APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. (Super. Ct. No. SCN255180)
The opinion of the court was delivered by: McDONALD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On July 9, 2009, Christopher Bradley was convicted of assault with a deadly weapon (count 1, Pen. Code, § 245, subd. (a)(1))*fn1 and carrying a concealed dirk or dagger (count 2, § 12020, subd. (a)(4)). He admitted the prison prior (§ 667.5, subd. (b)), serious felony conviction (§ 667, subd. (a)(1)), and serious or violent felony conviction (§ 667, subd. (b)-(i)) allegations. He was sentenced to a prison term of 12 years: three years doubled under the three strikes law for the assault conviction; one year for the prison prior, and five years for the prior serious felony conviction. The trial court stayed the sentence on count 2 under section 654. Bradley appeals, contending the trial court erred by not dismissing the serious or violent felony conviction allegation under section 1385.
On December 6, 2008, Frank Fox and his friend, Anthony Vidosevic, were walking southbound on Escondido Boulevard when they were approached by Bradley and his cohort. Bradley asked Fox if he had a quarter and Fox said "no." Bradley then called Fox a "faggot." Fox, remembering that Bradley had called out, "Hey, pretty boy" about 15 minutes earlier that day, responded with "so you're the bitch that called me a pretty boy." Bradley then pulled a letter opener from his clothing and said, "[w]hat are you going to do about it, you f---ing bitch?" Fox ran into a nearby restaurant and called the police. Bradley and his cohort fled but were apprehended by police soon thereafter. Police reported Bradley appeared intoxicated because of his bloodshot eyes, slurred speech, and strong odor of alcohol. Fox positively identified Bradley in a curbside lineup.
Bradley appeals, asserting the court abused its discretion and denied him his due process rights by not dismissing his prior strike conviction allegation. Section 1385 allows a trial court on its own motion to dismiss prior serious or violent felony conviction allegations under the three strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530; §1385, subd. (a).) A trial court has discretion to dismiss an allegation that the defendant has a prior serious or violent felony conviction (or a true finding on that allegation). (People v. Carmony (2004) 33 Cal.4th 367, 376.) The court is presumed to have acted properly in denying a defendant's request to dismiss that allegation and then sentencing the defendant under the three strikes law. (Ibid.)
It is the appellant's burden on appeal to show the trial court abused its discretion by irrationally or arbitrarily denying a request to dismiss a prior strike conviction allegation (or true finding). (People v. Carmony, supra, 33 Cal.4th at p. 376.) People v. Williams (1998) 17 Cal.4th 148, 161 states:
"[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 . . . section 1385[, subdivision] (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."
An appellant does not carry his or her burden on appeal by merely showing reasonable people might disagree on whether to dismiss a prior strike conviction allegation. ...