People v. Wallravin CA2/6 ( 2022 )

Filed 2/17/22 P. v. Wallravin CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309292
(Super. Ct. No. 19F-09029)
Plaintiff and Respondent, (San Luis Obispo County)
v. ORDER MODIFYING
OPINION AND DENYING
MICHAEL ISODOR REHEARING
WALLRAVIN, [NO CHANGE IN
JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on February 2,
2022, be modified as follows:
1. On page 14, the first paragraph is modified to read:
The prosecutor asked, “Is the court finding there was
an emergency under CalECPA?”1 The court declined
1
California’s Electronic Communications Privacy Act
(§§ 1546-1546.4).
to make a finding and responded, “I am not. So that’s
part of the unease that I sit with here, but I see them
as different standards.” It described Judge Harman’s
denial of the application as “the final word on that
issue, at least until the Appellate Court reviews it.”
2. On page 15, after the first full paragraph, the
following paragraph is added:
The trial court here found “some element” of risk of
death and great bodily injury, escape, and
destruction of evidence. This satisfied both the
Fourth Amendment’s “exigent circumstances”
standard, and the narrower CalECPA “emergency”
standard.
There is no change in judgment.
Appellant’s petition for rehearing is denied.
GILBERT, P. J. YEGAN, J. TANGEMAN, J.
2
Filed 2/2/22 P. v. Wallravin CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309292
(Super. Ct. No. 19F-09029)
Plaintiff and Respondent, (San Luis Obispo County)
v.
MICHAEL ISODOR
WALLRAVIN,
Defendant and Appellant.
Michael Isodor Wallravin appeals from the judgment
after the jury found him guilty of second degree robbery (Pen.
Code, § 211)2 and attempted second degree robbery (§§ 664/211)
and found true allegations that he was previously convicted of a
serious felony (§ 667, subd. (a)) and two prior strikes (§§ 667,
subds. (d) & (e), 1170.12, subds. (b) & (c)). The trial court
sentenced him to 25 years to life in state prison.
2
Subsequent undesignated statutory references are to the
Penal Code.
Wallravin contends the trial court erred when it: (1)
failed to appoint two experts to examine his competence, (2)
found he was competent without substantial evidence, (3) entered
a not guilty plea on his behalf, (4) failed to suppress evidence of
the location of his phone, and (5) failed to strike one of the
strikes. He further contends that cumulative prejudice requires
reversal. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Bank robbery
One day at about 9:15 a.m., Wallravin and another
person went into Pacific Premier Bank in Paso Robles. One wore
a Halloween mask, one wore a hockey mask, and both wore
gloves and carried guns. They yelled for everyone to get down.
One pointed a handgun in the face of an employee, “[s]hoved [the
employee’s] shoulder with the barrel of the gun,” and told him to
get on the ground.
One robber pointed a gun at a teller and demanded
money from her drawer and from the teller next to her. He said
to not give him any “bait money” or “dye packs.” She gave him
$14,488. He told her he knew her name and where she lived.
One of the robbers cocked his gun, put it in the face of
the branch manager, and told her to unlock a teller’s drawer. He
told her, “I’m not F-ing around.” She unlocked the drawer but it
was empty. He told her to get money from the vault but the other
robber yelled that “they had to go.”
They took tellers’ business cards, and as they ran out
of the bank, they yelled that they knew where the tellers lived.
They got into a car and drove away.
As a Paso Robles police officer approached the bank
to respond to the robbery, someone jammed the police radio
2
communications. The sheriff’s department radio channel was
also jammed.
Wallravin purchased the getaway car the day before
the robbery. Minutes after the robbery, the car was found in an
empty field. Surveillance video showed the car approaching the
field, then a pickup truck registered to Mary Wallravin leaving
the area. Inside the truck were radio scanners capable of
interfering with radio communications of the police and sheriff’s
departments.
Bank surveillance photographs showed one suspect
had a distinctive jaw line, wore a striped gray shirt with
unbuttoned cuffs, and held a revolver with a distinctive six-inch
barrel. When police located Wallravin, his jawline and shirt
matched those in the photographs. After an officer asked
Wallravin if he had a black revolver with a six-inch barrel, “his
eyes got really big” and he tried to run away. He was carrying
keys to the pickup truck and $5,805 in cash, including “bait
money” from the bank.
