Filed 12/31/19 P. v. Polin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ADAM PATRICK POLIN,

Defendant and Appellant.

F077088

(Super. Ct. No. BF170193A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Adam Polin stands convicted of possession of ammunition by a felon, in violation of Penal Code section 30305, subdivision (a)(1), obstructing a peace officer, and misdemeanor possession of drug paraphernalia. It also was found true that he had suffered a prior strike conviction and served two prior prison terms. The trial court denied his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the prior conviction allegation and his motion to reduce the section 30305 offense to a misdemeanor. Polin contends the trial court abused its discretion in denying his motions. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On October 30, 2017, Miguel Gutierrez was working as a security guard at an apartment complex in Bakersfield. He saw Polin in the parking lot, peering into a vehicle. As Gutierrez approached Polin, Polin walked away. A resident told Gutierrez that Polin had attempted to break into his vehicle, so Gutierrez went looking for Polin.

Gutierrez located Polin in another part of the complex. Polin had a backpack with him, and a bicycle with a rebar spike attached. Gutierrez told Polin to leave; instead, Polin took a fighting stance and reached for the rebar spike. Gutierrez detained Polin, placed him in handcuffs, and called 911. Polin told Gutierrez he was making a mistake. A man came out of one of the apartments. He also told Gutierrez he was making a mistake detaining Polin. When Gutierrez turned toward the man from the apartment, Polin ran away.

Officers who had been dispatched in response to the 911 call spotted Polin and ordered him to stop running and get down on the ground. Polin ignored their commands and continued to run. One of the officers tackled Polin and took him into custody. Three hypodermic syringes and two .22-caliber rounds of ammunition were found in Polin’s backpack.

An information was filed on November 17, 2017, charging Polin with unlawful possession of ammunition by a felon, obstructing a peace officer, and misdemeanor possession of drug paraphernalia. It also was alleged that Polin had suffered a prior conviction that constituted a strike and had served two prior prison terms.

A jury found Polin guilty of all three offenses. In a bifurcated proceeding, the trial court found the prior strike and prior prison term allegations true.

On February 23, 2018, Polin filed a motion to reduce the possession of ammunition offense to a misdemeanor and to strike the prior felony strike conviction.

The probation report filed on February 27, 2018, revealed that Polin had committed an offense as a juvenile and multiple offenses as an adult. He had been convicted of at least eight prior offenses as an adult, including battery of a spouse or cohabitant, burglary, forgery, and carjacking with the infliction of great bodily injury. There were multiple violations of probation identified in the report. At the time he committed the current offenses, Polin was on probation and an active bench warrant had been issued for him. He was only 33 years old at the time the probation report was prepared.

The probation report noted that there had been “no significant break” in criminal activity by Polin since 2001; he had been committing crimes or on parole or probation for most of the period commencing in 2001 to the date of his current offenses. A total term of eight years in prison was the recommended sentence.

At the February 27, 2018 sentencing hearing, the trial court stated it had read and considered the probation report; Polin’s statement in mitigation, including his request to reduce the possession of ammunition offense to a misdemeanor and to dismiss his prior strike conviction; and the People’s opposition to Polin’s motions and statement in mitigation.

The trial court noted that Polin had “a significant criminal history, starting out as a juvenile.” The trial court then reviewed on the record Polin’s history of criminal offenses and violations of probation. The trial court then went on to state, “The fact that he has a continuous history of criminal offenses subsequent to the commission of the strike offense, including another felony conviction within a few months after being released on parole, that certainly is significant to the Court.”

The trial court additionally stated that at 33 years of age, Polin was “certainly old enough to know and make better decisions.” The trial court noted that the possession of ammunition offense should be a misdemeanor for “someone else that doesn’t have this extensive of a criminal history and a strike prior, certainly someone with no record, it should be a misdemeanor offense.”

The trial court concluded with, “[a]s a result of his criminal history, I’m not inclined to reduce this to a misdemeanor at this particular time nor am I inclined to dismiss the prior strike offense.” Polin had only been out of prison about two years and “still has managed to pick up the misdemeanor in the interim period.” The trial court declined to dismiss the prior felony strike conviction and declined to reduce the current felony offense to a misdemeanor.

For the possession of ammunition felony offense, the trial court imposed a term of four years, and struck the punishment for the prior prison terms “in consideration of the sentence that I’m giving him.” The terms imposed for the two other offenses were to be served concurrently. Custody credits of 241 days were awarded.

Polin filed his notice of appeal on February 27, 2018. On August 27, 2019, Polin filed a request for judicial notice with this court. This court deferred ruling on the request pending a decision on the merits of this appeal. The People have filed an informal opposition to Polin’s request.

DISCUSSION

Polin contends the trial court abused its discretion by denying the motion to reduce the possession of ammunition offense to a misdemeanor. He also contends the trial court abused its discretion by denying his Romero motion.

