instant case, and defendant contends one of them must be stricken.
In People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos), Division Two of the Court of Appeal, Second Appellate District, discussed this issue. We find the holding in Burgos difficult to discern. It can reasonably be read to state that in such cases one strike must be stricken, or that the connection between the two strikes is but one factor a trial court must consider in conducting a traditional Romero analysis (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
By applying the definition of a "strike" as provided by the three strikes law, and by closely hewing to People v. Benson (1998) 18 Cal.4th 24 (Benson), we conclude that in such cases, the trial court is not compelled to strike a strike, but must consider the closeness of the two strikes as an additional circumstance in conducting a Romero analysis. Because the trial court in this case did so, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2005, several inmates at New Folsom Prison, including defendant, attacked another inmate, and a sharp object was found in defendant‟s pocket. Defendant was charged with assault with a deadly weapon on an inmate by a non-life prisoner (§ 4501) and possession of a sharp instrument by a prison inmate (§ 4502, subd. (a)).
Defendant made a pretrial Romero motion, arguing that his 1998 robbery and carjacking strikes arose out of his single act of robbing the victim of his car, and it was unfair to treat that one act as two strikes. The People‟s opposition argued the trial court could strike a strike if, and only if, defendant fell outside the spirit of the three strikes law. The People‟s opposition also recited defendant‟s criminal history, including a juvenile record of robbery and assault with a deadly weapon, and an adult record including a prior in-prison stabbing (§ 4501), and many sustained discipline cases in prison, several involving violence.
The People‟s opposition to the Romero motion described the facts of the strikes as follows: "On July 03, 1997, . . . the victim . . . was carjacked at gunpoint. He reported to Los Angeles Police officers that he had been confronted by two males in a dark green Volkswagen Bug. The defendant, Harrison Scott, . . . approached him and pointed a rifle at him. [The victim] exited the vehicle and allowed Harrison Scott to take the vehicle. Inside the vehicle were numerous items belonging to the victim, including clothing."
At the pretrial Romero hearing, defense counsel agreed that the People‟s opposition to the Romero motion "[e]ssentially" accurately stated defendant‟s criminal history.
The trial court concluded that Burgos did not compel it to strike a strike, found defendant fell within the spirit of the three strikes law, and denied his Romero motion.
At trial, the jury rejected defendant‟s claim of self-defense. However, the jury acquitted defendant of assault by a non-life prisoner with a sharp instrument. The jury convicted defendant of possession by a prisoner of a sharp instrument and simple assault. (§§ 240, 4502, subd. (a).) The jury found the robbery and carjacking strikes true, although one of the strike verdict forms is missing from the clerk‟s transcript. (§§ 211, 215, 667, subds. (b)-(i), 1170.12.) To the extent defendant purports to challenge whether both strikes were proven, he forfeited the claim by failing to separately head it. (People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5.) In any event, the jury was polled and it is clear it found both strikes true.
The probation report in this case describes the strikes as follows: "[O]n 7/3/97, at approximately 2220 hours, the victim parked his vehicle and got out. Another vehicle stopped nearby and [defendant] got out. [Defendant] approached the victim, pointed an assault rifle at him and demanded his car keys. The victim, fearing for his safety, gave [defendant] his keys, and [defendant] drove away in the victim‟s vehicle. The other vehicle also left the scene."
The abstract pertaining to the prior strikes shows the trial court imposed on "Lincoln Harrison Scott" the upper term of nine years for carjacking (§ 215, subd. (a)), plus 10 years for a firearm enhancement (§ 12022.5, subd. (a)), and imposed but stayed (§ 654) an upper term sentence for robbery and an additional firearm enhancement.
Defense counsel renewed the Romero motion before sentencing, and objected to the description of the strikes in the probation report. The prosecutor argued those facts could show defendant committed two acts, one act of robbing the victim of his keys, and the other of robbing the victim of his vehicle.
The trial court overruled the objection to the probation report, but found it did not have adequate information to determine that two acts occurred, and declined to revisit the Romero ruling it had made. On appeal, the People mention the prosecutor‟s two-act theory, but do not defend it, and brief this appeal as if one act took place. For purposes of this appeal, we agree. (See People v. Dominguez (1995) 38 Cal.App.4th 410, 419-420 (Dominguez) [carjacking and robbery ""the same act‟" where Dominguez demanded ""everything [the victim] had‟" and victim gave him jewelry and allowed him to take victim‟s van].)*fn2
The trial court sentenced defendant as a three strikes offender to a state prison term of 25 years to life with the possibility of parole for possession of a sharp instrument by ...