Filed 1/27/20 P. v. Blaxton CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

STEPHEN BLAXTON,

Defendant and Appellant.

B293407

(Los Angeles County

Super. Ct. No. BA449619)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard S. Kemalyan, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General and Nathan Guttman, Deputy Attorney General for Plaintiff and Respondent.

_____________________________

INTRODUCTION

Stephen Blaxton appeals from the judgment after a jury convicted him of voluntary manslaughter and found true the allegation he personally used a firearm in the commission of the crime. He argues the trial court abused its discretion in denying his motion under People v. Superior Court (Romero) 13 Cal.4th 497 (Romero) to strike his prior serious or violent felony conviction for purposes of the three strikes law. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Garrett Peterson Harasses Blaxton on Skid Row
B.
Blaxton lived in a tent on Skid Row in Los Angeles. Next to his tent he had a store where he sold clothing, shoes, food, and drinks “to make some money to survive.” On a good night he could make between $150 and $400.

Garrett Peterson and “his boys” harassed Blaxton at his tent. On one occasion, Peterson came up to Blaxton and told him to leave, close his store, and stop coming to the area. They acted belligerently toward Blaxton and made fun of him because he was homeless. On another occasion, Peterson and his companions approached Blaxton and said, “Oh, your bitch ass is still here.” They robbed Blaxton and hit him in the face or jaw with the bottom of a handgun. Peterson said, “You still here, you think we playing with you? I should kill you right now.” Peterson also tried to put his lit cigarette in Blaxton’s eye. On still another occasion, after Peterson and his comrades attacked a pregnant woman near Blaxton’s tent, Peterson and the other men accused Blaxton of speaking to the police and threatened to harm him and burn his tent. Blaxton was scared and feared for his life.

B. Blaxton Kills Peterson

On the day of the shooting, Peterson was walking in the area of Blaxton’s tent and harassing people on the street. Peterson walked by Blaxton’s tent and accused Blaxton of calling the police. Peterson was “wasted” and “belligerent” and told Blaxton he had to get his “bitch ass up out of there.” Peterson said that, if Blaxton “didn’t get off that corner,” Peterson “was going to do something” to him. Peterson said, “Man, I’m going to kill your bitch ass tonight. You think this is a game.”

Blaxton thought he was going to die. He went to get a handgun he kept inside a purse. As recorded by a nearby security camera, Blaxton shot Peterson in the back after he turned and walked away. Blaxton felt he had to shoot Peterson or he was going to die, “like it was my life or his life.” Blaxton testified: “I was scared. I was really scared. I did not mean to do any harm to Mr. Peterson to a point where I thought he was going to actually die. Honestly, I thought he may have had some kind of weapon as he was walking away and he would turn around [and] try to shoot me before he got to the corner.” Blaxton stated that, although he did not see Peterson with a weapon that night, “he had one before.” Blaxton said, “I panicked so much that I shot.”

Police officers responding to the scene found Peterson on the ground. The officers and several detectives asked individuals in the area if they had seen anything, but no one provided any information about Peterson or the shooting. The detectives eventually spoke with Blaxton near his tent and asked him if he had heard any gunshots. Blaxton said he had not. Blaxton learned from the detectives that Peterson had died.

The detectives subsequently obtained and viewed the surveillance recording showing Blaxton shooting Peterson. They arrested Blaxton and searched his tent. The police did not find a gun or any other weapons.

C. Blaxton Lies to the Police

After the police arrested Blaxton, detectives questioned him about the shooting. During the interview, which the detectives recorded and the prosecutor played for the jury, Blaxton said that, although he did not know what happened the night of the shooting, he heard someone had “probably died” and that there were “a lot of people . . . talking and buzzing about somebody got killed.” Blaxton told the police that he did not have a dispute or a problem with anyone at his store that evening and that he did not hear a gunshot. Blaxton stated: “I didn’t see nobody get shot. I didn’t hear no gunshots.” Blaxton did not say anything to the detectives about Peterson threatening, robbing, or assaulting him.

Blaxton, however, admitted he lied to the police about what happened. Blaxton said he lied “the whole time” and “about everything” because it was hard for him “to accept the fact that somebody died.” When the detectives told Blaxton there was surveillance video that refuted Blaxton’s story and showed Blaxton shooting Peterson, Blaxton stated, “Video of what? Me going—I’m not involved in nothing. I didn’t do anything. If anything, I’m on video running my store. That’s it. That’s it.” Blaxton said, “I ain’t never killed nobody or hurt nobody like that a day in my life.” When the detectives showed Blaxton the video, Blaxton again denied that he shot Peterson and that he had a gun.

