1 Filed 2/28/13 P. v. Archuleta CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. RUBEN ARCHULETA, Defendant and Appellant. E054427 (Super.Ct.No . FWV1002489) OPINION

APPEAL from the Superior Court of Sa n Bernardino County. Michael A. Sachs, Judge. Affirmed. Jennifer L. Peabody, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.2 I
INTRODUCTION 1
Defendant Ruben Archul eta participated in selling he roin to two undercover police officers in September and October 2010. A jury convicted him of two counts of violating Health and Safety Code secti on 11352, subdivision (a). The trial court found true five prior strike allegations and th ree prior prison term allegations . (§§ 667, subds. (b)-(i); 667.5, subd. (b), and 11 70.12, subds. (a)-(d).) Pursuant to the Three Strikes law, the tr ial court sentenced defendant to 25 years to life on count 1. On the other count and allegations, the court sentenced defendant to consecutive terms totaling f our years four months. On appeal, defendant argues the trial cour t abused its discretion by not granting
defendant’s Romero 2 motion and by refusing to order di sclosure of juror information. Defendant concedes his argument about pr esentence custody credit was decided in People v. Brown (2012) 54 Cal.4th 314 and People v. Lara (2012) 54 Cal.4th 896 although he continues to rais e the issue to preserve it for federal review. We reject defendant’s other contentions and affirm the judgment.

1 All statutory references are to th e Penal Code unless stated otherwise.
2 People v. Superior Court (Romero) (1996) 13 Ca l.4th 497 ( Romero ).3 II STATEMENT OF FACTS On September 8, 2010, Ontario Police O fficers Maynor Arana and Jorge Galvez, working undercover, bought drugs from Alfred Mandujano who offered to sell them heroin and provided them with a telephone number. A. Count 1 On September 17, 2010, Aran a called Mandujano and said he wanted $20 worth of “negra,” slang for heroin. Mandujano said to meet him at 613 North Holmes in Ontario. Arana and Galvez dressed in plain clothes and drove an unmarked police car to the address Mandujano had given them. Mandujano was waiting outside when they arrived. Arana walked up to Mandujano and said he wa nted $20 worth of heroin. Mandujano said he did not have any heroin w ith him but he would call a fri end to deliver some to the house. Mandujano made a phone call and said his friend would be there shortly. Five to 10 minutes later, defendant arrived on a bicycle. Arana gave Mandujano $20, which he hand ed to defendant, who gave Mandujano two balloons and left on his bike. The offi cers took the balloons back to the police department. Lab analysis determined the su bstances recovered weighed 0.07 grams and 0.13 grams and contained heroin.4 B. Count 2 On October 8, 2010, Arana called Manduj ano again and asked for $80 worth of heroin. Mandujano told Arana to drive to his house and he would call a friend to have him deliver the drugs. Arana and Galvez drov e to the house and Galv ez got out of the car with Arana. Mandujano was standing in the side yard and Arana asked for $80 worth of heroin. Mandujano said he was going to ma ke a call and have his friend bring it to the house. Defendant arrived on a bicycle. Mandujano hand ed defendant the money and defendant put his hand in his mouth and spit ou t eight balloons, giving them to Arana. There were seven orange ballo ons and one red balloon. Ar ana gave Mandujano the red balloon at his request. Galvaz and Arana took seven balloons back to the police station. The brown substance inside two of the balloons weighe d 0.12 grams and 0.10 grams and contained heroin. Thirty to forty-five minutes after the tran saction, Officer Darryl Lauritzen arrested defendant about a half a mile from 613 North Holmes. Defendant had $80 in cash. The serial numbers on the money ma tched the $80 Arana used in the narcotics transaction. Lauritzen checked the box on the booking form indicating defendant appeared extremely intoxicated.
