IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
March 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
EXZADRIAN VAN WILLIAMS, DEFENDANT AND APPELLANT.
Super. Ct. No. 62-089978
The opinion of the court was delivered by: Blease, Acting P. J.
P. v. Williams
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Exzadrian Van Williams pleaded no contest to possession of narcotics (Health & Saf. Code, § 11350, subd. (a)) and admitted a strike, in exchange for the dismissal of other charges and a sentence lid of 32 months, with the understanding that the court would consider a Romero motion to strike the strike (see People v. Superior Court Romero (1996) 13 Cal.4th 497). The factual basis for the plea shows that on May 9, 2009, defendant possessed .24 grams of cocaine, and he had a prior first degree burglary conviction.
After Judge Nichols denied the Romero motion, Judge Dawson sentenced defendant in accordance with the bargain. The court awarded defendant 89 days of actual presentence credit and 44 days of presentence conduct credit.
Defendant timely filed this appeal. He contends Judge Nichols improperly denied his Romero motion. We affirm.
The record before the trial court at the Romero hearing showed that defendant was born in 1972. His adult criminal record began with a conviction for felony grand theft in 1990, soon followed by convictions in 1991 for forgery and access card forgery, leading to defendant's first prison term. After two parole violations, he was convicted in 1996 of knowing receipt of stolen property and sentenced to his second prison term. In 2001 he was convicted of residential burglary and grand theft from an elderly person and again sentenced to prison, this time for 12 years. The total restitution ordered in the strike case exceeded $300,000. In 2009, the year of the current offense, defendant was returned to prison on a parole violation.
Defendant's motion argued the current offense was minor, nonviolent and did not evidence sophistication: after defendant was approached by a peace officer, he admitted smoking cocaine to relieve stress, and the officer found a narcotics pipe on him. When the officer took defendant to jail, defendant was found in possession of .24 of a gram of cocaine. The strike involved taking furniture from a home. Defendant alleged he had good prospects and had a solid family support system in place.
Judge Nichols denied the Romero motion, noting that the "offenses in 2001 were very serious" because of the amount of the victim's losses. Further, defendant had served three prior prison terms and had been on parole from the strike conviction at the time of the instant offense.
In ruling on the Romero motion, Judge Nichols 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 Strike's Law'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.)
"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.'"' [Citation.] 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 reargues the relevant factors, but he does not demonstrate that Judge Nichols abused her discretion. Although defendant's record of criminality is not violent, it is persistent. As Judge Nichols found, the huge losses to the victims in the strike case--over $300,000--as well as the 12-year term imposed, show that was a very serious case, albeit not violent. Defendant had not completed his parole for that case when he committed the instant offense, after an earlier parole violation. Further, before the strike conviction defendant had served two prior prison terms, and had violated parole twice. His first felony was in 1990, at the age of 18. His criminality since then has been persistent.
Although the amount of cocaine in this case was small, and defendant's record does not reflect violence, we cannot say that Judge Nichols abused her discretion in concluding that defendant fell within the spirit of the Three Strikes Law.
The judgment is affirmed.
We concur: HULL, J. ROBIE, J.