People v. Carlos CA1/3 ( 2022 )

Filed 5/19/22 P. v. Carlos CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A161689
v. (San Francisco City & County
ARMANDO LOPEZ CARLOS, Super. Ct. Nos. SCN220793,
11019305)
Defendant and Appellant.
While he was on parole, Armando Lopez Carlos — who had seven prior
strike convictions — burglarized a woman’s house and seriously injured her.
A jury convicted Carlos of two counts of first degree burglary and receiving
stolen property. The trial court denied Carlos’s motion to dismiss the prior
strike convictions (People v. Superior Court (Romero) (1996) 13 Cal.4th 497)
and sentenced him under the “Three Strikes” law.
On appeal, Carlos contends the evidence does not support convictions
for “two distinct burglaries.” He also argues the trial court abused its
discretion in denying his Romero motion. The parties agree the abstract of
judgment must be corrected, and we modify it. In all other respects, we
affirm.
1
BACKGROUND
In 2011, the prosecution charged Carlos with several crimes. As
relevant here, the operative information alleged two counts of first degree
burglary (Pen. Code, § 459; counts 2 & 3),1 and felony receiving stolen
property (§ 496, subd. (a); count 4), and that Carlos committed the offenses
while on parole (§ 1203.085, subd. (a)). As to count 2, the information alleged
Carlos committed the burglary while a person other than an accomplice was
present (§ 667.5, subd. (c)(21)), and that Carlos personally inflicted great
bodily injury on a nonaccomplice in the commission of the crime (§ 12022.7,
subd. (a)). The information further alleged Carlos had seven prior strike
convictions (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)) and seven serious
felony convictions (§ 667, subd. (a)(1)). At the prosecution’s request, the trial
court reduced count 4 to a misdemeanor. At trial, the parties offered the
following evidence:
On a July 2011 afternoon, Kelly K. returned home from work to find
her living room in disarray. Something seemed amiss, so Kelly went upstairs
to investigate. In her bedroom, Kelly found a stranger — later identified as
Carlos — standing by her bed wearing latex gloves. Kelly’s bedroom had
been ransacked, and her belongings were strewn “all over the floor.” When
Kelly asked Carlos what he was doing in her bedroom, he charged at her and
knocked her into a nightstand. Kelly’s ribs were fractured. As he fled the
bedroom, Carlos grabbed a paper grocery bag. Kelly caught hold of the bag.
It ripped, and Kelly’s credit cards, checkbook, and a television remote control
spilled out.
1 Undesignated statutory references are to the Penal Code. Our
citations to the Penal Code sections are to the versions of the statutes in
effect during the pendency of the prosecution below.
2
Carlos ran out of the house. Kelly followed him, yelling, “Call 911, I’m
being robbed.” As Carlos ran toward a truck parked nearby, Kelly’s
neighbors tackled him. Shortly thereafter, police officers arrived. They
detained Carlos and searched the truck, where they found numerous items
taken from different rooms in Kelly’s house, including a television, video
games, and a knife.
Carlos testified he used drugs with Kelly. He stored his drugs at her
house because he was on parole subject to a search condition. In July 2011,
Carlos drove a stolen truck to Kelly’s house to retrieve his drugs. He entered
the house through the kitchen window, put on a pair of gloves, and searched
everywhere for the drugs. Frustrated at his inability to find what he was
looking for, Carlos decided to take Kelly’s belongings, including her television
and video games. He took the items from the house and put them in his
truck. Then Carlos returned to the house. He was in Kelly’s bedroom when
she returned home. Carlos admitted entering Kelly’s house twice without
permission.
In 2018, the jury convicted Carlos of counts 2, 3, and 4. It found true
the enhancement allegations attached to count 2, as well as the prior
conviction allegations. The trial court found true the on-parole enhancement
allegation. At Carlos’s sentencing hearing in 2020, the trial court denied the
Romero motion but struck two prior serious felony convictions. Pursuant to
the Three Strikes law, the court sentenced Carlos to 25 years to life on count
2, plus a consecutive 13-year term (10 years for two serious felony
enhancements and 3 years for the great bodily injury enhancement). The
court imposed and stayed sentence on counts 3 and 4.
3
DISCUSSION
Carlos raises two claims on appeal. First, he argues count 3 must be
reversed because the evidence did not support convictions for “two distinct
burglaries.” Second, Carlos challenges the denial of his Romero motion.
Neither argument has merit.
