IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 9, 2010
(Santa Clara County Super. Ct. No. CC932313)
The opinion of the court was delivered by: McAdams, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
THE PEOPLE, Plaintiff and Respondent, v. JANETTE LYNN BROUGHTON, Defendant and Appellant.
Defendant Janette Broughton appeals from a nine-year state prison sentence imposed following her no contest pleas and admissions to residential burglary and a prior serious felony "strike" prior conviction for residential burglary. On appeal, defendant argues that the trial court abused its discretion in denying her motion to strike the prior conviction for the purposes of the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) She also argues that trial counsel rendered ineffective assistance of counsel in that he failed to ask the court to strike the occupied residence allegation. We will affirm.
STATEMENT OF THE CASE
Defendant was jointly charged with co-defendant Baudelio Martinez with the first degree burglary of an occupied residence. (Pen. Code, §§ 459/460, subd. (a), 667.5, subd. (c)(21).)*fn1 The information also alleged that she had been previously convicted of a burglary which qualified as both a strike and a serious felony prior conviction. (§§ 667, subd. (b)-(i)/1170.12; 667, subd. (a).) On August 21, 2009, pursuant to a negotiated disposition, defendant pleaded no contest to the burglary charge and admitted the occupied residence and prior conviction allegations, with the understanding that the court would consider a Romero motion to strike her prior conviction. In exchange, she was promised that her sentence would not exceed nine years in prison. As part of the "package deal," co-defendant Martinez also pleaded guilty to the burglary charge for a four-year state prison sentence.*fn2
Defendant's Romero motion was heard and denied on December 4, 2009. The court denied probation and sentenced defendant to a term of nine years, as follows: the mitigated term of two years, doubled to four years pursuant to the Three Strikes law, plus a consecutive five years for the prior serious felony conviction pursuant to section 667, subdivision (a).
STATEMENT OF FACTS*fn3
On January 19, 2009, two 16-year-old brothers were home alone studying for their SAT's. The doorbell rang, but neither brother wanted to open the door. One of the brothers looked out the window and saw an older-looking green car on the street in front of the house. A woman later identified as defendant was inside the car. A man exited the vehicle and walked towards the house, with a magazine or catalog in his hand, while the woman drove away. One brother then heard a noise coming from a rear window. Fearing for their safety, the brothers fled to the garage to hide. They called 9-1-1 and their father.
The police arrived while the burglary was still in progress. An officer intercepted co-defendant Martinez and arrested him as he was leaving the house wearing white gloves and carrying a screwdriver and an iPod on his person. Inside the house the police found a suitcase and duffle bag that did not belong to the residents of the house. The suitcase and duffle bag contained a laptop computer and jewelry. The total value of the property was approximately $53,000. The point of entry was an upstairs bathroom window. Police located the two terrified brothers hiding behind a car in the garage.
Police found Martinez's cell phone when they searched him and discovered that the cell log included calls to a person named "Janette" that occurred during the burglary. When Martinez's cell phone began to ring, an officer answered the phone. A woman whispered: "Did you get away?" Pretending to be Martinez, the officer told the woman to meet him nearby. She said there were too many police at that location, and suggested he meet her at a restaurant. Officers responded to the restaurant and contacted defendant, who had her baby with her.
Martinez told police that he and defendant were driving around with their child in the car when they decided to burglarize a house to steal jewelry and other items that they could pawn. They chose the house because there were no cars in the driveway. He said defendant dropped him off so that he could burglarize the house. Defendant told police that she did not do anything. Martinez called her up to pick him up, but she could not understand what he was saying.
Denial of Romero Motion
a. Factual Background
According to the probation report, defendant was 36 years old, had three prior felony and three prior misdemeanor convictions and was on probation in three cases at the time that she committed the current offense. She had no criminal history until 2007, when she became addicted to methamphetamine at the age of 34. In 2007, defendant was convicted of one count of residential burglary and one count of driving a stolen car in connection with the theft of a U-haul truck in which police found stolen property that had been taken in residential burglaries. Defendant admitted her involvement in several burglaries with her boyfriend, Martinez.*fn4 She was granted three years of formal probation on April 1, 2008, and was ordered to serve one year in the county jail. That same day, she was granted three years of formal probation following her conviction for grand theft. In November 2008, defendant was granted two years of formal probation following her misdemeanor convictions for violations of Health and Safety Code sections 11377 and 11364.
