People v. Roman CA2/6

Filed 8/16/22 P. v. Roman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B316547
(Super. Ct. No. 21F-02108)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JOHNNY JESSE ROMAN, JR.,
Defendant and Appellant.
Johnny Jesse Roman, Jr. appeals the judgment entered
after he pleaded no contest to first degree burglary (Pen. Code,1
§ 459), robbery (§ 211), and unlawfully driving or taking a vehicle
(Veh. Code, § 10851, subd. (a)), and admitted two prior strike and
serious felony convictions (§§ 667, subds. (a), (b), 1170.12, subd.
(b)). The trial court sentenced him to 25 years to life in state
prison. Appellant contends the court abused its discretion in
declining to dismiss one of his prior strikes in the interest of
Unless otherwise noted, all statutory references are to the
1
Penal Code.
justice pursuant to People v. Superior Court (Romero) (1996) 13
Cal.4th 497 (Romero). We affirm.
STATEMENT OF FACTS
Because appellant pleaded guilty prior to trial, the relevant
facts are derived from the preliminary hearing transcript. On
February 13, 2021, Fateme Javadi was living in a guest house
behind her daughter’s residence on 40 acres of remote property in
San Luis Obispo. That morning, Javadi heard a knock on the
door. When she opened the door she encountered appellant, who
pushed her and entered the guest house.
Appellant asked Javadi if she lived alone and she falsely
told him she lived with her grandson. Appellant also asked
Javadi where her bedroom was and she led him there. Appellant
forced Javadi onto the bed and demanded money. Javadi
directed appellant to her purse and he took $250 cash from it. He
then went into a second bedroom and took a purse containing
$4,500 in cash.
While Javadi was lying on the bed, appellant tied her
hands behind her back with an exercise band and tied her feet
together with an electrical cord from an iron. He then left the
guesthouse and drove away in Javadi’s grandson’s Chevy
Silverado truck, which was parked outside. Javadi, who was
unable to untie herself, was discovered approximately four hours
later by her son-in-law.
Later that day, appellant was seen on surveillance video at
a gas station in San Jose where Javadi’s grandson’s truck had
been abandoned with Javadi’s purse inside it. A receipt found in
the truck led detectives to obtain video footage of appellant
purchasing $500 worth of merchandise from a Target store in
Gilroy earlier that same day. Appellant’s fingerprints were also
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found on an iPad in Javadi’s residence. Appellant subsequently
admitted taking the money and truck from Javadi’s residence
while he was under the influence of methamphetamine.
DISCUSSION
Appellant contends the trial court abused its discretion in
denying his motion to dismiss one of his prior strikes (a 2004 first
degree burglary conviction and a 2006 robbery conviction) in the
interest of justice pursuant to Romero. We conclude otherwise.
In deciding whether to grant a Romero motion, the trial
court 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 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 violent felonies.’ [Citation.]” (People v.
Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
We review rulings on a Romero motion for abuse of
discretion. (Carmony, supra, 33 Cal.4th at p. 376.) “In reviewing
for abuse of discretion, we are guided by two fundamental
precepts. First, ‘“[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.”’ [Citations.] Second, a ‘“decision will not be
reversed merely because reasonable people might disagree . . . .”’
[Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
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irrational or arbitrary that no reasonable person could agree with
it.” (Id. at pp. 376-377.)
In support of his Romero motion, appellant offered among
other things that his parents were both chronic drug users and
that his early childhood was “marked by extreme chaos” in which
he witnessed domestic violence. He eventually became addicted
to methamphetamine, committed his strike offenses, and served a
prison sentence. During the five years following his release on
parole, he experienced intermittent periods of sobriety, stable
housing and employment. Appellant also offered that he was
under the age of 25 when he committed his strike offenses, that
“the average male brain does not fully develop until [the] age [of]
25,” and that at his then-current age of 38 it was “reasonable to
conclude that he now has the proper neurological connections to
maintain impulse control, be empathic, and appropriately solve
his life’s problems.” He further noted that he had been employed
as a supervisor at Home Depot until he “relapsed into drug use”
prior to the instant offenses.
Appellant also attached a letter from his former girlfriend
Chanda M. Although appellant offered the letter as evidence of
“his general character,” the letter did not support his request for
Romero relief. Among other things, Chanda stated that appellant
had physically, emotionally, and verbally abused her, gave her a
sexually transmitted disease, posted nude photographs of her on
the internet, and continually contacted her from the county jail
despite her requests that he not do so. Chanda further stated
that she thought appellant was highly manipulative and that she
was afraid of him.