Carlos’s first assertion — that he did not commit two “separate and
distinct” burglaries because his entries into Kelly’s home were pursuant to
a single course of conduct — is foreclosed by People v. Washington (1996)
50 Cal.App.4th 568 (Washington). There, a jury convicted the defendant of
two counts of burglary based on two separate entries into a single residence.
On appeal, the defendant argued the entries were part of a single intention
and plan to burglarize the residence and, as a result, he could be convicted of
only one burglary. (Id. at p. 574.) The Washington court disagreed. It
observed that the prohibition “against residential burglary is designed not so
much to deter trespass and the intended crime but to prevent risk of physical
harm to others that arises upon the unauthorized entry itself.” (Id. at
p. 577.) Washington continued: “Under section 459, burglary consists of an
unlawful entry with the intent to commit a felony. Thus, the crime is
complete, i.e., one may be prosecuted and held liable for burglary, upon entry
with the requisite intent. [Citation.] It follows, therefore, that every entry
with the requisite intent supports a separate conviction.” (Id. at pp. 578–
579.)
The same is true here. Viewed in the light most favorable to the
judgment, the evidence establishes Carlos entered Kelly’s house twice, both
times without authorization and with the intent to steal. (People v.
Covarrubias (2016) 1 Cal.5th 838, 890; In re Gary H. (2016) 244 Cal.App.4th
1463, 1478.) Each separate entry into Kelly’s home “created a separate and
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distinct risk of violent confrontation,” (People v. Kwok (1998) 63 Cal.App.4th
1236, 1256) a risk that materialized when Carlos tackled and injured Kelly
when she returned home and found him in her bedroom. (Washington,
supra, 50 Cal.App.4th at p. 577.) As in Washington, Carlos was properly
convicted of two counts of burglary. (Id. at p. 579; People v. Wilson (2015)
234 Cal.App.4th 193, 200 & fn. 5 [“[t]wo separate unauthorized entries into
a building for purposes of committing felonies may result in two burglary
convictions”].)
Our conclusion is not contrary to People v Garcia (2016) 62 Cal.4th
1116. There, our high court held that entries into interior rooms within
a single structure will not support multiple burglary convictions unless “the
interior rooms have characteristics that objectively demonstrate an
occupant’s distinct possessory or security interest, which an unauthorized
entry would invade.” (Id. at pp. 1119–1120, 1127.) Here, Carlos was not
convicted of multiple counts of burglary based on his movement within
Kelly’s house, but rather on his two distinct and separate unauthorized
entries into the residence itself. Nor are we persuaded by Carlos’s reliance on
People v. Haynes (1998) 61 Cal.App.4th 1282, which defines the scope of aider
and abettor liability for robbery when the direct perpetrator attacks the same
victim twice in close succession. (Id. at p. 1286.) Neither aiding and abetting
liability nor robbery are at issue here.
Applying our independent judgment, we conclude Carlos was properly
convicted of two burglaries. (Washington, supra, 50 Cal.App.4th at p. 578;
People v. Garcia, supra, 62 Cal.4th at p. 1122 [whether statute permits
multiple convictions is a legal question].) “The potential harshness of this
result—allowing multiple convictions in circumstances that might be viewed
as a single crime—is mitigated by the application of section 654, which ‘limits
5
the punishment for separate offenses committed during a single
transaction.’ ” (In re Arthur V. (2008) 166 Cal.App.4th 61, 67.) That is
what the trial court did in this case when it stayed count 3. (See People
v. Johnson (2007) 150 Cal.App.4th 1467, 1474.)
Next, Carlos challenges the denial of his Romero motion. To place the
issue in context, we briefly describe the statutory scheme. The Three Strikes
law is intended “to ensure longer prison sentences and greater punishment
for those who commit a felony and have been previously convicted of one or
more serious or violent felony offenses.” (§ 667, subd. (b).) The Three Strikes
law establishes a sentencing norm, “circumscribes the trial court’s power to
depart from this norm,” and requires the trial court to justify explicitly its
decision to do so, creating a “strong presumption that any sentence that
conforms to these sentencing norms is both rational and proper.” (People v.
Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
A trial court may dismiss prior felony conviction allegations in cases
prosecuted under the Three Strikes law when dismissal is “in furtherance of
justice.” (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529–530.) But
the standards for striking prior convictions under the Three Strikes law are
“stringent” and the circumstances must be “ ‘extraordinary’ ” for a career
criminal to fall outside the spirit of the Three Strikes law. (Carmony, supra,33 Cal.4th at pp. 377–378; People v. Vasquez (2021) 72 Cal.App.5th 374, 387.)