Defense counsel filed a written motion asking the court to exercise its discretion to strike defendant's prior residential burglary conviction. Defendant has three children, ages 20, 16, and 17 months, the youngest of whom is also co-defendant Martinez's child and lives with defendant's mother. After describing defendant's involvement in the 2008 and 2009 burglaries as that of an aider and abettor who helped Martinez but did not enter the victims' homes herself, defense counsel discussed the findings of Dr. Steven Barron, Ph. D., a licensed clinical and forensic psychologist who evaluated defendant and concluded that she suffers from alcohol and methamphetamine dependency, a Dependent Personality Disorder and a Borderline Personality Disorder.
According to the motion, defendant began drinking alcohol to excess as a teenager but later became abstinent. However, at the age of 25 she began using methamphetamine. At the time of the current offense, she had abstained from using methamphetamine for less than two months, having quit entirely on her own, and in Dr. Barron's opinion probably was experiencing the symptoms of methamphetamine withdrawal at the time she committed the current offense. While in jail, she had voluntarily sought out treatment and classes for drug addiction.
Also according to the motion, defendant's criminal history began at roughly the same time that she became involved with co-defendant Martinez, and in the two-year interval between her 2007 and 2009 burglaries, she had also been convicted of drug and drug paraphernalia possession, auto theft and grand theft and was on probation for those offenses at the time of the current offense. Referencing Dr. Barron's report, defense counsel argued that defendant's need for approval and fear of abandonment played into the hands of her "very manipulative" co-defendant, who encouraged her drug dependency, undermined her efforts to free herself from that dependency, and "led to the lack of empathy and bad judgment that allowed [defendant] to make the choice to join Mr. Martinez's crime spree by driving him to/from burglaries." Defense counsel acknowledged the seriousness of defendant's crimes but argued that her prior conviction should be stricken because the crimes were not violent; they were not instigated by her; defendant's actions demonstrated a lack of criminal sophistication; she was motivated by her need to please Martinez and be accepted by him, which motivation was a by-product of her drug dependency and personality disorders, for which treatment was available. Counsel characterized defendant's criminal past as "an aberration in an otherwise law-abiding life."
Dr. Barron's report was attached to the motion. It revealed that defendant was sexually abused by an older cousin from the time she was nine years old until she was 13. She became pregnant by her boyfriend at 15 and dropped out of high school in the ninth grade. However, she eventually obtained her diploma by attending community college. She described her father as an "alcoholic" and unavailable, and her mother as a "codependent."
Defendant has been married twice and has worked many jobs, but mainly she has worked for her grandparents, who own a restaurant. She had been involved with co-defendant Martinez "off and on" for two years. She described him as "very manipulative," unemployed, and verbally, emotionally and occasionally physically abusive to her, but a good father to his children. She described her history of alcohol and drug dependency, two traumatic head injuries, and problems with self-image and unsatisfactory relationships.
Dr. Barron administered the Personality Assessment Inventory to defendant. He concluded that defendant's "clinical profile was marked by significant elevations across a number of different scales, with the configuration suggesting a history of substance abuse problems, impulsivity, and emotional lability." Dr. Barron described and defined a number of psychiatric disorders that were present at the time of the burglary: (1) alcohol and methamphetamine dependency; (2) Dependent Personality Disorder; and (3) Borderline Personality Disorder. He concluded: "In examining [defendant's] psychiatric disorders it becomes evident why an adult woman with no prior significant criminal history would begin engaging in burglaries at age 34. Individuals with Dependent Personality Disorder are often characterized by pessimism and self-doubt, tend to belittle their abilities and assets, and may constantly refer to themselves as 'stupid.' They take criticism and disapproval as proof of their worthlessness and lose faith in themselves. They may seek overprotection and dominance from others. Abandonment fears associated with Borderline Personality Disorder are related to an intolerance of being alone and a need to have other people with them. The perception of impending separation or rejection can lead to profound changes in self-image, affect, cognition, and behavior. Frantic efforts to avoid abandonment may include impulsive and self destructive actions." Dr. Barron also opined that while the sexual abuse and dysfunctional parents may not be causative, they are associated with the development of certain personality disorders, and that the characteristics of such disorders can be exacerbated by substance abuse.