III ROMERO MOTION Defendant had five strike priors, four from a case in 1982 and a fifth from a 1990 case. In the current case, defendant was convicted of selling heroin worth $100 to5 undercover police officers, a nonviolent, non-se rious offense. After refusing to strike the prior convictions, the court sentenced defend ant to 25 years to lif e plus a consecutive term of four years four months. Defendant contends the tria l court abused its discreti on because defendant falls outside the spirit of the Three Strikes law an d the court should have stricken four of defendant’s strikes and sentenced him as a se cond strike offender. Defendant argues the current convictions were not serious or viol ent, were clearly a result of his lifetime addiction to drugs, and occurre d when defendant was no lo nger on parole. Defendant also asserts his sentence constitutes cr uel and unusual puni shment under the
circumstances of this case. 3 A. Standard of Review The Three Strikes law requires a court to “co nsider 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 b ackground, 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 convi cted of one or more serious and/or violent felonies.” ( People v. Williams (1998) 17 Cal.4th 148, 161.) In addition to the factors enumerated in Williams , discretion is limited by a re quirement that a dismissal be in the furtherance of justice. ( Romero, supra, 13 Cal.4th at p. 530.) The interests of

3 As discussed in the parties’ suppleme ntal briefing, defendant’s two convictions for attempted murder mean he may not be e ligible for resentenci ng under Proposition 36, or the Three Strikes Reform Ac t of 2012, section 1170.126.6 justice require consideration of the constitutio nal rights of the defendant and the interests of society. The reasons for a dismissal mu st be such as would motivate a reasonable judge. ( Romero, at pp. 530-531.) An appellate court reviews the trial court’s ruling on a Romero motion for an abuse of discretion. ( People v. Carmony (2004) 33 Cal.4th 367, 373.) The abuse of discretion standard is “deferential,” but “not empty.” ( Williams, supra, 17 Cal.4th at p. 162.) It asks whether the ruling in questi on “‘falls outside the bounds of reason’” under the applicable law and the relevant facts. ( Ibid .; People v. Garcia (1999) 20 Cal.4th 490, 503.) When the balance of the evidence favors the defendant, “‘a trial court not only may but should exercise the powers granted to him by the Legislature and gr ant a dismissal in the interests of justice.’” ( Carmony , at p. 375.) Only where the relevant factors manifestly support the striki ng of a prior conviction and no reasonable minds could differ does the failure to strike constitutes an abuse of discretion. ( Id. at p. 378.) B. Defendant’s History Defendant has rotated in a nd out of prison for 30 year s. In 1982, defendant pleaded guilty to two co unts of robbery and two counts of attempted murder for a total sentence of 10 years. Defenda nt was paroled in November 1988. Two years later, in October 1990, he plea ded guilty to assault with a dead ly weapon and admitted that he personally inflicted great bodily injury and wa s sent to prison for three years and paroled in June 1992. In March 1995, defendant’s parole was revo ked and he was returned to prison to finish his term until he was disc harged in November 1995. In May 1998, defendant pleaded guilty to se ction 273.5 and was sentenced to eight years in prison and7 paroled in May 2004. Defenda nt violated parole three ti mes but was discharged from parole in July 2009. He co mmitted the current offenses in September and October 2010. C. The Romero Motion Defense counsel moved to dismiss defendant ’s strike priors pursuant to section 1385 and Romero. Defense counsel argued that defe ndant fell outside the spirit of the Three Strikes law because of the minor nature of the current offenses ; the fact that the four 1982 convictions arose out of a single case when he was 19 or 20 years old; his relatively mature age of 47, making him less likely to return to violence; his lifetime struggle with drugs; and the alternative of a lengthy sentence whic h would also punish defendant for his prior offenses and his current offenses. Defendant was also a caretaker for his diabetic and disabled mother, gro cery shopping, paying bills, and obtaining her medication. Defendant had pl ayed baseball in his youth, attended community college, and worked at a trucking company. Defe ndant was enrolled in a substance abuse program from October 2009 thro ugh March 2010, shortly befo re the underlying crime. The prosecutor countered that defendant should be sentenced as a third strike offender because of his criminal history and recidivism. According to the prosecution, “[M]any of Defendant’s crimes are those of moral turpitude, he has shown a history of being a violent criminal who is a danger to societ y. This is precisely the type of recidivist criminal the Three-Strike laws is [ sic ] meant to punish.” The court noted defendant’s evidence indi cating that he had sought treatment for his drug abuse between October 2009 and Fe bruary 2010. The co urt also reviewed defendant’s prior convictions . In denying defendant’s Romero motion, the court8 observed that “in light of the nature and ci rcumstances of his present felony and prior felony convictions and the particulars of hi s background, character, and prospects, that the defendant may not be deemed outside the scheme or spirit, in whole or in part.” The court granted defendant’s request to strike de fendant’s priors as to count 2 only but did not strike any of the priors related to count 1. In its decision, the court noted that the underlying crime was not serious or violent. The court noted that the only victim of the case was the State of California. While recogni zing that defendant would not be eligible for parole until age 72, the court expressed concern that defendant had been imprisoned for 22 of the past 28 years. On count 1, the court sentenced defendant to 25 years to life. On count 2, defendant was sentenced to a cons ecutive term of four years four months for the three prison term priors found true. D. Analysis Defendant relies on several cases to argue th e trial court abused its discretion. In Williams, the California Supreme found an abuse of discretion in dismissing strike priors because the defendant’s current conviction was his fourth recent driving under the influence conviction and he had numerous pr ior convictions of crimes which involved actual violence. ( People v. Williams, supra, 13 Cal.4th at p. 164.)