In deciding whether to dismiss a prior strike, the lower court considers
“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 spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or
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violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The court
must also consider the defendant’s constitutional rights, including
guarantees against “disproportionate punishment,” and society’s interest in
the “fair prosecution of properly charged crimes.” (Williams, at p. 160.)
We apply the deferential abuse of discretion standard when reviewing
the trial court’s refusal to dismiss a prior strike. (Carmony, supra, 33 Cal.4th
at p. 374.) “To show an abuse of discretion, the defendant must show that the
trial court’s decision was ‘so irrational or arbitrary that no reasonable person
could agree with it.’ [Citation.] Accordingly, ‘a trial court will only abuse its
discretion in failing to strike a prior felony conviction allegation in limited
circumstances. For example, an abuse of discretion occurs where the trial
court was not “aware of its discretion” to dismiss [citation], or where the court
considered impermissible factors in declining to dismiss.’ ” (People v.
Mendoza (2022) 74 Cal.App.5th 843, 856.)
With these principles in mind, we turn to Carlos’s Romero motion.
Carlos had seven prior strike convictions spanning from 1992 to 2004. In
1992, Carlos was convicted of first degree burglary; in 1994 he was convicted
of four counts of first degree burglary; and in 2004, he was convicted of first
degree burglary and receiving stolen property. Defense counsel moved to
strike all but one of the prior strike convictions pursuant to Romero, supra,
13 Cal.4th 497. According to the motion, Carlos had an unstable childhood.
He began using alcohol and marijuana as a child and sustained his “first
adult felony” conviction at age 19. At the time of sentencing, Carlos was 50
years old and had spent 14 of those years incarcerated. While in custody on
the current charges, Carlos participated in substance abuse programs and
engaged in other rehabilitative programming; a residential drug treatment
program agreed to accept Carlos upon release from custody.
7
The prosecution initially opposed the motion. Later, however, the
prosecution requested the trial court dismiss all but one prior strike
conviction. It noted the victim did not want Carlos to serve a long prison
sentence; the prosecution also argued a determinate 15-year sentence — with
execution of sentence suspended — was sufficient to punish Carlos and
protect public safety.
At the October 2020 sentencing hearing, Kelly characterized Carlos as
“a career criminal” who expertly burglarized her home, broke her ribs, and
caused her “undeserved stress.” Still, Kelly did not wish for Carlos to serve
a lengthy prison sentence — she believed a 15-year prison sentence, along
with drug treatment, would be appropriate. Two jurors shared their
sentiment that a sentence imposed under the Three Strikes law would be
unjust. One juror described her upbringing in San Francisco and expressed
concern that minority populations represent a substantially disproportionate
percentage of those incarcerated. The trial court thanked that juror for
relating her “background and . . . [her] experiences within the neighborhood.”
Carlos gave a statement accepting responsibility for his crimes, summarizing
his growth while incarcerated, and expressing a desire to attend a residential
drug treatment program.
The court then heard argument from counsel. Defense counsel asserted
a sentence under the Three Strikes law was unjust in light of the remoteness
of certain prior convictions, Carlos’s age, and his participation in
rehabilitative programs while incarcerated. Counsel also noted members of
the community — the victim and two jurors — disfavored imposing a lengthy
prison sentence. The prosecution offered a similar argument, highlighting its
opposition to “using strikes and [enhancement] allegations” to lengthen
prison sentences.
8
The trial court denied the Romero motion. In a comprehensive ruling,
the court listed the evidence it reviewed, recited the factors it considered, and
described legislation giving trial courts discretion to strike prior convictions
in the interests of justice. The court then detailed the reasons for its ruling,
among them that the current offenses were more serious and violent than
Carlos’s prior strike convictions, and that in the commission of the crimes,
Carlos injured the victim. Carlos’s 22-year criminal history, the court
explained, evinced a pattern of criminal conduct interrupted only when
Carlos was incarcerated; the court also noted Carlos committed the current
offenses just nine months after being released from prison and while he was
on parole. As to Carlos’s background, character, and prospects, the court
found Carlos had an extremely high likelihood of reoffending and poor
prospects for employment, and the court noted Carlos displayed “traits of
character that demonstrate . . . [a] lack of moral, ethical, and honest
qualities.”
