IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 20, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CEDRIC STONE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F07382)
The opinion of the court was delivered by: Robie, J.
P. v. Stone
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Cedric Stone guilty of felony vandalism and two counts of misdemeanor spousal battery. The trial court found true allegations that defendant had a prior robbery strike and had served three prior prison terms. The trial court struck two of the prison term findings and sentenced defendant to prison for 44 months. Defendant timely filed this appeal. He contends the trial court should have granted his Romero motion to strike the strike. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) We reject this contention and affirm.
The victim, defendant's wife, testified that on September 9, 2009, the couple lived with three children, and the victim was pregnant. The couple argued in the kitchen and defendant threw an empty plastic ketchup bottle at her and "hit my glasses off me." She denied telling an officer that defendant hit her skin. The victim told the 911 operator that defendant "threw a ketchup bottle at me and slapped my glasses off my face." A responding officer testified she reported defendant gave her an open-handed "slap across the face."
The victim testified that on September 27, 2009, she had been out of the hospital for about two days after a caesarian birth. She was mad at defendant because he had been out all night. He became angry when she told him her mother had thrown out a brush that he liked. Later, he cracked a large television screen with a car seat. The television had cost about $700 or $800. The victim was angry and chased defendant outside and said she would call the police. She ripped his shirt and he pushed her down, which scratched her knee. In a 911 call, she was crying and said he broke something in her house and pushed her down twice, she was "scratched up," and she felt like she had been cut under her arm. She testified her arm had not been injured and she told officers that she had ripped defendant's shirt during the fracas. However, when shown a photographic exhibit, she conceded it depicted a scratch on her arm. She had not mentioned ripping defendant's shirt in her written description of the incident, submitted in aid of a restraining order. A responding peace officer testified the victim had not mentioned ripping defendant's shirt.
The victim's mother testified that after defendant learned his brush had been thrown away, he threw a car seat into the television. She saw defendant push the victim down twice.
The parties stipulated that in 1998, defendant was convicted of misdemeanor domestic violence against R. W., the parent of his child.
Defendant contends the trial court abused its discretion by denying his Romero motion. We disagree.
Defendant's motion in part argued the current offense was minor because defendant did not use weapons, acted in anger, and his victim "described herself as the aggressor," and wanted to reconcile with defendant. Further, his 1992 strike was old and he had no convictions since 2006, although he had one parole violation since then. Finally, despite partly debilitating sciatica, "he was working and providing for his family."
The record before the trial court showed that defendant was born in 1974. In 1992 he was convicted of petty theft in one case and in a second case was convicted of armed robbery and was sentenced to prison for five years. In 1998, he was convicted of misdemeanor domestic abuse, after he punched his girlfriend in the face, grabbed her by the hair, and banged her head "into the ground several times." In 1999, he was convicted of commercial burglary, theft, and knowing receipt of stolen property, and he was sentenced to prison for two years. In 2002, he fled from an officer and was convicted of misdemeanor resisting a peace officer. In 2004, he was convicted of possession of narcotics for sale and sentenced to prison for 32 months. In 2007, while on parole, he was found in possession of marijuana and placed on informal probation. Thus, most of defendant's adult life has been spent in prison, on probation, or on parole.
The trial court denied the Romero motion due to defendant's "extensive history of criminal misconduct" and the "ongoing pattern" of criminal misconduct.
In ruling on defendant's Romero motion, the trial court was 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 [three strikes law], 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.)
"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. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve 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." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
On appeal, defendant reweighs the factors considered by the trial court, but does not demonstrate that the trial court abused its discretion.
Defendant asserts that his 44-month sentence "for cracking a flat-screen television and causing a scraped knee was overkill." However, viewed in the light favorable to the trial court's conclusions, the facts at trial recounted above show that on one occasion defendant slapped the pregnant victim in the face and on the other occasion, two days after she left the hospital following a caesarian birth, he pushed her down twice, causing a scratch on her arm, as well as a scratched knee. Therefore, defendant's version of the facts of the two current criminal incidents is unduly rosy. For the same reason, we are not persuaded by defendant's efforts to cast blame on the victim for provoking him, thus minimizing his actions. The trial court could rationally conclude that the victim, who wanted to reconcile with defendant, had minimized his culpability out of a misguided sense of love and loyalty.
Defendant points to the age of the strike, some 17 years old, and argues it is too remote to be considered. However, the strike was not properly viewed as remote because of defendant's intervening criminality, including prior violence. (See People v. Philpot (2004) 122 Cal.App.4th 893, 906-907; People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
In short, defendant has not demonstrated that the trial court misapplied relevant factors or otherwise abused its discretion in concluding defendant fell within the spirit of the three strikes law.
The trial court awarded defendant 115 days of actual custody credit and 56 days of conduct credit. Pursuant to our miscellaneous order No. 2010-002, we deem defendant to raise the issue whether recent statutory amendments would increase his presentence conduct credit award. However, defendant's robbery strike renders him ineligible for application of the more generous conduct credit formula recently enacted. (Pen. Code, §§ 667.5, subd. (c)(9); 4019, subds. (b) & (c) [as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, eff. Sept. 28, 2010].)
The judgment is affirmed.
We concur: BLEASE, Acting P. J. HULL , J.
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