D. A Psychologist Gives Blaxton a Diagnosis

Blaxton presented the testimony of Dr. Kevin Booker, a psychologist who specialized in trauma. Dr. Booker testified Blaxton grew up “in an environment where he was subjected to significant community violence and . . . some family violence,” witnessed the murder of a close friend, and was shot in his head in 2011. Dr. Booker concluded Blaxton “suffered from a post-traumatic stress disorder that was chronic.” Dr. Booker found that Blaxton’s symptoms included intrusive thoughts, disturbing recollections, negative emotions, and hypervigilance. Dr. Booker opined that individuals with Blaxton’s history, “if they perceived subjectively that they potentially could be injured and/or killed, that they would have a significant hypervigilant response which could include almost an overreaction to their subjective perception.”

E. The Jury Convicts Blaxton of Voluntary Manslaughter

The jury found Blaxton not guilty of first degree and second degree murder but guilty of voluntary manslaughter. The jury also found true the allegation Blaxton personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). In a bifurcated proceeding, the trial court found true the prior conviction allegations, including a juvenile adjudication for committing armed robbery when Blaxton was 16 years old.

F. Trial Court Sentences Blaxton as a Second Strike Offender

Blaxton filed a motion under Romero to strike the sustained juvenile adjudication for robbery with the use of a firearm, a serious and violent felony within the meaning of the three strikes law. Blaxton, who was 39 years old at sentencing, suffered the juvenile adjudication for armed robbery in 1994, when he was 16 years old. Blaxton argued that, since that adjudication, he “received only non-violent and non-serious convictions,” including convictions in 2003 for unlawfully driving or taking a vehicle and attempting to elude a peace officer by driving with willful disregard for the safety of persons or property, and five convictions between 2006 and 2012 for possession and transportation of marijuana for sale. Blaxton asked the court to consider that his juvenile adjudication for armed robbery was 24 years old, that he committed the crime at the direction of two adult males, that marijuana was now legal in California, and that he had “a very difficult upbringing” that included abuse, mental illness, and drug addiction. Blaxton also argued that Peterson repeatedly abused Blaxton on Skid Row and that Blaxton felt “tremendous remorse for his conduct.”

In opposition to the motion, the People pointed out Blaxton had “spent almost his entire adult life in custody.” In particular, the available records showed that in 2003 Blaxton was sentenced to 32 months in prison; from December 2004 to May 2006 he was often on and frequently violating probation; in February 2007 he was sentenced to four years in prison; in 2009 he was sentenced to two years in state prison; and in 2012, after additional arrests and probation violations, he was sentenced to seven years in prison. The records indicated Blaxton was released on post-release community supervision in December 2015, and killed Peterson eight months later in August 2016. The People argued Blaxton was a “career criminal,” a “demonstrated recidivist,” and fell “clearly within the scope and spirit of the ‘Three Strikes’ law . . . .” The People also emphasized Blaxton shot Peterson in the back as Peterson was walking away.

The trial court denied Blaxton’s motion to strike the adjudication. The court stated: “There is no question, I think to all of us, and the People would agree, it is remote in time, being some 23 years ago. But it did involve, at least from a review of the charges without the benefit of police reports or the involvement of anyone, use of a firearm, use of a weapon, and it is a violent felony. The present offense involves the use of a firearm with violence. As much as we might wish or someone might wish to cast aspersions on the victim in our case, at the time he was shot, he was vulnerable. His back was to the defendant. And subsequently we learned of his intoxication—the court did. And there is no question that in the intervening 23 years, Mr. Blaxton has not been a stranger to the criminal justice system. Although the offenses have not been serious or violent, they have left him in a criminal justice system for a substantial period of time, which the court does weigh in determining that the defendant has been ‘crime free’ as a factor that might work to his benefit in terms of the court striking the juvenile offense—strike, I should say.” The court also stated that, in terms of remorse, while the court “underst[ood] and . . . accept[ed] at this time that Mr. Blaxton is remorseful for his conduct,” he was not remorseful at first when he lied to the police and denied any involvement in the crime, even when shown a videotape of the shooting. The court also mentioned the weapon Blaxton used to shoot Peterson was never located or returned to Blaxton’s tent, which suggested Blaxton “intentionally disposed of the weapon in some manner or otherwise made it unavailable.”