At the sentencing hearing on December 4, 2009, defendant's family and pastor were present. After stating that it had read "the very well written papers" by the attorneys as well as Dr. Barron's report "which is very interesting," the court asked for additional evidence or argument. Defense counsel began her argument by adverting to the unusual fact that defendant's criminal history began at the age of 34. She added: "Your Honor is well aware and I believe you have paid attention thoroughly to the psychiatric evaluation that's been conducted." Defense counsel summarized defendant's background and Dr. Barron's findings and opinions. Defense counsel emphasized that although defendant was legally responsible as an aider and abettor, she was a passive participant in the prior burglary case; that all of her convictions occurred during a short period of time, and that defendant tried to minimize the domestic violence aspect of her relationship with co-defendant Martinez.
With respect to the current burglary, defense counsel argued that it was "lesser in significance" than the prior case in that defendant only dropped off Martinez at the house to be burglarized because it appeared to be unoccupied, was elsewhere during the burglary, and came back to pick up Martinez at his request in a phone call. As for the "hot prowl" allegation, defense counsel argued that the house had not been targeted because it was occupied, or during the night time when homes are traditionally occupied; rather, "there would have been no way for Ms. Broughton to know if someone was home or not." Defense counsel asked the court to consider that defendant was not acting as a lookout, and that the current burglary demonstrated "a lesser and declining level of criminality" because it was "a one event thing," in contrast to the series of felonies in her previous record. Defense counsel argued that defendant was extremely remorseful, and would face loss of her baby in any event.
Finally, regarding Dr. Barron's report, defense counsel argued: "[T]he psychiatric report . . . does indicate she has at least four various diagnoses that factored into what occurred here. [¶] And I think the court is allowed to consider any type of psychiatric issues that the client may have which would predispose them or present a problem in terms of why they . . . commit the offense they would commit." Defense counsel concluded that as a result of the psychiatric evaluation and in-custody programs, defendant now realized that she must abstain from drug and alcohol use and deal with ongoing psychological issues, "and I think that aptly pointed out in the report I provided Your Honor [is] that the psychiatrist feels very strongly that if Ms. Broughton gets help which she is seeking and would very much like to do; she has an excellent prognosis for recovery."
After hearing further argument from the attorneys, the court denied the Romero motion and imposed sentence. The court gave a lengthy statement of its reasons.*fn5 The court agreed with defense counsel that there were some mitigating factors which warranted imposition of the low term, which reduced the sentence from a maximum of 17 years to nine years.
b. Governing Legal Principles
"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citations.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that 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 pp. 376-377.)
"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385(a), 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 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.) "Thus, 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." (Carmony, supra, 33 Cal.4th at p. 378.) We now apply these principles to the case at hand.
On appeal, defendant argues that the trial court's denial of defendant's Romero was an abuse of discretion because the court (1) greatly exaggerated the seriousness of the current crime; (2) failed to consider important mitigating factors concerning defendant's background and character and exaggerated unfavorable factors concerning her prospects for avoiding re-offense; and (3) failed to consider the disproportionality of defendant's sentence as compared to her co-defendant's, who was equally or more culpable than she was.
We disagree. Defendant's arguments do not demonstrate that the court acted irrationally or arbitrarily. The court gave consideration to the factors argued by defendant. It weighed these factors against the number and gravity of defendant's prior and current offenses. "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.)
Exaggeration of the Seriousness of the Crime
As she did in the trial court, defendant argues on appeal that the burglary at issue was no more serious than any other daytime residential burglary. "[T]he current crime was a typical daytime burglary in which adolescents who happened to be in the house, despite efforts to avoid this, were frightened but unharmed," but where "no violence to persons was either employed or envisioned by the perpetrators." She also reiterates that she was less culpable than Martinez because, as the getaway driver, she was "a less serious participant" in the crime, even if her legal liability as an aider and abettor was equal. Furthermore, her conduct was "a product of her mental health problems combined with her troubled relationship with Martinez."
Defense counsel eloquently made these points below and, so far as this record reflects, the court considered them, even if it did not wholly espouse them. The court's view that the burglary of an occupied dwelling is more serious than the burglary of an unoccupied dwelling, particularly when the occupants are minors who are home alone, is not irrational or arbitrary. Nor did the court reason irrationally or arbitrarily, on these facts, that defendant was an active participant whose assistance knowingly facilitated the burglary. No error appears.