Two bank employees believed that one of the suspects
had robbed the same branch two months earlier. They based
their belief on his voice, build, walk, demeanor, and similarity of
the masks and guns.
Competency proceedings and plea
Throughout the proceedings, Wallravin said he did
not consent to the proceedings and demanded proof of the court’s
jurisdiction. At arraignment, he said he wanted to represent
3
himself, but he refused to complete a Faretta waiver form. He
said, “I intend to make a guilty plea.” The court stated it was
3
Faretta v. California (1975) 422 U.S. 806.
3
clear he would not participate in the proceedings and could not
represent himself. The court appointed counsel over Wallravin’s
objection.
Appointed counsel, Bradley Cornelius, declared a
doubt as to Wallravin’s ability to assist in his defense. The court
appointed forensic psychologist Kevin Perry, Ph.D., to examine
him. Wallravin told the court, “I have no need for a doctor.”
Dr. Perry’s report, submitted in December 2019,
stated that Wallravin refused to participate in an interview. The
report stated that Wallravin “asked some relevant questions
about [Dr. Perry] and the purpose of the interview. The
statements he made were coherent and organized. There were no
obvious signs of disorganization . . . . He did not appear to be
responding to internal stimuli.” Dr. Perry talked to custody staff
and reviewed jail records, neither of which showed any
psychiatric issues. Dr. Perry concluded he was unable to form an
opinion regarding Wallravin’s competency in the absence of an
interview.
The trial court referred to Dr. Perry’s report and
stated its “inclination to say he’s presumed competent . . . since
we have no evidence otherwise.” Defense counsel responded,
“Submit on that, Your Honor.” The court ruled that Wallravin
was presumed competent and reinstated criminal proceedings.
Defense counsel said, “I think we need to enter not
guilty pleas.” Wallravin said he would not continue with the
proceedings because his name was listed in all uppercase letters
in the complaint. The court entered a not guilty plea on his
behalf. Wallravin later told the court on several occasions that
he had not entered a plea.
4
A series of attorneys declared conflicts and the court
appointed other attorneys in their place. In response to a
question by the court, one of these attorneys, Trace Milan, said
he was satisfied that Wallravin was competent.
Another attorney, Harold Mesick, told the court that
Wallravin refused to speak with him. Mesick expressed “a
serious doubt as to Mr. Wallravin’s competency.” He based his
belief on Wallravin’s “conduct in court, his demeanor, his
irrational behavior, his refusal to participate in his own defense.”
Mesick said Wallravin sent him a purported contract and then
invoiced him and the deputy district attorney $4.5 million for
alleged violations of the contract, and “tries to copyright his
name.” Mesick said Wallravin “doesn’t truly comprehend his
status.”
Mesick described a motion Wallravin wrote that
asserted the court had no jurisdiction based on pleading defects,
and claimed the robbery of a federally insured bank must be
prosecuted in federal court. Mesick said the motion “makes me
question my . . . questioning of his competency because it’s rather
artfully written.” But he nonetheless requested another
evaluation.
The court stated that the concepts Wallravin
presented were “illogical,” “bonkers,” and “bizarre.” However, the
court stated they were presented in “a coherent way,” Wallravin
was “intelligent and articulate,” and the court did not see any
“signs of mental illness.” The court said that the conduct was
“consistent with Mr. Wallravin being an adherent to certain
political theories; sovereign citizens, constitutionalists,” and did
not necessarily “constitute[] mental illness.” The court continued,
“So, if I had to guess, you are just insisting on holding this world
5
view, you are being obstinate about it, to this court’s view, to your
own disinterest.”
The court asked if Wallravin wanted doctors
appointed. He responded, “No, I don’t need that. I need to be
shown the jurisdiction.” Nevertheless, the court again suspended
criminal proceedings and appointed a second clinical
psychologist, Carolyn Murphy, Ph.D., to “rule out the possibility
that mental illness is here.”
Dr. Murphy’s report stated that Wallravin declined to
participate in the evaluation. However, he was “fluent,” “alert
and fully oriented,” and his writings were “advanced.” He had
“no known mental health history” and showed no signs of mood
disturbance, thought disorganization, delusional ideation, mania,
intellectual limitations, autism, or “any sort of mental health
condition that would give rise to a finding of incompetence.” The
report concluded, “Without more information about his history
and a full medical workup to rule out any underlying condition or
conditions that could be affecting his functioning, this examiner
simply cannot reach a conclusion as to his competence at this
time.” The report “suggested that counsel look into his
background to see if there is any history of mental health
difficulty . . . . If not, it is then suggested that the court to order
[sic] a full medical evaluation to ensure that there is no
underlying medical reason for his conduct.”
