(Super. Ct. Nos. 09F8955, 09F9520)
The opinion of the court was delivered by: Murray , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Gregory Duane Short pled guilty in 2010 to first degree burglary and receiving stolen property and admitted a prior strike conviction for a 1995 robbery, three prior prison commitment allegations and an on-bail enhancement. He was sentenced to 14 years four months in state prison.
On appeal, defendant contends the trial court abused its discretion by not dismissing his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) or, alternatively, that the trial court failed to make an informed exercise of its discretion by not considering alternative sentencing options.
FACTUAL AND PROCEDURAL BACKGROUND
1995 Prior Strike Conviction
On February 6, 1995, a loss prevention officer at Shopko observed defendant take a video game, hide it in his pants, and leave the store without paying for it. The officer, along with another security guard, approached defendant outside of the store, displayed a badge and identified himself as store security. Defendant ran and both officers gave chase. After running approximately 75 yards, defendant suddenly stopped, turned, put his hand under his jacket and said, "I've got a gun." The pursuing officer who was closest to defendant had too much momentum to stop in response to defendant's threat. That officer tackled defendant and tried to subdue him. Defendant resisted, waving his arms around and kicking his feet at the officers. During the struggle, defendant deliberately kicked the second security guard in the face. Defendant was eventually handcuffed and the officers had to carry him back into the store by force.
Defendant was convicted of robbery (Pen. Code, § 211)*fn1 and placed on formal probation for three years. The following year, he violated his probation and was sentenced to prison.
Victim Matthew Kluttz -- Case No. 09F9520
In August 2009, Matthew Kluttz returned home from work to find his home had been burglarized. Among the items missing were a Glock 26 nine-millimeter handgun, some jewelry, a safe, an iPod and a laptop computer equipped with a Lo-Jack security system. Several days later, utilizing the Lo-Jack system, police were able to determine that defendant was using the computer at a residence in Redding, accessing the website "classmates.com" and making purchases from pornographic websites with his credit card. Two days later, police determined that Kevin Velasquez was using the stolen computer to access the Internet from his home in Redding. Investigators confronted Velasquez there and recovered the computer. Velasquez told them someone in his family had purchased the computer from an unknown female for $100.
A search of the computer revealed pictures of defendant and Christina Miller. Kluttz's neighbor recognized the people in the pictures as individuals he had seen before and after the burglary. Arrest warrants were issued for defendant and Miller.
On September 24, 2009, after "stak[ing] out" a residence, sheriff's deputies arrested defendant and Miller during a traffic stop. Deputies searched the car and found a backpack containing a tool with a sanding stone attachment and an iPod with the serial number removed. Miller's purse contained an iPod similar to the one stolen from Kluttz. The serial number had been removed from that device as well.
Defendant was not initially forthcoming with information related to the burglary. At first he claimed he had borrowed the laptop from a friend. After 45 minutes to an hour of denial and after the sheriff's deputy interrogating defendant confronted him with the evidence against him, defendant eventually admitted he entered the Kluttz home and took the laptop computer and handgun while Miller waited outside. Defendant said he was under the influence of "dust off" (compressed air ordinarily used to clean electronic devices) and claimed he did not remember much about the incident as a result. He did, however, provide information leading to the eventual recovery of the stolen handgun.
Victim Melanie Gomez -- Case No. 09F8955
On November 29, 2009, Melanie Gomez returned home at 2:00 a.m. from an evening out at the Showboat Lounge to find that her home had been burglarized and her jewelry collection worth approximately $10,000 stolen. Gomez suspected Bradley Wilkerson. The prior summer, Wilkerson and his girlfriend, who was the bartender at the Showboat Lounge, had shown up at Gomez's home uninvited, during which they both used the bathroom in the master bedroom. Gomez believed Wilkerson saw her jewelry on that occasion. Gomez told sheriff's deputies that Wilkerson had been at the Showboat Lounge the night of the burglary and was accompanied by defendant. She saw Wilkerson leave the lounge at 1:00 a.m., but defendant stayed. Gomez said she observed defendant watching her and texting on his cell phone after Wilkerson left.
On November 30, 2009, at approximately 3:45 a.m., officers conducted a traffic stop of a car driven by defendant. Wilkerson and Miller were passengers in the car. When officers searched defendant, they found a Taser and pepper spray. In the car, officers found a bag of jewelry, a crowbar, a pair of gloves, and a can of "dust off." Gomez identified defendant during an in-field showup. She also identified the jewelry recovered from defendant's car, which was only a fraction of the collection stolen from her home. Defendant denied any knowledge of the jewelry, but stated he had overheard Wilkerson on the phone telling someone he had taken some jewelry to the home of Megan Deffebach, Wilkerson's girlfriend, and hid it behind a water heater. Defendant, Wilkerson, and Miller were arrested. Defendant was out on bail from charges related to the Kluttz burglary at the time of this arrest.
In connection with the Kluttz burglary, defendant was charged in case No. 09F9520 with first degree residential burglary (count 1 -- § 459), and receiving stolen property (count 2 -- § 496, subd. (a)). The complaint also alleged a 1995 strike allegation and a prior serious felony conviction allegation, both relating to a 1995 robbery conviction (§§ ...