People v. Avila

• Citation: 272 Cal.Rptr.3d 127,57 Cal.App.5th 1134
• Decision Date: 30 November 2020
• Docket Number: B294632
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rene AVILA, Defendant and Appellant.

57 Cal.App.5th 1134

272 Cal.Rptr.3d 127

The PEOPLE, Plaintiff and Respondent,

v.Rene AVILA, Defendant and Appellant.

B294632

Court of Appeal, Second District, Division 3, California.

Filed November 30, 2020

Certified for Partial Publication.^*

Tracy L. Emblem, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah Hill, Michael C. Keller and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

DHANIDINA, J.

A jury found Rene Avila guilty of attempted robbery and of attempted extortion. On appeal, he contends that reversal of the judgment is required because gang evidence was erroneously admitted against him and there is insufficient evidence to support attempted extortion. In the unpublished portion of this opinion, we reject these contentions. However, in the published portion of this opinion, we find that the trial court abused its discretion by denying Avila's Romero¹ motion and, moreover, the sentence imposed on Avila is cruel or unusual punishment under our California Constitution. We therefore remand for resentencing.

BACKGROUND

On February 19, 2018, Bernardino Castro was selling oranges and flowers at a freeway off-ramp. Castro speaks Spanish and understands some English. Using a Spanish speaking companion to speak to Castro, Avila told Castro to pay him $100 in rent in order to sell at the location, claiming that it was his "barrio," which Castro understood as a reference to gangs. When Avila said "money," Castro understood that Avila was asking for $100. Avila left but returned the next day and asked for the money. When Castro said he didn't have the money, Avila squashed two bags of oranges and left. Castro testified that the interaction with Avila made him "nervous" and that he thereafter sold his oranges at a different location because he was afraid Avila would do something to him.

The next day, February 21, 2018, Pedro Blanco-Quiahua was selling oranges near the same freeway off-ramp. Avila approached and threw a bag of oranges on the ground, stomped on them, and said, "money, money, money." Avila then stomped on another bag of oranges. Scared, Blanco-Quiahua backed away. Avila left. A witness who worked nearby had noticed Avila sitting for more than 20 minutes in front of a shop. The witness saw Avila tossing bags of oranges into the dirt and heard Avila say, "[m]oney, give me money."

Based on this evidence, a jury found Avila guilty of the attempted second degree robbery of Blanco-Quiahua ( Pen. Code,² §§ 664, 211 ; count 1) and of the attempted extortion of Castro ( §§ 664, 518 ; count 2). On November 30, 2018, the trial court denied Avila's Romero motion to strike a prior conviction and sentenced him to 25 years to life plus 14 years.

DISCUSSION

I.–II.^**

III. Romero

Avila admitted having three prior strikes within the meaning of the "Three Strikes" law. The trial court denied Avila's Romero motion to strike any of them. Avila now contends that the trial court abused its discretion by denying his motion. We agree.

While the purpose of the Three Strikes law is to punish recidivists more harshly ( People v. Davis (1997) 15 Cal.4th 1096, 1099, 64 Cal.Rptr.2d 879, 938 P.2d 938 ), not all recidivists fall within the spirit of that law. A trial court therefore may strike or dismiss a prior conviction in the furtherance of justice. (§ 1385, subd. (a); Romero , supra , 13 Cal.4th at p. 504, 53 Cal.Rptr.2d 789, 917 P.2d 628.) When considering whether to strike a prior conviction, the factors a court considers are whether, in light of the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of the defendant's background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though the defendant had not previously been convicted of one or more serious and/or violent felonies. ( People v. Williams (1998) 17 Cal.4th 148, 161, 69 Cal.Rptr.2d 917, 948 P.2d 429.)