At a hearing in July 2020, the court stated it read Dr.
Murphy’s report and the previous report. Defense counsel and
the prosecution submitted on Dr. Murphy’s report. Wallravin
objected. There was no request for a medical workup or further
psychological examination. The court found that Wallravin was
6
able to cooperate with counsel but chose not to do so based on his
beliefs. The court reinstated criminal proceedings.
The court denied the “Motion to Withdraw Plea in
Order to Demurrer” that Wallravin prepared and stated that “to
the extent that that’s a barrier to you making a demurrer,” it
would address the demurrer on the merits. The court then
overruled the demurrer.
After the court scheduled a trial readiness date, the
prosecutor made a plea offer. The court asked Wallravin if he
wanted time to negotiate with the People. He responded, “I don’t
consent to none of this process.” The trial proceeded and
Wallravin was convicted by the jury.
Sentencing
After Wallravin was convicted, the trial court struck
the five-year enhancement for the prior serious felony conviction.
(§§ 667, subd. (a), 1385.) The court denied the Romero4 motion to
strike the prior strikes. The court imposed third-strike sentences
of 25 years to life for each count, to be served concurrently.
DISCUSSION
Competency examinations
Wallravin contends the trial court erred when it
failed to appoint two experts to examine his competence to stand
trial on each occasion that his counsel declared a doubt. He is
wrong.
“A person shall not be tried . . . while that person is
mentally incompetent. A defendant is mentally incompetent . . .
if, as a result of a mental health disorder or developmental
4
People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero).
7
disability, the defendant is unable to understand the nature of
the criminal proceedings or to assist counsel in the conduct of a
defense in a rational manner.” (§ 1367, subd. (a).)
If counsel informs the court that the defendant may
be mentally incompetent, criminal proceedings are suspended
until the mental competence of the defendant is determined.
(§ 1368.) “The court shall appoint a psychiatrist or licensed
psychologist, and any other expert the court may deem
appropriate, to examine the defendant. If the defendant or the
defendant’s counsel informs the court that the defendant is not
seeking a finding of mental incompetence, the court shall appoint
two psychiatrists, licensed psychologists, or a combination
thereof.” (§ 1369, subd. (a)(1).)
Here, the trial court was not required to appoint a
second expert on each occasion that a doubt was declared
“because neither defendant nor counsel expressly informed the
court during the competency hearing that defendant was not
seeking a finding of incompetence.” (People v. D’Arcy (2010) 48
Cal.4th 257, 281, italics added.) Wallravin’s statements that he
did not “need” a doctor were made in the context of his objection
to virtually every aspect of the proceedings, based on his theory
that the court lacked jurisdiction over him.
Even if Wallravin or his counsel had said he did not
seek a finding of incompetence, the court’s failure to appoint two
experts for each of the two competency examinations was
harmless. When the second competency finding was made, the
trial court considered the reports of both experts. Moreover,
“[t]he appointment of two experts . . . provides a minimum
protection for the defendant against being incorrectly found
incompetent to stand trial.” (People v. Harris (1993) 14
8
Cal.App.4th 984, 996, italics added.) Because the trial court
found him competent, he was not prejudiced by the failure to
appoint additional experts. He has not shown “‘a reasonable
probability that in the absence of the error he or she would have
obtained a more favorable result.’” (People v. Leelu (2019) 42
Cal.App.5th 1023, 1031-1032; People v. Watson (1956) 46 Cal.2d
818, 836.)
People v. Wycoff (2021) 12 Cal.5th 58, relied upon by
Wallravin, does not preclude a finding of harmless error. In
Wycoff, a psychologist appointed to assess the defendant’s
competence to represent himself volunteered the additional
opinion that he was not competent to stand trial. (Id. at pp. 77-
78.) Our Supreme Court concluded that the trial court’s “failing
to initiate the formal competency procedures set forth in sections
1368 and 1369” was not harmless under those circumstances.