In contrast to Williams , the California Supreme Court in Garcia , found the trial court properly exercised its discretion in v acating the defendant’s prior serious felony strikes in the interest of justice because th e defendant’s prior convictions all arose from a single period of aberrant behavior, he cooperat ed with police, his cr imes were related to drug addiction, and his criminal histor y did not include any actual violence.9 Cumulatively, these circumstances indicated the defendant could be deemed outside the spirit of the Three Strikes law, at least “in part.” ( People v. Garcia, supra , 20 Cal.4th at p. 503.)
In People v. Bishop (1997) 56 Cal.App.4th 1245, th e Court of Appeal found that when a present crime is minor and the past offe nses are remote “it presents the trial court with an opportun ity to evaluate factors su ch as how long the state maintains an interest in keeping the defendant as a public charge and after what period of incarceration he is no longer likely to offend again.” ( Id . at pp. 1250-1251.) Finally, in People v. Strong (2001) 87 Cal.App.4th 328, the trial court cited the defendant’s advanced age and the fact th at the violent felony conduct was out of character for the defendant as re asons for striking the strike. ( Id . at p. 334.) The Court of Appeal found that the trial court had abused its discretion for a defendant with a threeyear-old prior violent conviction and the de fendant appropriately came within the Three Strikes regime, causing his sentence to be doubled as a second strike. ( Id . at pp. 341, 343, 347.) In this case, we acknowledge that the sale of $100 worth of heroin to undercover officers is a nonviolent, non-serious, victimless crime and, with his current sentence of 29 years to life, defendant may be at least 70 years old before he is eligible for parole. Even if the trial court ha d granted defendant’s Romero motion and sentence d him as a second striker, he would still be facing a potential senten ce of more than 15 years. Additionally, the record shows a history of heroin addi ction and that defenda nt was likely selling heroin to support himself and his mother.10 Nevertheless we cannot conclude the releva nt factors manifestly support striking defendant’s strike priors and sentenci ng him as a second strike offender. ( People v. Carmony, supra , 33 Cal.4th at p. 378.) The remote ness of defendant’s 1982 offenses is offset by defendant leading a continuous life of crime for almost 30 years. ( People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Because defendant is a career criminal, his age should not constitute a mitig ating factor. Nor is defendant ’s sentence of 29 years to life a violation of the Eighth Amendment agai nst cruel and unusual punishment or the Fourteenth Amendment. ( Ewing v. California (2003) 538 U.S. 11; Lockyear v. Andrade (2003) 538 U.S. 63.) Based on defendant’s recidivism and likel y future conduct, the trial court did not abuse its discretion in denying defendant’s Romero motion as to count 1 The trial court’s decision was not so irrational or arbitrary that no reasonable judge could agree with it. ( Romero, supra, 13 Cal.4th at p. 530; People v. Carmony, supra, 33 Cal.4th at p. 377.)