We review a trial court's ruling on a Romero motion under the deferential abuse of discretion standard, which requires the defendant to show that the sentencing decision was irrational or arbitrary. ( People v. Carmony (2004) 33 Cal.4th 367, 375, 378, 14 Cal.Rptr.3d 880, 92 P.3d 369.) It is not enough that reasonable people disagree about whether to strike a prior conviction. ( Id. at p. 378, 14 Cal.Rptr.3d 880, 92 P.3d 369.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm ... [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." ( Ibid. ) Only extraordinary circumstances justify finding that a career criminal is outside the Three Strikes law. ( Ibid. ) Therefore, "the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." ( Ibid. )

That only extraordinary circumstances justify deviating from the three strikes sentencing scheme does not mean such cases do not exist. ( People v. Vargas (2014) 59 Cal.4th 635, 641, 174 Cal.Rptr.3d 277, 328 P.3d 1020.) And the abuse of discretion standard is neither "empty" ( People v. Williams , supra , 17 Cal.4th at p. 162, 69 Cal.Rptr.2d 917, 948 P.2d 429 ) nor are all recidivists the kind of career criminals appropriately considered under that scheme. Cumulative circumstances, including that a defendant's crimes were related to drug addiction and the defendant's criminal history did not include actual violence, may show that the defendant is outside the spirit of the Three Strikes law. ( People v. Garcia (1999) 20 Cal.4th 490, 503, 85 Cal.Rptr.2d 280, 976 P.2d 831.) Also, an abuse of discretion may be found where a trial court considers impermissible factors, and, conversely, does not consider relevant ones. ( People v. Carmony , supra , 33 Cal.4th at p. 378, 14 Cal.Rptr.3d 880, 92 P.3d 369.)

That is precisely what occurred here. The trial court did not consider factors relevant to the nature and circumstances of Avila's prior strikes. Avila committed his first strike offenses (a second degree robbery and an assault with a knife) on the same occasion⁶ in 1990 when he was 18 years old.⁷ According to the preliminary hearing transcript in that case, Avila and two accomplices robbed a man who was filling newspaper vending machines. The man testified that Avila held a knife to his throat, and the man's arm was cut when the man threw his arm up. Avila was paroled in 1991. Then, in 1992, when Avila was 20 years old, he committed his last and most recent strike offense, a second degree robbery, as well as possession of a firearm by a felon. He was sentenced to 10 years in prison.⁸

In evaluating these prior strikes, the trial court appeared to agree they were remote in time but then noted that section 667, subdivision (c)(3) provides that the time between a strike and the current felony does not affect the imposition of sentence. The trial court said it was "not quite sure how that coincides with this [case], but so be it." However, all that section suggests is that the remoteness of prior strikes alone is not sufficient to take a defendant out of the spirit of the Three Strikes law. Still, remoteness remains a factor in mitigation. (See People v. Strong (2001) 87 Cal.App.4th 328, 342, 104 Cal.Rptr.2d 490 ; People v. Bishop (1997) 56 Cal.App.4th 1245, 1250–1251, 66 Cal.Rptr.2d 347.) Avila's prior strikes were from 1990 and 1992, so they were 28 and 26 years old, respectively, when he committed the current offenses in 2018. That is a significant lapse of time to say the least.

It is also significant that Avila committed his prior strikes when he was under the age of 21. Had he committed those crimes now while that age, he would be considered a youth offender entitled to expanded parole consideration. (See, e.g., § 3051, subd. (a)(1) [youth offender is a person 25 years old or younger].) The trial court noted that Avila's age when he committed the strikes does not preclude a sentence, though it comes into play when he is eligible for parole. That much is true. But it is not the salient point for the purposes of Romero . Avila's age when he committed his strikes, even if not dispositive, is plainly relevant to the nature and circumstances of the strikes and could be a mitigating factor. This is in line with the increasing recognition that young adults are constitutionally different from adults for sentencing purposes because of their diminished culpability and greater prospects for reform. (See, e.g., In re Jenson (2018) 24 Cal.App.5th 266, 276, 233 Cal.Rptr.3d 868 & cases cited therein.) That we are considering what sentence to impose on the middle-aged Avila does not preclude consideration that it was a youthful Avila who committed the prior strikes, for the purposes of Romero . The trial court, however, mistakenly believed that it could not consider this mitigating factor at sentencing.

Instead, the trial court's decision that Avila fell within the spirit of the Three Strikes law hinged primarily on the nature and circumstances of his current offenses. The trial court noted that Avila had victimized vulnerable people eking out a living by selling fruit. What right, the trial court questioned, did Avila have to charge rent to people selling things on the street? The trial court added that Avila committed his current crimes in a "violent" and "brutal" way by intimidating victims making just $300 a week. "His acts really amounted to thuggery." The trial court then speculated that had someone not called the police, "who knows what would have happened."

Without a doubt, Avila's conduct was offensive. Preying on some of the most...