(Id. at p. 91.) In contrast here, the trial court suspended criminal
proceedings and appointed psychologists to evaluate Wallravin’s
competency to stand trial. The parties submitted the issue of
competency on the doctors’ reports and did not offer additional
evidence or argument. The trial court did not err, and even if it
did, the error was harmless.
Competency finding
Wallravin contends the trial court erred when it
found him competent without substantial evidence to support
that conclusion. We disagree.
We review a finding of competency “‘in the light most
favorable to the verdict and uphold the verdict if it is supported
by substantial evidence.’” (People v. Blacksher (2011) 52 Cal.4th
769, 797.) “It shall be presumed that the defendant is mentally
competent unless it is proved by a preponderance of the evidence
9
that the defendant is mentally incompetent.” (§ 1369, subd. (f);
Blacksher, at p. 797.) There is no evidence here to rebut the
presumption of competency because there is no evidence that
Wallravin had a mental health disorder or developmental
disability.
Wallravin contends the trial court should have
ordered a medical evaluation, as Dr. Murphy suggested. This
issue is forfeited because Wallravin submitted the competency
determinations on the reports and did not request additional
evaluations. (People v. Blacksher, supra, 52 Cal.4th at p. 797.)
As noted by the trial court, Wallravin made
statements throughout the proceedings consistent with
“sovereign citizen” political beliefs. For example, he claimed that
the court had no jurisdiction over him because he had not entered
into a contract with the court, and because the complaint listed
his name in uppercase letters. (See United States v. Mitchell
(D.Md. 2005) 405 F.Supp.2d 602; Kalinowski, A Legal Response to
the Sovereign Citizen Movement (2019) 80 Mont. L.Rev. 153.)
While these views are inconsistent with basic principles of our
judicial system, they do not establish “a mental health disorder or
developmental disability.” (§ 1367, subd. (a).) On the contrary,
Wallravin demonstrated that he was literate and intelligent. He
understood the nature of the criminal proceedings but disagreed
with the court’s authority to conduct them. He was not unable to
assist counsel, but chose not to do so.
Wallravin relies upon People v. Wycoff, supra, 12
Cal.5th at p. 84, which states that our Supreme Court “ha[s]
repeatedly reaffirmed that a finding of incompetence to stand
trial can be based solely on a defendant’s ‘incapab[ility] of
. . . cooperating with counsel.’” But neither Wycoff, nor the cases
10
on which it relies, allow a finding of incompetence based on
inability to cooperate with counsel unless it is caused by a mental
health disorder. In Wycoff, the psychologist diagnosed the
defendant as suffering from “‘Paranoid Schizophrenia,’” including
“‘paranoid and grandiose delusions,’” and “directly linked
defendant’s tumultuous relationships with counsel to his
‘paranoid mental disorder.”” (Id. at pp. 76-77.) The cases cited
by Wycoff either involve mental health disorders (People v.
Pennington (1967) 66 Cal.2d 508, 512 [schizophrenia or paranoia,
hallucinations, “psychotic furor”]) or found an insufficient basis to
require competency hearings (People v. Sattiewhite (2014) 59
Cal.4th 446, 465-466; People v. Lewis (2008) 43 Cal.4th 415, 525-
526). Here, there is no evidence that Wallravin’s failure to
cooperate with counsel was based on a mental health disorder.
Entry of not guilty plea
Wallravin contends the trial court improperly entered
a not guilty plea on his behalf. The issue is forfeited, and any
error is harmless.
“Unless otherwise provided by law, every plea shall
be entered or withdrawn by the defendant himself or herself in
open court.” (§ 1018; People v. Reza (1984) 152 Cal.App.3d 647,
651.) “If the defendant refuses to answer the accusatory
pleading, by demurrer or plea, a plea of not guilty must be
entered.” (§ 1024.)
On the suggestion of his counsel, the court entered a
not guilty plea on Wallravin’s behalf. Wallravin later moved to
withdraw the plea for the specific purpose of eliminating a
procedural barrier to his demurrer. (See §§ 1003, 1007; Hudson
v. Superior Court (2017) 7 Cal.App.5th 999, 1017.) By failing to
move to withdraw the plea to enter a different plea, he forfeited
11
the issue. (See People v. Turner (2002) 96 Cal.App.4th 1409, 1413
[failure to move to withdraw guilty plea forfeited claim it was not
entered knowingly or intelligently].)