The court acknowledged Blaxton “does raise issues in the moving papers . . . although they might be focused more on the sentencing aspect, but they are issues for the court to consider with regard to Dr. Booker’s report. . . . [Dr. Booker] opined in his report and testimony that Mr. Blaxton suffers from posttraumatic stress disorder with features of hypervigilance. The jury in this matter, the court believes, accepted much of what Dr. Booker stated at trial and decided the defendant committed the lesser included offense of [voluntary] manslaughter.” The court also stated it has “struggled with” the issue whether, if the court assumed the jury gave Blaxton “the benefit of voluntary manslaughter based upon mental health issues, should [he] be entitled to now utilize those same arguments for the benefit of striking the strike as well as sentencing.” The court stated it had considered that issue because “the commission of the offense does impact the striking of the strike as well as the sentencing.”

The trial court sentenced Blaxton to the middle term of six years, doubled under the three strikes law. The court also imposed the middle term of four years for the firearm enhancement under section 12022.5, subdivision (a), for a total prison term of 16 years.

DISCUSSION

A. Standard of Review

A trial court has discretion under section 1385, subdivision (a), to dismiss in furtherance of justice a serious or violent felony conviction for purposes of sentencing a defendant under the three strikes law. (People v. Clancey (2013) 56 Cal.4th 562, 582; Romero, supra, 13 Cal.4th at p. 530; People v. Centeno (2019) 38 Cal.App.5th 572, 576.) The sentence a trial court imposes under the three strikes law frequently depends on “the trial court’s exercise of discretion in determining whether, in furtherance of justice, to strike any of the serious or violent prior convictions that have been charged by the prosecutor and, if so, how many prior convictions to strike.” (In re Coley (2012) 55 Cal.4th 524, 559-560; see People v. Williams (1998) 17 Cal.4th 148, 158.)

“[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] . . . [¶] . . . ‘[I]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations . . . .” (People v. Carmony (2004) 33 Cal.4th 367, 378.) Because “‘the circumstances must be “extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack” [citation], 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.’” (People v. Vargas (2014) 59 Cal.4th 635, 641.)

In ruling on a motion to strike a serious or violent felony for purposes of the three strikes law, “the sentencing court must consider both the defendant’s constitutional rights and society’s interest in the prosecution of crimes. Therefore, a court may not dismiss a strike solely for judicial convenience, in exchange for a guilty plea, or based on antipathy to the Three Strikes law. Instead, in determining whether to strike a prior conviction, the trial court must look to ‘factors intrinsic to the [Three Strikes] scheme.’ [Citation.] It ‘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.’” (People v. Johnson (2015) 61 Cal.4th 674, 688-689; see People v. Carmony, supra, 33 Cal.4th at p. 377; People v. Williams, supra, 17 Cal.4th at p. 161.)

We review the trial court’s decision not to dismiss a prior strike allegation under section 1385 for abuse of discretion. (In re Coley, supra, 55 Cal.4th at p. 545; In re Large (2007) 41 Cal.4th 538, 550.) “‘“[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.”’” (People v. Carmony, supra, 33 Cal.4th at p. 376; see People v. Pearson (2019) 38 Cal.App.5th 112, 116.)

B. The Trial Court Did Not Abuse Its Discretion in Denying Blaxton’s Motion To Strike

The trial court did not abuse its discretion in denying Blaxton’s motion to strike based on the nature and circumstances of Blaxton’s present and past serious or violent felony convictions. In this case Blaxton shot a vulnerable and defenseless (albeit, according to Blaxton and one of his friends, threatening) victim in the back after he had turned to walk away. The surveillance video showed Blaxton retrieved his gun from his tent and waited until Peterson had turned his back on Blaxton before shooting Peterson. Blaxton’s robbery juvenile adjudication, though it was more than two decades old, also involved the use of a firearm. Thus, in the admittedly many intervening years between his strikes, Blaxton had not changed in one important respect: He still committed crimes with firearms. Indeed, Blaxton admitted that, as a felon, he was not even allowed to possess a firearm and that he was committing a felony by possessing one.

