P. v. Trejo

Filed 9/11/17 P. v. Trejo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MANUEL TREJO,
Defendant and Appellant.
B271528
(Los Angeles County
Super. Ct. No. BA420112)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Frederick N. Wapner, Judge. Affirmed.
Susan Morrow Maxwell, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Defendant and appellant Manuel Trejo pleaded guilty to,
among other things, second degree robbery. He was sentenced as
a second striker. On appeal, Trejo contends that the trial court
misunderstood the scope of its discretion when denying his
Romero1 motion. We disagree, and therefore we affirm the
judgment.
BACKGROUND2
Ana Cisneros worked at the Family Dollar Store. At
approximately 6:15 p.m. on December 15, 2013, Trejo, wearing a
scarf over his mouth and nose, was in the store. It being cold
outside, Cisneros initially thought nothing of Trejo’s attire. But,
as Cisneros walked toward the cash registers, Trejo told Cisneros
to “listen.” He showed Cisneros something wrapped in a black
stocking. Although Cisneros could see only a metal handle, it
appeared to be a gun. Another witness, however, saw Trejo lift
his shirt to reveal a gun. Trejo took $108 from a cash register.
When Cisneros told Trejo she could not open another cash
register without the code, he “backed away.” Trejo took a handful
of beef jerky before leaving.
Almost two hours later, Deputy Sheriff Eva Robles saw
Trejo driving a car that had been connected to a domestic
violence investigation. Robles activated her car’s lights and
sirens, but Trejo did not yield. Instead, Trejo’s car continued
through intersections and stop signs at approximately 40 miles
per hour. Trejo’s car crashed into a parked vehicle, but he
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).
2 The facts underlying Trejo’s crimes are from the
preliminary hearing.

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continued on, eventually stopping. Robles found Jack Link’s beef
sticks in Trejo’s car.
Based on these events, an information was filed alleging
that Trejo committed count 1, second degree robbery (Pen. Code,
§ 211)3 with a gun (§ 12022.53, subd. (b)), and count 2, evading an
officer, willful disregard (Veh. Code, § 2800.2, subd. (a)). The
information alleged that Trejo had two prior second degree
robbery convictions, the first from 1996 and the second from
2005, within the meaning of the “Three Strikes” law; three prior
prison terms (§ 667.5, subd. (b)); and two prior convictions of a
serious felony (§ 667, subd. (a)(1)). On May 19, 2015, defendant
pleaded guilty to the charges and admitted the allegations,
including that he was convicted of two prior strikes.
At the April 11, 2016 sentencing hearing, defense counsel
asked the trial court to strike one or both priors. Counsel argued
that Trejo had been doing “really swell on parole from January
through December” 2013, but Christmas was coming, “money was
short” and Trejo “fell back and hit the pipe and in one night blew
it.”4
The trial court noted that Trejo seemed like a “decent
enough guy” and had done exceptionally well on parole. The
court said it “would like to do something for him, but I have to
follow the law which says that I have to look at the nature and
circumstances of the present offense, the nature and
circumstances of the strikes, and his background, character, and
3 All further undesignated statutory references are to the
Penal Code.
4 When Trejo was arrested on these current charges, he had
a methamphetamine pipe.

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prospects and make a determination as to whether he falls
partially or wholly outside the scope of the Three-Strikes law. [¶]
And I don’t think he does.” The court noted that although the age
of the first strike (20 years) mitigated in favor of striking it, the
circumstances of it (a codefendant’s use of a gun, a shootout and a
wounded victim) mitigated against striking it. During the second
robbery, Trejo wore a mask and simulated using a gun, which
caused the victim to stab Trejo. The court observed that “these
are the kinds of things that happen when people walk around
with masks and simulating guns.” Trejo went to prison for that
robbery, and, within 10 and a half months of his release, he
committed the current crimes. The court acknowledged that
Trejo had a history of mental illness and although medication
controlled it, “no doubt, that was a contributing factor to when
things went south.” “The problem is that his M.O. for dealing
with things when things don’t work out is to get a mask and a
gun and people can get really, really hurt. [¶] And so I cannot,
with a straight face, say that he falls even partially outside the
scope of the Three-Strikes law.” The court said it could not take
its personal “view of what might be enough and substitute it for
my judgment about whether he falls” outside the scope of the
Three Strikes law.
The trial court therefore sentenced Trejo, on count 1, to 25
years to life plus 10 years for the gun enhancement (§ 12022.53,
subd. (b)) plus two 5-year terms (§ 667, subd. (a)(1)). On count 2,
the court sentenced Trejo to a consecutive term of eight months
doubled to 16 months. The court, however, struck a one-year