In opposing the motion the prosecution offered that
appellant’s current offenses were violent, that his crimes were of
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increasing severity, and that the mitigating factors identified by
appellant were not extraordinary. The prosecution also noted
that in committing his prior robbery strike appellant punched the
55-year-old victim several times in the face, and that appellant
offered no evidence of any ongoing effort to address his substance
abuse issues.
At the hearing on the motion, the prosecutor stated that
“[appellant] still has yet to identify extraordinary circumstances
that would support relief under [section] 1385. So at [a]
minimum, the Court should deny the motion without prejudice so
that probation can do a further workup on [appellant’s]
background and corroborate the circumstances [defense counsel]
cites.”
The court responded: “I will say I enjoyed having
[appellant] in the courtroom. I did sense he does want to be
accountable for this crime. He was certainly a gentleman while
he was here. And I’m not indifferent to the childhood that he’s
gone through. I have no doubt that plays a major role in the
criminality that we see here, but I simply agree with [the
prosecutor]. I don’t see [any] extraordinary circumstances that
would justify the Court striking [a] strike here. That being said,
that doesn’t mean I want to see [appellant] go away for 25-years-
to-life. This is a crime where his exposure is very high even
outside the 3-strikes law, and I would encourage the parties to
continue working [on a plea deal]. . . . And I would encourage the
defense to make a counter offer . . . that involves . . . a
determinate prison sentence. So I’m not inclined to grant the
Romero motion at this time.”
After appellant entered an open no-contest plea to all three
charged counts and admitted the prior conviction allegations, he
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filed another Romero motion. The second motion replaced the
letter from Chandra with a letter from appellant, but was
otherwise identical to the first motion. At appellant’s sentencing
hearing, defense counsel again urged the court to dismiss one of
appellant’s prior strikes and reiterated the points raised in the
written motion.
In denying appellant’s renewed motion, the court reasoned:
“I can’t say that this is a case that falls outside the 25-yers-to-life
Three Strikes sentencing scheme. The two prior strikes, while I
appreciate that they are older, and it appears to the Court that
[appellant] led a relatively law-abiding life for about 10 [to] 15
years, some of which was served, of course, in prison, but there
was a good period of time when he was out of custody, and I’m
only seeing misdemeanor conduct, and very little of it, on his
record. So what [defense counsel] has argued about, the ability of
[appellant] to lead a productive life, I think there’s a lot of truth
there. But here, you fell back into the use of drugs and
committed your second burglary, second robbery, and so I think
the 25-year-to-life sentence is appropriate and the Three-Strikes
scheme is appropriate here.” The court exercised its discretion,
however, to strike the two five-year prior serious felony
conviction enhancements because the convictions were “older”
and appellant “did have a period [of time] that was relatively
crime free during that period.”
Appellant fails to meet his burden of showing that the
court’s denial of his Romero motion was an abuse of discretion.
The record reflects that the court fully considered all relevant
factors in finding that appellant fell outside the spirit of the three
strikes law. Moreover, there is nothing to indicate that the court
misunderstood the scope of its discretion or considered
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impermissible factors in deciding whether to strike one of
appellant’s prior strikes.
As the People note, the nature of appellant’s current
offenses—a violent burglary and robbery of an elderly and
defenseless victim—plainly support the court’s decision to deny
his Romero motion. (See People v. Mayfield (2020) 50
Cal.App.5th 1096, 1105-1107.) Appellant also has a lengthy
criminal history, repeated violations of probation and parole, and
had a pending battery charge when he committed the instant
offenses. As we have noted, his prior robbery strike also involved
violence. Although appellant referred to a difficult childhood and
ongoing substance abuse problems, neither of those
circumstances compelled the court to grant Romero relief.
(Carmony, supra, 33 Cal.4th at pp. 377-378; People v. Leavel
(2012) 203 Cal.App.4th 823, 837.) Moreover, the court considered
those circumstances in striking the two prior serious felony
convictions in the interest of justice.
Accordingly, this case does not present the “‘limited
circumstances’” in which the denial of a Romero motion amounts
to an abuse of discretion. (People v. Leavel, supra, 203
Cal.App.4th at p. 837.) In arguing otherwise, appellant
essentially asks us to reweigh the relevant factors and reach a
different conclusion than the one reached by the trial court.
Based on the record before us, appellant has not shown that the
trial court’s denial of his Romero motion as to the assault charge
was “so irrational or arbitrary that no reasonable person could
agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) His claim
that the court erred in denying the motion thus fails.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.*
We concur:
GILBERT, P. J.
YEGAN, J.
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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Jesse J. Marino, Judge
Superior Court County of San Luis Obispo
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Steven E. Mercer, Deputy Attorney General,
for Plaintiff and Respondent.