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The People v. Paul Robert Ortega

August 20, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PAUL ROBERT ORTEGA, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F01556)

The opinion of the court was delivered by: Nicholson , J.

P. v. Ortega CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Paul Robert Ortega pleaded guilty to assault with a deadly weapon while confined in state prison (count one; Pen. Code, § 4501)*fn1 and possessing a sharp instrument while confined in state prison (count two; § 4502, subd. (a)), and admitted four prior strikes (§§ 667, subds. (b)-(i), 1170.12).*fn2 The trial court denied defendant's request to strike three strikes (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) and sentenced defendant to a term of 25 years to life, consecutive to his current term.*fn3

Defendant contends the trial court abused its discretion by denying his request for Romero relief because (1) the severity of his overall sentence warranted striking one or more strikes, and (2) his strikes resulted from a single act or indivisible course of conduct. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant's Present Offenses

According to the parties' stipulation, on or about November 2, 2009, defendant, an inmate at California State Prison, Sacramento, assaulted the victim with a metal weapon over six inches long and sharpened to a point. Defendant chased the victim down, making stabbing motions. When the victim fell to the ground, defendant got on top of him and stabbed him 10 or more times.

Defendant's Strikes

On or about March 5, 2004, defendant was convicted of three counts of attempted murder (§§ 664/187) and one count of shooting at an occupied vehicle (§ 246).

Defendant's Request for Romero Relief

After entering his plea, defendant filed a request that the trial court strike all but one of his strikes for sentencing purposes. He argued: (1) Because he was already serving a life sentence, the lowest possible term on the current offense would defer his earliest possible parole date until he was in his sixties. Therefore, even if the court struck all but one strike, defendant's punishment would remain substantial and within the spirit of the "Three Strikes" law, but if the court did not strike the strikes his punishment would be excessively severe. (See People v. Garcia (1999) 20 Cal.4th 490, 503 (Garcia); People v. Bishop (1997) 56 Cal.App.4th 1245, 1250 (Bishop).)*fn4 (2) Because defendant's prior strikes arose from an indivisible course of conduct, the court had discretion to strike one or more of them. (People v. Benson (1998) 18 Cal.4th 24, 36.) (3) Because the prior strikes were based on a single act, it would be an abuse of discretion not to strike all but one of them. (People v. Burgos (2004) 117 Cal.App.4th 1209, 1215-1216.)

The People replied that defendant clearly fell within the parameters of the Three Strikes law under the test of People v. Williams (1998) 17 Cal.4th 148. They also asserted: in addition to his four strikes, defendant, a gang member, was convicted in the same case of possession of a loaded firearm and possession of an assault rifle; when defendant committed those offenses, he was on probation for a drug offense; while in ...


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