Despite Wallravin’s consistent objections to the
court’s jurisdiction, the court should have asked him how he pled.
(§§ 1018, 1024.) But Wallravin was not denied the opportunity
for a more favorable outcome. When the prosecution made a plea
offer, Wallravin responded only that he did not consent to the
proceedings, and never sought to accept the offer. Any
irregularity in the entry of the plea was harmless because “we
cannot see that any of the substantial rights of the defendant
were in any way prejudiced.” (People v. McCoy (1886) 71 Cal.
395, 396 [not guilty plea by counsel after defendant stood mute].)
Motion to suppress
Wallravin contends the trial court erred when it
failed to suppress evidence derived from the location of his phone
after the robbery. There was no error.
1. Facts
Shortly after the robbery, police asked AT&T to
“ping” Wallravin’s cell phone to obtain its GPS coordinates.5 An
officer went to the location and saw Wallravin “in the open” in a
commercial area near a car wash. The officer contacted
Wallravin, who had the phone and was wearing a shirt similar to
that shown in the bank surveillance photographs. He carried
keys to the truck and $5,805 in cash, including “bait money” from
the bank. Police searched the phone and found a text message
5
A “ping” refers to a service provider sending a signal to a
cell phone to identify its real-time GPS location. (United States v.
Riley (6th Cir. 2017) 858 F.3d 1012, 1014, fn. 1.)
12
from the night before the robbery that stated, “Tomorrow it’s on
and cracking after nine.”
Ten days later, Detective Bryce Lickness submitted
an affidavit requesting approval of the “ping” based on an
emergency. Judge Dodie Harman denied the request because
exigent circumstances had not been shown.
2. Hearing
Prior to trial, Wallravin moved to suppress all
evidence derived from AT&T obtaining his cell phone location.
(§§ 1538.5, 1546.4, subd. (a).)
Lickness testified that he believed there were exigent
circumstances because a bank robbery had just occurred and the
suspects pointed firearms at the tellers, told them to get on the
ground, took the tellers’ business cards, and threatened them.
Jamming law enforcement’s radio frequencies “introduced
another high level of danger for the public and law enforcement.”
He knew that one of the suspects may have committed an earlier
armed robbery of the same bank. He submitted the application
10 days after the ping because he was working on other aspects of
the case and was not aware of the three-day deadline until he
began working on the application. (§ 1546.1, subd. (h).)
The court found probable cause that Wallravin
committed the crimes, that police acted in good faith, and there
was a “well-founded belief” that the suspect “presented a danger.”
The court found exigent circumstances pursuant to the Fourth
Amendment based on the risk of death and great bodily injury,
escape, and destruction of evidence. The court stated, “There was
some element of all those things present.” The court suppressed
the “electronic information” obtained from the ping but not
evidence obtained when Wallravin was located.
13
The prosecutor asked, “Is the court finding there was
6
an emergency under CalECPA?” The court responded, “I am not.
So that’s part of the unease that I sit with here, but I see them as
different standards.” It described Judge Harman’s denial of the
application as “the final word on that issue, at least until the
Appellate Court reviews it.”
3. Discussion
“The standard of appellate review of a trial court’s
ruling on a motion to suppress is well established. We defer to
the trial court’s factual findings, express or implied, where
supported by substantial evidence. In determining whether, on
the facts so found, the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment.
[Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
CalECPA restricts government access to “electronic
communication information,” which includes the “location of the
sender or recipients at any point during the communication.”
(§ 1546, subd. (d).) Except as provided, a government entity may
not “[c]ompel the production of or access to electronic
communication information from a service provider.” (§ 1546.1,
subd. (a)(1).) Nor may a government entity “[a]ccess electronic
device information by means of physical interaction or electronic
communication with the electronic device.” (§ 1546.1, subd.
(a)(3).) But CalECPA does allow a government entity to access
electronic device information if it, “in good faith, believes that an
emergency involving danger of death or serious physical injury to
6
California’s Electronic Communications Privacy Act
(§§ 1546-1546.4).
14
any person requires access to the electronic device information.”
(§ 1546.1, subd. (c)(6).)