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prior and stayed two 1-year priors (§ 667.5, subd. (b)). Trejo’s
total sentence was 46 years four months.5
DISCUSSION
Trejo contends that the trial court erred in believing its
discretion was limited to factors in People v. Williams (1998)
17 Cal.4th 148 and “by not understanding” it could consider
Trejo’s “overall sentence” when ruling on the Romero motion. We
disagree that the court misunderstood the scope of its discretion.
In the furtherance of justice, a trial court may strike or
dismiss a prior conviction allegation. (§ 1385, subd. (a); Romero,
supra, 13 Cal.4th at p. 504.) We review a court’s ruling on a
Romero motion under the deferential abuse of discretion
standard; that is, the defendant must show that the sentencing
decision was irrational or arbitrary. (People v. Carmony (2004)
33 Cal.4th 367, 375, 378.) It is not enough to show that
reasonable people might disagree about whether to strike a prior
conviction. (Id. at p. 378.) 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
5 At the end of the sentencing hearing, defense counsel asked
for clarification of the sentence on count 2. The court clarified
that it was striking one of “the strikes as to count 2 only.” After
the hearing, the court issued an order nunc pro tunc “to reflect
that count 2 is not a serious or violent felony and therefore the
defendant cannot be sentenced to a third strike sentence as to
that count. Accordingly, the order striking the strike as to count
2 is vacated. Both parties have been reached and have agreed.”

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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.)
When considering whether to strike prior conviction
allegations, the factors a court considers are “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.” (People v.
Williams, supra, 17 Cal.4th at p. 161.) A court also has the
discretion to dismiss a prior conviction allegation with respect to
fewer than all counts. (People v. Johnson (2015) 61 Cal.4th 674,
689; People v. Garcia (1999) 20 Cal.4th 490.) Where the record
affirmatively discloses that the sentencing court misunderstood
the scope of its discretion, remand is required. (People v.
Fuhrman (1997) 16 Cal.4th 930, 944.)
No such misunderstanding affirmatively appears on this
record. Instead, in an attempt to show that the trial court did not
understand it could consider Trejo’s “overall sentence,” Trejo
isolates comments the court made. The court said, for example,
that it wanted “to do something” for Trejo and suggested that a
sentence of “32 years and four months at 85 percent” would be
“probably enough.” But when these comments are considered in
the context of the entire sentencing hearing, it is clear the court
properly understood the scope of its discretion. The court, for
example, also said that “my view of what might be enough” was
not a substitute for “my judgment about whether he falls” outside

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the Three Strikes law. (Italics added.) Thus, placing all
comments in context shows that the court was merely expressing
sympathy for Trejo. However, we decline to equate that
expression of sympathy with a misunderstanding of the scope of
the court’s discretion. To the contrary, the court’s recognition it
should not be guided by personal sentiment shows a perfect
understanding of the scope of its discretion. (See, e.g., Romero,
supra, 13 Cal.4th at p. 531 [court may not strike sentencing
allegation based solely on personal antipathy for effect the Three
Strikes law would have on a defendant while ignoring Williams
factors].)
The trial court showed that it understood the scope of its
discretion when it explained why it was finding Trejo outside the
scope of the Three Strikes law: Trejo’s first robbery involved the
use of a gun and injury to a victim, and he simulated the use of a
gun during his second robbery, which caused the victim to use a
knife to defend himself. Trejo committed the current offense
about 10 and a half months after release from prison on the
second strike. During the current robbery, Trejo used a gun.
Thus, Trejo’s modus operandi “for dealing with things when
things don’t work out is to get a mask and a gun,” which can lead
to people getting “really, really hurt.” Hence, the court found him
to be a career criminal within the scope of the Three Strikes law.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BACHNER, J.
We concur:
EDMON, P. J.
LAVIN, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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