More important, the trial court properly observed that Blaxton hardly spent the years between his armed robbery adjudication and his voluntary manslaughter conviction (1994 to 2016) living a crime-free and upstanding life. (See People v. Williams, supra, 17 Cal.4th at p. 163 [defendant was not “outside the spirit of the Three Strikes law” where he “did not refrain from criminal activity during [the] span of time” between his “prior serious and/or violent felony convictions and his present felony”]; People v. Gaston (1999) 74 Cal.App.4th 310, 321 [defendant who committed his current crime while on parole and who had not “led a crime-free life during the period between” the prior and current convictions was not outside the spirit of the three strikes law].) As the trial court recognized, and Blaxton admitted, Blaxton spent most of his life on probation (which he frequently violated) and in prison, including for sentences in 2003 (32 months), 2007 (four years), 2009 (two years), and 2012 (seven years). Blaxton was released from prison on the last conviction in December 2015, and he killed Peterson less than a year later. Blaxton’s intervening felony convictions may have been, as Blaxton argues, non-violent, drug-related offenses, but he spent almost his entire adult life engaging in criminal activity and serving time in prison or on probation for his crimes. The trial court did not abuse its discretion in finding Blaxton’s “extensive criminal history place[d] him within the Three Strikes law’s spirit.” (People v. Anderson (2019) 42 Cal.App.5th 780, 786.)

The trial court acknowledged that Blaxton’s juvenile adjudication was remote and that Blaxton suffered from posttraumatic stress disorder. (See People v. Bishop (1997) 56 Cal.App.4th 1245, 1251 [remoteness of prior offense may “operate as mitigation” on a motion to strike under Romero].) The court also recognized that Blaxton felt remorse, although the court observed Blaxton’s feelings of remorse were of more recent vintage. But the trial court “weighed and considered” those factors along with other factors, as the law requires, and the court declined to exercise its discretion to strike Blaxton’s prior serious or violent adjudication for purposes of sentencing Blaxton under the three strikes law. The trial court did not abuse its discretion. (See People v. Carrasco (2008) 163 Cal.App.4th 978, 994 [trial court did not abuse its discretion in considering the defendant’s mental illness but not giving it “undue weight” in denying the defendant’s motion to strike his prior conviction]; People v. Philpot (2004) 122 Cal.App.4th 893, 906 [trial court did not abuse its discretion in denying the defendant’s motion to strike under Romero even though the prior serious or violent felony conviction was based on remote conduct].)

Blaxton argues that the trial court “failed to adequately consider the threats and actions perpetrated by Peterson which put [Blaxton] in a constant state of fear and anxiety” and that the court “considered the lesser included offense verdict to weigh against, rather than in favor of, dismissing the” prior strike. The record does not support Blaxton’s characterization of the trial court’s analysis. The trial court considered both Peterson’s conduct (commenting “as much as we might wish or someone might wish to cast aspersions on the victim”) and Blaxton’s fear and anxiety (recognizing there was “a whole layer of matters that you have to get through in this case beyond the facts, beyond the video, and into the mental health issues”). The court specifically referenced Dr. Booker’s opinion of Blaxton’s mental disorders. And the court never indicated the jury’s decision to convict Blaxton of voluntary manslaughter rather than murder weighed against striking the adjudication. The court stated it had weighed the jury’s verdict “in [its] mind a great deal because . . . the commission of the offense does impact the striking of the strike as well as the sentencing.” (See People v. Vargas, supra, 59 Cal.4th at p. 641 [the nature and circumstances of the defendant’s present felony are factors the court must consider in ruling on a motion to dismiss a prior serious or violent felony conviction under the three strikes law]; In re Coley, supra, 55 Cal.4th at p. 560 [“[a]mong the factors that a trial court may properly consider in determining whether to strike a prior conviction under the Three Strikes law are ‘the nature and circumstances of the defendant’s present felonies’”].) That Blaxton, or even we, would have given different weight to the significance of Peterson’s conduct or Blaxton’s mental health issues does not mean the trial court abused its discretion. (See People v. Carmony, supra, 33 Cal.4th at p. 378 [“‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’”]; People v. Philpot, supra, 122 Cal.App.4th at p. 905 [same].)

The trial court emphasized at the sentencing hearing it had considered and weighed all the relevant factors in ruling on Blaxton’s motion to strike. The trial court stated it had “spent a great deal of time considering the sentencing in this case,” including the “Romero motion.” The court stated that it had “spent quite a bit of time . . . just thinking about Mr. Blaxton and what happened” and that the court thought it was “an unusual case, to be honest . . . .” The court also stated it had “weighed and considered numerous factors in regard to the motion to strike the juvenile prior. Those factors [are] the present conviction, and the factors related specifically to Mr. Blaxton.” The trial court did not abuse its discretion.

DISPOSITION

The judgment is affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

ZELON, J.