The trial court acknowledged the circumstances in mitigation, found
that Carlos’s substance abuse played a role in his criminal conduct, and
observed that Carlos had, while incarcerated on the current offenses,
completed a substance abuse program and educational coursework. It
concluded: “having considered the record of the case, together with all the
relevant factors heretofore discussed and not singling out one over another
but taking all of them as a whole in its assessment, the Court finds that in
light of the nature and circumstances of the present crimes of which [Carlos]
now stands convicted, coupled with the consideration of his extensive 22-year
criminal history — which is almost exclusively comprised of . . . first degree
residential burglaries — together with the particulars of his background,
9
character, and prospects . . . the Court finds that the imposition of a sentence
under the [T]hree [S]trikes law would be just and warranted.”
On appeal, Carlos argues the trial court abused its discretion in ruling
on the Romero motion by failing to consider the “victim’s sentencing wishes”
and “community mores” toward sentencing.2 This contention is belied by the
record. The victim’s wishes and the prosecutor’s approach to sentencing were
brought to the court’s attention both in writing — via pleadings and
declarations — and orally — via testimony and argument at the sentencing
hearing.
Before issuing its ruling, the trial court considered the parties’ written
submissions and “listened attentively” to the evidence presented, and the
arguments of counsel, at the sentencing hearing. Indeed, the court thanked
one juror for relating her “background and . . . [her] experiences within the
neighborhood.” The court said it was “acutely aware of the seriousness,
significance, and implications” of its ruling and assured the parties it did not
consider the Romero motion “lightly nor as a matter of routine.” It also
expressly acknowledged the discretion conferred by recent sentencing
legislation. And in ruling on the motion, the court referred to Kelly’s victim
impact statement. On this record, we have no reason to believe the court
failed to consider the views of the victim, or those of the community, in ruling
2In support of this argument, Carlos requests judicial notice of recent
sentencing legislation and of the “About Us” page from the website for the
San Francisco County District Attorney’s Office. We deny the request as
these materials are unnecessary to our resolution of this appeal. We express
no opinion on whether the factors identified by Carlos, in and of themselves,
would be sufficient to deem a defendant outside the spirit of the Three
Strikes scheme. We reject Carlos’s suggestion that the visiting bench officer
who presided over trial and sentencing was not equipped to appropriately
exercise its broad discretion in ruling on the Romero motion.
10
on the Romero motion. (See People v. Brugman (2021) 62 Cal.App.5th 608,
638–639 [rejecting claim that trial court failed to evaluate relevant “factors
and evidence” in denying motion to strike].)
The trial court carefully considered Carlos’s current offenses, his
lengthy criminal record, and his background, character, and prospects. After
conducting this thorough review, the court determined “imposition of
a sentence under the [T]hree [S]trikes law would be just and warranted.”
Carlos’s disagreement with the weighing of the relevant factors does not
demonstrate an abuse of discretion. This is not an “extraordinary” case in
which no reasonable person could conclude the defendant falls within the
spirit of the Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 378; People
v. Vasquez, supra, 72 Cal.App.5th at p. 387 [finding “no extraordinary
circumstances in this record—none—that would mitigate against the
application of the Three Strikes law”].)
To the extent Carlos advances an argument regarding the alleged
unfairness of the Three Strikes law, such an argument is better directed to
the Legislature, not this court. The question before us is not whether we
would have granted Carlos’s motion, but whether the trial court reasonably
concluded Carlos did not fall outside the spirit of the Three Strikes law.
(Carmony, supra, 33 Cal.4th at p. 378.) The answer is yes. (See People v.
Mendoza, supra, 74 Cal.App.5th at p. 857 [no abuse of discretion in denying
Romero motion]; People v. Braden (2021) 63 Cal.App.5th 330, 342, review
granted July 14, 2021, S268925 [same]; People v. Brugman, supra,
62 Cal.App.5th at pp. 638–639 [same].)
11
DISPOSITION
The judgment of conviction is affirmed. The abstract of judgment must
be modified to align with the trial court’s oral pronouncement of judgment.
The trial court is ordered to prepare an amended abstract of judgment
indicating that the court: (1) imposed two five-year enhancements (§ 667,
subd. (a)(1)) attached to count 2; (2) imposed and stayed two five-year
enhancements (§ 667, subd. (a)(1)) attached to count 3; and (3) imposed
a $200 restitution fine (§ 1202.4) and imposed and stayed a $200 parole
revocation fine (§1202.45). The court is directed to send a copy of the
amended abstract of judgment to the Department of Corrections and
Rehabilitation.
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A161689
13