IV DISCLOSURE OF JUROR INFORMATION Defendant contends that because poten tial juror misconduct or witness tampering occurred, additional investigati on was necessary and the trial court’s refusal to find that defendant established good cause for disclosure of juror info rmation violated his rights to a fair trial and impartial jury unde r the federal and state Constitutions. A. Relevant Background After the verdict, the jury foreperson rev ealed that, during the trial, she saw the investigating officer, Detective Jimenez, seated next to the prosecutor at counsel table,11 coaching the testifying witness, Corporal Arana by mouthing the word “no.” Defense counsel sought the foreperson’s information to get more details as to what the juror had observed. The court requested a transc ript of Arana’s testimony for review. The court reviewed the defense motion to unseal the information (Code Civ. Proc., § 237), the prosecution’s opposition, and the tr anscript of Arana’s testimony, highlighting each question to which Arana responded “no.” Defense counsel argued that, because the case against defendant was based on the credib ility of the various Ontario police officers involved in the controlled bu y, the veracity of the witne sses was the cornerstone of the case against defendant. Defense counsel ar gued further that juror misconduct had occurred when the foreperson failed to come forward to report the conduct between the police officers during Arana’s testimony. If th e foreperson had told the court about her observations, defense counsel could have ma de a motion for a mistrial and the issue could have been addressed when all the part ies were still availabl e. The prosecutor argued there was no juror misconduct as the foreperson was under no obligation to disclose what she had observed. The court commented that the jurors had be en instructed to interpret any behavior by a witness and factor it into their analys is of credibility. (CALCRIM Nos. 105 and 226.) The court asked whether it was accurate that the foreperson had indicated she saw the communication, considered it, and it di d not change her mind. The prosecutor confirmed that was her recollection of the ju ror’s statements and defense counsel could not remember. The court also observed that defense counsel had ar gued in closing that the testifying officers were not credible. Th us, in finding defendant guilty, the jury must12 have found the officers to be credible and the jury had been po lled without expressing any reservations. The court found that releas e of the juror information was not warranted and further inquiry amounted to a “fishing ex pedition” which did not outweigh the strong public interest in juror priv acy. The court reviewed the tr anscript of Arana’s testimony and determined that every time he answered “no” it was not to a question that would have had any significant effect on the outcome of th e case. The court also denied defendant’s subsequent motion for new trial. B. Application of Applicable Law To investigate the fairness and impartiality of a jury, after a verdict, disclosure of juror information is governed by sections 206 and 237 of the Code of Civil Procedure. Subdivision (g) of Code of Civil Procedur e section 206 permits a defendant or his attorney to petition the cour t for access to juror inform ation “for the purpose of developing a motion for new trial or any other lawful purpose.” ( People v. Granish (1996) 41 Cal.App.4th 1117, 1125.) Pursuant to Code of Civil Procedure sect ion 237, subdivision (a)(1), the names of jurors are to be made ava ilable to the public, unless th e court determines that a “compelling interest” requires the info rmation be kept confidential. ( People v Jefflo (1998) 63 Cal.App.4th 1314, 1320.) Pursuant to subdivision (b) of Code of Civil Procedure section 237, a heari ng on a request for juror inform ation, such as addresses and telephone numbers, shall be held pursuant to the procedures set forth in subdivisions (c) and (d) of section 237 if the requesting part y makes a prima facie showing of good cause for disclosure and the record does not estab lish a “compelling interest ” against disclosure.13 ( Jefflo, at p. 1320; People v. Granish, supra , 41 Cal.App.4th at p. 1125.) A defendant in a criminal case is entitled to jurors’ addresses and teleph one numbers “if the defendant sets forth a sufficient show ing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the jurors through other means, and that further investigation is necessary to pr ovide the court with ad equate information to rule on a motion for new trial.” ( People v. Rhodes (1989) 212 Cal.App. 3d 541, 551-552.) If the court does not order a hearing, the court is required to state, in a minute order, its reasons for not ordering a hearing a nd to make express findings either of the lack of a prima facie showin g of good cause or the existence of a compelling reason against disclosure. (Code Civ. Proc., § 23 7, subd. (b).) These statutory provisions require the court to balance th e jurors’ interest in privac y against the “‘strong public interest in the ascertainment of the truth in judicial proceedings.’” ( People v. Rhodes,

supra, 212 Cal.App.3d at p. 549; People v. Jefflo, supra , 63 Cal.App.4th at p. 1321, fn. 8; People v. Carrasco (2008) 163 Cal.Ap p.4th 978, 990; People v. Granish, supra , 41 Cal.App.4th at p. 1126, People v. Rhodes, supra, 212 Cal.App.3d at pp. 549-550.) Denial of a petition filed pursuant to Code of Civil Procedure section 237 is reviewed under the abuse of discretion standard. ( People v. Jones (1998) 17 Cal. 4th 279, 317.) Defendant contends he deserv ed to have a hearing to establish what exactly the foreperson saw and how she inco rporated her observations into the jury’s deliberations. In failing to find good cause and holding a hearing to investigate, thereby denying defendant’s request for the juror information on the prejudicial impact of a claim of juror misconduct that was not yet ripe, the court abused its discretion.14 Here, however, the trial court acted with in its discretion when it denied the defense motion to disclose the jurors’ information because the trial court made an express finding of the lack of a prima facie showing of good cause. The trial court determined that the foreman did not share her observatio ns with the other jurors and there was no indication whatsoever that it affected her deci sion or the verdict. Furthermore, additional investigation would ha ve constituted a “fishing exped ition” invading juror privacy. Under these circumstances, the trial court di d not abuse its discretion in denying the defense motion for disclosure.
V DISPOSITION The trial court did not abuse its disc retion in denying the defense motion for disclosure of juror information or in denying defendant’s Romero motion. We affirm the judgment. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:

HOLLENHORST Acting P. J.

McKINSTER J.