In People v. Bowen (2020) 52 Cal.App.5th 130, 137,
the court held that an emergency justified pinging a cell phone,
without prior judicial authorization, of a suspect who had
“‘brutally stabbed’” the victim near a preschool and a shopping
center, and who was “‘still possibly armed.’” The court stated,
“‘“A long-recognized exception to the warrant requirement exists
when ‘exigent circumstances’ make necessary the conduct of a
warrantless search. . . . ‘“[Ex]igent circumstances” means an
emergency situation requiring swift action to prevent imminent
danger to life or serious damage to property, or to forestall
imminent escape of a suspect or destruction of evidence.’”’” (Id.
at p. 138, citing People v. Panah (2005) 35 Cal.4th 395, 465.)
Wallravin contends that his release from custody
after his arrest shows that officers were not concerned about the
safety of witnesses or others. This contention fails because the
record does not establish what official or agency released him
from custody, or their reason for doing so.
Nor was suppression of evidence warranted based on
delay in seeking judicial approval 10 days after the ping rather
than the three court days provided by statute. (§ 1546.1, subd.
(h).) CalECPA provides that a party “may move to suppress any
electronic information obtained or retained in violation of the
Fourth Amendment to the United States Constitution or of this
chapter.” (§ 1546.4, subd. (a).) But the exclusionary remedy is
not required for every technical violation of CalECPA, and is not
warranted here. (See United States v. Chavez (1974) 416 U.S.
562, 575 [“suppression is not mandated for every violation” of
15
analogous federal statute]; People v. Head (1994) 30 Cal.App.4th
7
954 [no suppression for late filing of search warrant return].)
Cumulative error
Wallravin contends the combination of the asserted
errors rendered the resulting trial unfair. We disagree.
“‘The “litmus test” for cumulative error “is whether
defendant received due process and a fair trial.”’” (People v.
Rivas (2013) 214 Cal.App.4th 1410, 1436.) Any irregularities
here in the competency proceedings, entry of the not guilty plea,
and late filing of the cell phone affidavit did not deny Wallravin a
fair trial.
Romero motion
Wallravin contends the trial court abused its
discretion when it failed to strike one of the strikes. There was
no abuse of discretion.
A trial court has the discretion to dismiss a prior
violent or serious felony conviction pursuant to the Three Strikes
law. (Romero, 13 Cal.4th at p. 504.) We review the trial court’s
decision to not dismiss a strike for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 374.)
In reviewing a ruling whether to strike a strike, we
“must 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 scheme’s
7Based on our conclusion that the ping was justified by a
good-faith belief of exigent circumstances, we do not consider the
Attorney General’s alternate theories.
16
spirit.” (People v. Williams (1998) 17 Cal.4th 148, 161.) Those
factors support denial of the Romero motion here.
The current crimes were serious—bank robbery and
attempted robbery in which bank employees were ordered to the
ground and guns pointed in their faces. The crimes were
sophisticated, with the robbers wearing masks and gloves,
switching vehicles, and jamming police radios. Although perhaps
not the “mastermind,” Wallravin’s role was neither “passive” nor
“minor.”
The trial court imposed a three-strikes sentence of 25
years to life based on two prior robbery convictions from 1991.
(§§ 211, 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) In a
Romero motion, the court may consider the age of the prior
offenses. (People v. Avila (2020) 57 Cal.App.5th 1134, 1141.) But
the court may not strike a prior solely because it is remote in
time. (People v. Humphrey (1997) 58 Cal.App.4th 809, 812-813
[error to strike 20-year-old strike]; People v. Pearson (2008) 165
Cal.App.4th 740, 749-750 [strikes 24, 15, and 10 years old
properly imposed].)
Wallravin had been crime free between his release
from prison in 2009 and the current offense in 2019. But his
background included other criminal convictions, including a 2004
grand theft in which he pushed a woman down and took her
purse. (§ 487, subd. (c).) His record reflected a large number of
theft convictions.
The trial court found no “reason to believe that . . . a
mental health condition played any part in this incident.” And
although Wallravin was 62 years old and a sentence of 25 years
to life might result in him spending the rest of his life in prison,
“middle age, considered alone, cannot take a defendant outside
17
the spirit of the [Three Strikes] law.” (People v. Strong (2001) 87
Cal.App.4th 328, 332.)
In denying a Romero motion, “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, supra, 33 Cal.4th 367, 377.) The trial court here did
not abuse its discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
18
Jesse J. Marino and Dodie A. Harman, Judges
Superior Court County of San Luis Obispo
______________________________
The Law Office of John Derrick and John Derrick for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.