(Super. Ct. No. CR100186)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Leighton James Dupree was found guilty by a jury of second degree burglary. (Pen. Code, § 459.)*fn1 The jury was unable to reach a verdict on a charge of second degree robbery. (§ 212.5, subd. (c).) In a bifurcated proceeding, the jury found true three prior strike convictions (§ 667, subds. (b)-(i)), one of which the People later conceded did not constitute a strike. Additionally, defendant admitted having served two prior prison terms. (§ 667.5, subd. (b).) Defendant was sentenced to state prison for an indeterminate term of 25 years to life plus a determinate term of two years.
Defendant appeals, contending the trial court abused its discretion by denying his request to dismiss his prior strike convictions. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 12, 2010, defendant, who was 62 years old, entered a bank and asked a teller to see the manager. When the teller asked him why he wanted to speak to the manager, defendant replied, "[B]elieve it or not, this is a robbery." Defendant followed the teller as she went to notify the branch services manager, who went to get the branch manager. Defendant then followed the teller back to her window. Approximately 30 seconds later, the bank manager approached and asked defendant what she could do for him. Defendant told her "this is a robbery" and "give me your money." The bank manager removed $373 from the teller's cash drawer and gave it to defendant. Defendant put the money in his jacket pocket and walked out of the bank. He waited for the signal light to change, then crossed the street in the crosswalk, and proceeded down the sidewalk at a normal pace. He was apprehended as he walked down the street.
Once handcuffed, defendant stated, "[A]ll I did was rob a bank." During a police interview later that day, he explained that he had lost his job the day before and needed money, and that he decided to rob the bank before entering. Defendant stated he had been "drinking since Christmas" and that he drank some beer that morning. However, the police detective who conducted the interview testified that defendant did not have any difficulty recalling events or communicating during the interview and did not appear to be under the influence of alcohol. Bank personnel also testified that defendant did not appear to be intoxicated during the robbery. Based on a blood test several hours after the offense, it was estimated that defendant's blood-alcohol content could have been between 0.16 and 0.19 percent at the time of the offense.
At trial, defendant testified he was first diagnosed as an alcoholic in 1970 and that he lost his job shortly before the incident at the bank because he was drinking and did not show up for work. He described himself as a binge drinker and stated that, before his arrest, he had been on a binge since a couple of days before Christmas. Defendant testified he drank beer on the morning of his arrest, as well as the night before. He maintained he recalled going out and making various stops that day, and that the next thing he remembered was sitting on the sidewalk with a police officer standing behind him. He stated he did not remember entering the bank or committing the robbery. Defendant testified he had experienced blackouts before from drinking, and he believed he had suffered a blackout on this occasion.
A forensic psychiatrist who met with defendant and had reviewed his criminal and medical records testified that defendant's history suggested he had some tolerance to alcohol and his conduct after the robbery was consistent with impaired judgment.
Defendant had a 1987 strike conviction in Washington for first degree burglary and assault with great bodily injury, stemming from an incident in which he choked and beat his common law wife's 69-year-old father to obtain money from him and his wife. In 1996, defendant was convicted of robbery -- another strike -- in which, according to the People, he robbed a bank, then led the police on a high speed car chase during which he hit another vehicle. Defendant was sentenced to 12 years in state prison for this offense. Defendant also had convictions in 1965 for second degree burglary, in 1973 for robbery,*fn2 in 1981 for vehicle theft, in 1984 for assault and ...