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Filed 10/7/13 P. v. Perkins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

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THE PEOPLE,

Plaintiff and Respondent,

v.

DANTE PERKINS,

Defendant and Appellant.

C072924

(Super. Ct. No. 12F01436)

A jury convicted defendant Dante Perkins of carjacking, second degree robbery 

and possession of a firearm by a felon. The trial court found true an allegation that 

defendant had a prior strike conviction, denied defendant‟s request to dismiss the prior 

strike (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497), 

and sentenced defendant to 35 years eight months in state prison. 
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Defendant now contends the trial court abused its discretion in denying his request 

to dismiss the prior strike. Concluding there was no abuse of discretion, we will affirm 

the judgment.

BACKGROUND

Parris Pruitt pulled his car into the parking lot of Greenhaven Liquor store. His 

girlfriend and their son remained in the car while Pruitt entered the store to buy 

cigarettes. Pruitt left the keys in the ignition. 

As Pruitt walked back to the car, defendant pointed a handgun at Pruitt‟s chest. 

Defendant said: “Don‟t get in the car. I‟ll gas you if you open the door.” Pruitt 

understood the word “gas” to mean “shoot.” Defendant took the cell phone from Pruitt‟s 

hand and got into the car. Pruitt ran back into the liquor store to call 9-1-1. Defendant 

pointed the gun at Pruitt‟s girlfriend and told her to get out of the car or he would shoot 

up the car. The girlfriend and child left. Defendant subsequently sold Pruitt‟s car. 

In denying defendant‟s request to dismiss the prior strike, the trial court 

considered, among other things, defendant‟s prior criminal history and noted that his 

prior strike conviction (a 2008 robbery) was a violent felony and was relatively recent. 

Defendant was born in 1991; he was 21 years old at the time of the instant 

offenses. His prior record included sustained juvenile delinquency petitions for a 

misdemeanor vehicle theft in 2006, two felony vehicle thefts in 2008, and the 2008 

robbery. He also had adult convictions for misdemeanor possession of methamphetamine 

in 2009, resisting arrest in 2010, and accessory to burglary in 2011. 

In the 2008 robbery, defendant and a cohort confronted a Round Table Pizza 

employee making a pizza delivery. The cohort pointed a gun at the victim and demanded 

money. When the victim resisted, defendant and his cohort punched and kicked the 

victim. The victim told the attackers they could find money in the victim‟s car; defendant 

and his cohort took $300 from the victim‟s car and fled in another vehicle. Defendant 

later admitted the crime and admitted membership in the Guttah Boyz gang. 
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DISCUSSION

Defendant contends the trial court abused its discretion in denying his request to 

dismiss the prior strike. 

We review a trial court decision declining to dismiss a prior strike for abuse of 

discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) In so doing, we are guided 

by two fundamental precepts. “First, „ “[t]he 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.” ‟ [Citations.] Second, 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.] Taken together, these precepts establish that a trial 

court does not abuse its discretion unless its decision is so irrational or arbitrary that no 

reasonable person could agree with it.” (Id. at pp. 376-377.)

Thus, the party challenging a ruling under Penal Code section 1385 has the burden 

to show the trial court ruled in an arbitrary, capricious, or patently absurd manner that 

resulted in a manifest miscarriage of justice. (People v. Romero (2002) 99 Cal.App.4th 

1418, 1433-1434.) Absent such a showing, we must presume the trial court acted to 

achieve legitimate sentencing objectives and may not set aside the trial court‟s 

discretionary determination to impose a particular sentence. (People v. Superior Court

(Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Defendant admits the instant offenses were very serious and that he has a lengthy 

criminal record. Nonetheless, he points out that he is young and that several of his prior 

convictions were misdemeanors. 

Regarding the prior strike conviction, defendant claims he and his cohort did not 

use a “real” firearm, they only used a BB gun, and thus defendant exercised caution to 
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avoid harm to persons. (Cal. Rules of Court, rule 4.423(a)(6).) Defendant further claims 

that because it was his practice to use a “fake” gun, and because the weapon used for the 

instant offenses was never found, there remains a significant doubt that a real gun was 

used for the instant offenses. He adds that even after dismissal of the prior strike, he 

would still be subject to a 25-year sentence. 

Defendant has not established that he falls outside the spirit of the three strikes 

law. By his own admission, he has a lengthy criminal history. Moreover, contrary to his 

assertion, he did not exercise caution to avoid harming his robbery victim; rather, he and 

his cohort punched and kicked the victim. Defendant‟s most recent offenses include 

three violent felonies and one serious felony. On this record, the trial court did not abuse 

its discretion in declining to dismiss the prior strike. 

DISPOSITION

The judgment is affirmed.

 MAURO , J.

We concur:

 BLEASE , Acting P. J.

 ROBIE , J.