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Filed 7/27/15 P. v. Floyd 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES EDWARD FLOYD,

Defendant and Appellant.

C076236

(Super. Ct. No. 13F07539)

A jury convicted defendant James Floyd of one count of first degree residential 

burglary and one count of contempt of court for violation of a protective order, a 

misdemeanor. The court found true an allegation that defendant had suffered a prior 

conviction for first degree burglary. The trial court denied defendant’s Romero1 motion 

to strike his prior felony conviction, and sentenced defendant to a total of 13 years in 

prison. The court doubled the midterm for burglary pursuant to Penal Code section 667, 

 

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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subdivision (e)(1), sentencing defendant to eight years in prison.2 The trial court also 

imposed a five-year enhancement pursuant to section 667, subdivision (a)(1) for the prior 

conviction for a serious felony.

Defendant argues the trial court abused its discretion in denying his Romero

motion. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The present burglary conviction arose out of an incident on October 20, 2013, at 

the apartment of Nabresha Gethers, defendant’s onetime girlfriend and mother of his 

child. They had known each other since 2009, and during their time together Gethers 

worked as a prostitute, giving all of her earnings to defendant.

Around August 2011, when they were living in Los Angeles, defendant and 

Gethers had an argument and hit each other. The police were called, defendant was 

arrested, and the court issued a restraining order against him.

Their son was born in 2012. Gethers’s relationship with defendant was on-and-off 

during that time. After the baby was born, Gethers did not want to be with defendant, 

and stopped working as a prostitute because she wanted a better life for her son. 

However, defendant kept calling Gethers because he wanted to be with her and with his 

son. He would go to Gethers’s parents’ house and honk his horn in the middle of the 

night, or break Gethers’s windshield out if she did not let him see his son.

Gethers did not call the authorities every time defendant showed up at her 

apartment because she was afraid of being evicted. But she called the sheriff on October 

 

2 Further statutory references to sections of an undesignated code are to the Penal Code.

 Section 667, subdivision (e)(1) provides: “If a defendant has one prior serious and/or 

violent felony conviction as defined in subdivision (d) that has been pled and proved, the 

determinate term or minimum term for an indeterminate term shall be twice the term 

otherwise provided as punishment for the current felony conviction.”
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18, 2013. She complained that defendant was knocking on her door and peeking in her 

windows. She told the officers that she had a restraining order against defendant. 

Defendant was not at the apartment when sheriff’s deputies arrived; however, they 

returned about 1:00 a.m., saw defendant standing in front of the apartment, and arrested 

him.

The next day, October 19, 2013, defendant sent a series of text messages around 

4:00 p.m. In order, they said: “Somebody left a bike in your house. You might get 

evicted today. All over. Told them to come down here. Let’s see who’s ready to die for 

you. Why are you crying? What’s wrong?” At some point, defendant also texted 

Gethers pictures of her personal property, including her watch, jeans, purse, Social 

Security card, and her son’s Social Security card.

When Gethers went to her apartment on October 20, 2013, she found the 

apartment had been flooded. The front windows were all open and the screens were off. 

Everything that had been in her closet was strewn around her living room. Her papers 

and mail were in her bathtub. Defendant’s prints were found on the exterior master 

bedroom window, the exterior kitchen window, and the exterior living room window.3

DISCUSSION

Defendant argues the trial court abused its discretion when it denied his motion to 

strike his prior strike pursuant to his Romero motion. He argues that imposition of the 

strike enhancement was “overkill.”

Defendant’s prior strike was a first degree burglary conviction from San Francisco 

County. The San Francisco Superior Court indicated the original docket could not be 

located, so little is known of the underlying facts. Defendant received probation for the 

 

3 The jury found defendant not guilty of a second count of first degree residential 

burglary and one count of harassment. The factual background does not focus on these 

allegations.
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burglary. Defendant’s California Law Enforcement Telecommunications System 

(CLETS) printout, or certified rap sheet, showed arrests and detentions beginning in 

1996, when defendant was a juvenile. Over 60 incidents were listed.

Failure to strike a prior conviction allegation is subject to review under the 

deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 

374.) “‘The burden is on the party attacking the sentence to clearly show that the 

sentencing decision was irrational or arbitrary. [Citation.] 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.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed 

merely because reasonable people might disagree. “An appellate tribunal is neither 

authorized nor warranted in substituting its judgment for the judgment of the trial judge.”

[Citations.]’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 

977-978.) We will not conclude that the trial court abused its discretion unless its 

decision was “so irrational or arbitrary that no reasonable person could agree with it.” 

(People v. Carmony, supra, at pp. 376-377.) 

A claim that the trial court abused its discretion in failing to strike a prior felony 

conviction will succeed only in limited circumstances. (People v. Carmony, supra, 33 

Cal.4th at p. 378.) Such circumstances include situations where the trial court is not 

aware of its discretion to dismiss, or where it considered impermissible factors in refusing 

to dismiss. (Ibid.) “Where 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. Myers (1999) 69 Cal.App.4th 305, 310.)

The factors to be considered by the trial court 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 
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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 (1998) 17 Cal.4th 148, 161.) Only if these 

factors “manifestly support the striking of a prior conviction and no reasonable minds 

could differ” does the failure to strike constitute an abuse of discretion.” (People v. 

Carmony, supra, 33 Cal.4th at p. 378.) 

The trial court considered the nature and circumstances of defendant’s present 

felony when it stated: “The specifics of the crimes themselves, they are quite serious, I 

get the point. But there are first-degree burg[larie]s and there are first-degree 

burg[larie]s. And this is not one of the -- there are a lot of peculiar aspects to these, as I 

think you would agree. [¶] . . . [¶] . . . And they are not classic first-degree burg[larie]s.”

The trial court considered the prior serious felony when it stated: “I think it’s 

unfortunate that he didn’t get prison on the San Francisco burg[lary] because that might 

have gotten his attention in a way that obviously probation didn’t. And typically it’s an 

unusual case where we don’t impose prison for a first-degree burglary. That is the 

intended -- that is the presumptive sentence that the Legislature has declared.”

The trial court considered defendant’s background, character, and prospects when 

it stated: “. . . I very much have in mind the continuing offenses throughout his life, 

mostly relatively low-level felonies and a number of misdemeanors. . . . [¶] . . . [¶] The 

reason I’m not granting your Romero motion and striking the strike is because of Mr. 

Floyd’s continued intersection with the criminal justice system, one felony or 

misdemeanor after another, and as I just said, a lot of them weren’t all that serious 

compared to what we often see, but they were getting increasingly serious, and that is one 

of the issues. And they are kind of unremitting; they just keep happening. [¶] Mr. Floyd 

has established a history in the criminal justice system that is exactly within the ambit of 

what the [L]egislature and the People intended when Three Strikes was passed. . . . I 

sometimes strike strikes, Mr. Floyd, but in this case, you are just not a good candidate for 
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that. You are what the [L]egislature and the People of the State of California intended to 

benefit from the Three Strikes Law.”

We cannot say that these factors manifestly support the striking of the prior 

convictions, and that reasonable minds could not differ on the question. Therefore, there 

was no abuse of discretion.

DISPOSITION

The judgment is affirmed. 

 BLEASE , Acting P. J.

We concur:

 NICHOLSON , J.

 MURRAY , J.