I. Denial of Motion to Reduce Felony to Misdemeanor
II.
Polin filed a motion to reduce his conviction to a misdemeanor (the reduction motion) and to dismiss the prior felony strike conviction in the interest of justice pursuant to Romero (the Romero motion). Both motions were heard and denied during the sentencing hearing.

The trial court explained its reasons for denying the reduction motion, as Polin’s criminal history. The trial court noted that Polin had “a significant criminal history, starting out as a juvenile.” The trial court then reviewed on the record Polin’s history of criminal offenses and violations of probation. The trial court additionally stated that at 33 years of age, Polin was “certainly old enough to know and make better decisions.” The trial court noted that the possession of ammunition offense should be a misdemeanor for “someone else that doesn’t have this extensive of a criminal history and a strike prior, certainly someone with no record, it should be a misdemeanor offense.”

The trial court then went on to state, “The fact that he has a continuous history of criminal offenses subsequent to the commission of the strike offense, including another felony conviction within a few months after being released on parole, that certainly is significant to the Court.” The trial court concluded with, “[a]s a result of his criminal history, I’m not inclined to reduce this to a misdemeanor at this particular time nor am I inclined to dismiss the prior strike offense.” Polin had only been out of prison about two years and “still has managed to pick up the misdemeanor in the interim period.”

The trial court considered the section 17, subdivision (b) reduction motion and chose not to exercise its discretion to make this a misdemeanor.

The section 30305, subdivision (a)(1) offense may be punished either by incarceration in a county jail or prison for one year. Section 17, subdivision (b) grants trial courts discretion to treat a crime punishable either as a felony or a misdemeanor, also known as a wobbler, as a misdemeanor. Wobblers that are classified as misdemeanors at the time of sentencing do not trigger increased penalties under the “Three Strikes” law. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979 (Alvarez).) Proper exercise of discretion under section 17, subdivision (b) involves “an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration; and the record must so reflect.” (Alvarez, at pp. 981‒982.)

Relevant factors include the defendant’s criminal history, “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the

trial.’ ” (Alvarez, supra, 14 Cal.4th at p. 978.) On review, we apply “the extremely deferential and restrained” abuse of discretion standard. (Id. at p. 981.) “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

We discern no abuse of discretion. The trial court stated that it considered the contents of the probation report and Polin’s statement in mitigation. The probation report included Polin’s extensive criminal history, circumstances of the current offenses, and factors in mitigation and aggravation. The mitigation statement filed by Polin went into detail about the factors to be considered and why Polin believed the factors supported a reduction to a misdemeanor. Thus, the trial court made an individualized decision based on an assessment of the factors enumerated in Alvarez, supra, 14 Cal.4th at page 978.

We reject Polin’s assertion that the trial court’s remark that “someone with no record, it should be a misdemeanor offense” indicates the trial court failed to correctly assess the relevant factors or understand its discretion. This one phrase was part of the trial court’s lengthy discussion of Polin’s criminal history and comparison to others who have committed a similar offense. It does not in any way reflect the whole of the trial court’s analysis or factors that it considered.

Polin began his criminal career as a juvenile, continued to commit offenses as an adult, failed on multiple occasions to comply with the terms of probation, and rarely was not on parole or probation or incarcerated as an adult. His prior adult conviction that constituted a strike was a violent felony that involved the infliction of great bodily injury. He was on probation with an active bench warrant out for his arrest at the time he committed the current crimes. Denial of the reduction motion was fully supported by the record and we discern no error or abuse of discretion.

III. Romero Motion
IV.
Sentencing courts have discretion to dismiss a “strike” (see generally Romero, supra, 13 Cal.4th 497), but that discretion is of a “limited nature.” (People v. Bonnetta (2009) 46 Cal.4th 143, 153.) The 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 ….” (People v. Williams (1998) 17 Cal.4th 148, 161.) A sentencing court may not dismiss a strike “ ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant ….’ ” (Romero, supra, 13 Cal.4th at p. 531.)

We review a sentencing court’s decision on a Romero motion for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 532.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)

Polin argues the trial court’s reliance on his criminal history, considered in light of the minor nature of the current offenses, does not support the ruling. We disagree. Polin was convicted of burglary, forgery, battery of a spouse or cohabitant, and carjacking with infliction of great bodily injury, among other offenses as an adult. Considering that Polin was only 33 years old and had served two terms in prison before committing the current offenses, this is a substantial criminal history and the trial court was entitled to rely upon it heavily.

In People v. Garcia (1999) 20 Cal.4th 490, the Supreme Court observed a sentencing court “might … be justified in striking prior conviction allegations with respect to a relatively minor current felony, while considering those prior convictions with respect to a serious or violent current felony.” (Id. at p. 499.) We agree. And if the sentencing court in this case had chosen to dismiss Polin’s strike because of the arguably “minor” nature of the present offense, we probably would have affirmed that decision as well. But we cannot say the decision the court made here was “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)

DISPOSITION

The request for judicial notice is denied. The judgment is affirmed.