Failure to Consider Mitigating Factors
Defendant argues that the trial court "barely paid any attention" to defendant's background and character in this case, ignored that she had been crime-free for the first 32 years of her life and only engaged in serious criminal conduct in the context of her relationship with Martinez. In addition, defendant argues, the court was "dismissive" of Dr. Barron's psychological evaluation and gave it "no meaningful consideration." We disagree. The court indicated that it had read defendant's written motion, including Dr. Barron's report, and agreed with defense counsel that it could consider defendant's psychological issues, stating "especially if it's not something that's going to be reoccurring as some of them are, like the head injury and molestations. They are always going to be with her." Furthermore, defense counsel's argument in court wove together Dr. Barron's findings and other aspects of defendant's background and prospects. On this record, we see no basis for inferring that the court failed to consider defendant's background, character, or psychological evaluation by Dr. Barron. The court evidently did not consider such factors dispositive of its decision. In our view, the court's decision is not irrational or arbitrary, in light of defendant's recent record of criminal behavior or her failure in rehabilitative programs. Even if we were to disagree with the trial court's decision, Carmony teaches that we are not empowered to substitute our judgment for that of the trial court.
Disparity Between Defendant's Sentence and Her Co-defendant's
Finally, defendant argues that the disparity between defendant's sentence and Martinez's sentence was a "salient consideration" that the court should have considered. In one sense, the court did consider the disparity. Defendant, unlike Martinez, had prior convictions for residential burglary. "Since the current offense is a repetitive one, the Legislature may impose stiffer penalties by treating the prior convictions as factors in aggravation." (People v. Carmony (2005) 127 Cal.App.4th 1066, 1079.) The court lamented the fact that it could not give Martinez a greater sentence than four years.
However, in general, a co-defendant's sentence is extrinsic to the trial court's exercise of its limited discretion to strike a prior conviction under the Three Strikes law. Instead, the court looks " 'within the scheme in question, as informed by generally applicable sentencing principles. . . .' [Citation.] . . . '[N]o weight whatsoever may be given to factors extrinsic to the [Three Strikes] scheme' and . . . '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 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. Wallace (2004) 33 Cal.4th 738, 747-748.) The court did not err in this regard, either.
The trial court had before it the attorneys' written memoranda of law, the probation report, Dr. Barron's report, and the oral arguments of counsel. We presume the court considered all that it had before it in reaching its decision. Having done so, the court concluded that defendant's background, character, prospects, and present and past serious felony convictions, did not bring her outside the ambit of the Three Strikes law. That conclusion was not irrational or arbitrary on these facts. Our review is deferential. The trial court's denial of defendant's Romero motion was not an abuse of discretion.
Ineffective Assistance of Counsel
Defendant argues that trial counsel was ineffective for failing to request at sentencing that the court strike the allegation, admitted by defendant, that the burglary was committed while a person was present in the residence. (§ 667.5, subd. (c)(21).) That allegation made defendant's sentence subject to the credit restrictions contained in section 2933.1.
"A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Price (1991) 1 Cal.4th 324, 440; People v. Anderson (2001) 25 Cal.4th 543, 569.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Anderson, supra, 25 Cal.4th at p. 569, internal quotation marks omitted; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Finally, "trial counsel's tactical decisions are accorded substantial deference. . . . 'A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' " (People v. Riel (2000) 22 Cal.4th 1153, 1185.)
Defendant acknowledges that there is no case law directly on point giving the trial court the authority to dismiss an "occupied residence" allegation. Moreover, defendant identifies no basis for dismissing the allegation, other than to do so would have mitigated defendant's sentence. Defendant does not point to any evidence in the record suggesting that the court might have granted the relief requested, in the absence of any direct authority therefore, if defendant had asked for it. Finally, the record does not demonstrate why trial counsel acted as she did. Defendant has the burden of affirmatively showing incompetence. On this record, incompetence has not been affirmatively demonstrated, and defendant has failed to carry her burden.
The trial court did not abuse its discretion in denying defendant's Romero motion to dismiss her prior burglary conviction. Trial counsel was not ineffective for failing to request dismissal of the "occupied residence" allegation.
The judgment is affirmed.
Mihara, Acting P.J. Duffy, J.