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People v. Licea5/30/2002
13 Cal.4th at p. 531.) " reponderant weight must be accorded to factors intrinsic to the [three strikes] scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (People v. Williams (1998) 17 Cal.4th 148, 161.) In deciding whether to strike a prior conviction, and in reviewing a trial court's ruling, "the court in question 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." (Ibid.) The defendant's criminal history is among the relevant factors to be considered. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979.)
"`The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . 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.'" (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.)
As appellant recognizes, the claim that a prior conviction was "remote" lacks credence when the defendant has not led a legally blameless life since that prior. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Here, shortly after his release on parole following service of his term for the robbery conviction, appellant was arrested for grand theft person, and following his conviction of grand theft he was sentenced to three years eight months in prison. Upon his release from prison for that term, he sustained additional convictions of driving under the influence and driving without a license. He has demonstrated a refusal to be rehabilitated which does not reflect well upon his character or prospects. Regardless of the monetary value of the property stolen in this offense, the trial court's determination that appellant was not outside the spirit of the three strikes law and should be sentenced to six years in prison was within the sound exercise of its discretion.
VI. The trial court did not abuse its discretion in selecting the upper term.
As indicated, in selecting the upper term of three years, the trial court cited the aggravating circumstances that appellant's prior convictions were numerous and of increasing seriousness, he had served prior prison terms, he was on parole at the time of the current offense, and his prior performance on probation and parole was unsatisfactory, observing that appellant had never reported for parole in the most recent case. The trial court found that the circumstances in aggravation outweighed the circumstances in mitigation. Appellant contends that the trial court abused its discretion in selecting the upper term. He argues that the trial court did not properly qualitatively balance the aggravating and mitigating factors because it failed to recognize that the nature of his shoplifting offense, where he took four jars of coffee worth less than $16, qualitatively outweighed the aggravating factors relating to his criminal history.
Appellant has waived this contention by failing to object to the trial court's statement of reasons for selecting the upper term. (People v. Scott, supra, 9 Cal.4th at p. 353.) In any event, the claim is without merit. The trial court considered the nature of ap
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