P. v. Austin

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Filed 8/14/18 P. v. Austin CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE,
Plaintiff and Respondent,
v.
DENNIS EXZAVER AUSTIN,
Defendant and Appellant.
C084624
(Super. Ct. No. CR20139308)
In this appeal, defendant Dennis Exzaver Austin challenges the trial court’s denial
of his Romero1 motion to strike one or both of his prior strikes. We will affirm.
BACKGROUND
A jury found defendant guilty of two counts of first degree burglary (Pen. Code,
§ 459),2 and single counts of misdemeanor battery (§ 242), attempted destruction of
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

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evidence (§§ 664/135), misdemeanor vandalism (§ 594, subd. (a)), and attempted first
degree burglary (§§ 664/459). The trial court also found numerous enhancements true
based on prior prison terms and convictions — including two prior strikes for a 2010 first
degree burglary conviction and a 2008 criminal threats conviction.
At sentencing, defendant moved to strike his prior strikes. In support, defendant
testified that he suffered from a drug addiction most of his life. Further, he had testified
in a case involving the homicide of a child — and did so “without any deal with the
prosecution for consideration or reduction of sentence and with the motivation to ‘do the
right thing.’ ” As a result of his testimony he had been labeled a snitch and threatened
with violence.
The trial court declined to strike either strike. It noted it had found nothing in the
probation report or other supporting documents to place defendant outside of the spirit of
the three strikes law. Defendant’s criminal history is lengthy. His prior offenses consist
of 14 felony convictions, 12 misdemeanors, and 5 violations of parole or probation
spanning from 2000 to 2013 — his current offenses occurred in 2013. As to defendant’s
history of drug addiction, the court noted defendant had previously been sentenced to a
treatment facility but had not shown up.
As to defendant’s testimony in the murder case, the court noted defendant had
done so with no promises made to him. But to now bring that testimony forward as a
reason to strike his prior strikes undercuts his assertion that he had testified purely for
altruistic reasons.
The trial court imposed an aggregate indeterminate term of 75 years to life along
with a 10-year determinate term.
2 Undesignated statutory references are to the Penal Code.

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DISCUSSION
On appeal, defendant challenges the denial of his Romero motion. He argues his
case falls outside the three strikes sentencing scheme, and thus the denial was an abuse of
discretion. He points to his drug addiction, noting his prior offenses fit a pattern of
addiction. He maintains his present offenses were less serious because he committed
daytime residential burglaries in order to avoid possible confrontation and violence. He
avers none of his past offenses were “violent felonies” as defined by section 667.5,
subdivision (c). He notes he would still face a substantial sentence absent one or both
strikes. And as he is 34 years old and suffers from renal failure, the denied Romero
motion represents a de facto life sentence. Finally, he maintains the most glaring aspect
of the denial was the refusal to recognize his voluntary cooperation with the prosecution
in a case involving the murder of an infant. We disagree.
The three strikes sentencing scheme applies where the defendant has at least one
qualifying strike, unless the trial court concludes an exception should be made. (People
v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) A trial court properly exercises its
discretion in striking a strike only if it finds “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 falls outside the
law’s spirit and should be treated as though he had not committed the prior strike.
(People v. Williams (1998) 17 Cal.4th 148, 161.)
When a trial court declines to strike a strike, we review that decision for abuse of
discretion. (Carmony, supra, 33 Cal.4th at pp. 374-375.) We will not reverse “unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at
p. 377.) Where the court, aware of its discretion, “ ‘balanced the relevant facts and
reached an impartial decision in conformity with the spirit of the law, we shall affirm the
. . . ruling, even if we might have ruled differently . . . .’ ” (Id. at p. 378.)

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Here, the trial court acted within its discretion in denying defendant’s motion to
strike his prior strikes. Defendant’s lengthy criminal record and his current offenses
place him squarely within the spirit of the three strikes law. As the trial court noted, any
mitigating effect of defendant’s drug addiction is undermined by his failure to take
advantage of a treatment opportunity. And though defendant emphasizes that none of his
offense were enumerated violent felonies, his two prior strikes undercut that argument.
Further, the fact that his current burglaries occurred in the daytime does little to render
them less serious: the time could have been chosen to avoid detection rather than to
minimize the risk to the victims.
Finally, the fact that defendant testified in a separate criminal matter does not
render the trial court’s ruling an abuse of discretion given defendant’s long criminal
history and numerous present offenses. As the trial court noted, the fact that defendant
offered testimony for purely altruistic reasons (though laudable) is brought into question
by his current expectation of concession for that testimony. Similarly, defendant’s
medical condition and the fact that he would still face a substantial sentence absent one or
both strikes, does not place him outside the spirit of the three strikes law.3
The trial court acted within its discretion in denying the motion.
DISPOSITION
The judgment is affirmed.
3 Defendant’s reliance on People v. Burgos (2004) 117 Cal.App.4th 1209, 1216 is
misplaced. There, the trial court found the failure to strike one of two prior strikes an
abuse of discretion and noted it is appropriate to consider the potential term a defendant
may receive in determining whether to strike a strike. Critically however — and unlike
here where the strikes were separated by at least a year — in Burgos the strikes arose
from the same act. (See id. at p. 1216 [“Here, appellant’s two prior convictions,
attempted carjacking and attempted robbery, were, in the language of [People v.] Benson
[(1998) 18 Cal.4th 24], ‘so closely connected,’ having arisen from the same single act,
that failure to strike one of them must be deemed an abuse of discretion.”].)

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/s/
Blease, Acting P. J.
We concur:
/s/
Hull, J.
/s/
Murray, J.

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