Filed 5/27/14 P.v. Lopez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

FRANK PEREZ LOPEZ,

Defendant and Appellant.

 H040081

 (Santa Clara County

 Super. Ct. No. C1225016)

Defendant Frank Perez Lopez entered a plea of no contest to four counts of second 

degree burglary (Pen. Code, §§ 459-460, subd. (b)),1and he admitted that he had suffered 

one prior serious or violent felony conviction, i.e., a strike (§§ 667, subd. (b), 1170.12, 

subd. (c)(1)). Defendant thereafter brought a motion requesting that the court exercise its 

discretion to dismiss the prior strike allegation in accordance with People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497 (Romero), which was opposed by the People. The 

court denied the Romero motion, and sentenced defendant to a prison term of six years, 

eight months. 

Defendant argues on appeal that the denial of his Romero motion constituted an 

abuse of discretion because the court failed to give adequate consideration to his

 

1

Further statutory references are to the Penal Code unless otherwise stated.
2

circumstances, including the remoteness of the strike offense, his long-standing issues 

with mental illness and drug abuse, and the fact that his more recent behavior has

indicated a decrease in the seriousness of his criminality. 

We conclude that the court did not abuse its discretion in denying the Romero 

motion. We will therefore affirm the judgment.

FACTS2

On January 29, 2012, San José Police officers were dispatched to Fry’s Electronics 

to investigate a reported theft. Store security had called the police, and when they

arrived, one security officer was following defendant. The police officers observed 

defendant walking, made contact with him, and took him into custody. While being 

handcuffed, defendant said spontaneously, “ ‘Yeah, these are from Fry’s’ and when asked 

if he had a weapon, he responded, ‘Yeah, I have a knife in my pocket and that’s what I 

used to cut open boxes.’ ” 

Store security officers positively identified defendant as having been involved in 

the store theft. They indicated that they had been on the lookout for defendant because 

he had committed three other thefts at Fry’s earlier that month on January 5, 11, and 14. 

THE PRIOR STRIKE3

Defendant was convicted previously of one violent or serious felony. On January 

31, 2006, defendant was convicted of arson involving an inhabited building (§ 451, subd. 

(b)), a violent or serious felony (strike) within the meaning of section 1170.12, 

subdivision (c)(1), and was sentenced to six years in prison for the offense.4 

 

2 Our summary of the facts is taken from the probation report. 

3 Our summary of the strike prior is taken from the probation report.

4 Defendant was also convicted at that time of two other felonies and received

sentences as follows: a consecutive prison sentence of 16 months for evasion of a peace 

officer while driving recklessly (Veh. Code, § 2800.2), and a consecutive term of 

probation of 32 months for first degree burglary (§ 460, subd. (a)). 
3

PROCEDURAL BACKGROUND

Defendant was charged by information filed on February 21, 2013, with four 

felonies, namely, four counts of second degree burglary (§§ 459-460, subd. (b)). It was 

alleged that defendant had suffered a prior serious and/or violent felony conviction within 

the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivision 

(c)(1), namely, arson (§ 45, subd. (b)). 

On April 8, 2013, defendant entered a conditional plea of no contest to the four 

counts of second degree burglary and admitted the prior strike allegation. The plea was 

entered with the understanding that defendant (1) would be filing a Romero motion to 

request that the court exercise its discretion to dismiss the prior strike allegation, and 

(2) would receive a maximum sentence of six years, eight months in prison. Before 

accepting the plea, the court apprised defendant fully of the rights he was giving up as a 

result of his no contest plea and concerning the consequences of that plea, confirming 

that defendant had freely and voluntarily signed a waiver of rights form in connection 

with the conditional plea. Counsel stipulated that there was a factual basis for the plea. 

Defendant thereafter filed a motion to have the court exercise its discretion to 

strike the prior strike allegation, in accordance with Romero, supra, 13 Cal.4th 497. The 

People opposed defendant’s Romero motion. After hearing argument on August 9, 2013, 

the court denied defendant’s motion. It then imposed a prison sentence of 32 months for 

the count 1 conviction (the lower term of 16 months, doubled due to the prior strike), and 

consecutive sentences of 16 months for each of the remaining three counts (one-third of 

the mid term [two years], doubled due to the prior strike), for a total prison term of six 

years, eight months. Defendant filed a timely notice of appeal based upon the sentence or 

other matters occurring after the plea that do not affect the validity of the plea. 
4

DISCUSSION

I. Denial of Romero Motion

A. Applicable Law

The Supreme Court held in Romero that the trial court, on its own motion, is 

empowered under section 1385, subdivision (a) to dismiss or strike prior felony 

conviction allegations in cases that are brought under the law known as the “Three 

Strikes” law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The court’s discretion, 

however, is limited to instances in which dismissing such strikes is in the furtherance of 

justice, as determined by giving “ ‘ “consideration both of the constitutional rights of the 

defendant, and the interests of society represented by the People . . . .” ’ ” (Id. at p. 530, 

original italics.) Thus, the court may not strike a sentencing allegation “solely ‘to 

accommodate judicial convenience or because of court congestion[’ citation, or] simply 

because a defendant pleads guilty. [Citation.] Nor would a court act properly if ‘guided 

solely by a personal antipathy for the effect that the three strikes law would have on [a] 

defendant,’ while ignoring ‘defendant’s background,’ ‘the nature of his [or her] present 

offenses,’ and other ‘individualized considerations.’ [Citation.]” (Id. at p. 531.)

The Supreme Court later explained “the ‘concept’ of ‘furtherance of justice’

within the meaning of Penal Code section 1385[, subdivision] (a) [which Romero had 

recognized as being] ‘ “amorphous.” ’ [Citation.]” (People v. Williams (1998) 

17 Cal.4th 148, 159 (Williams).) Our high court noted that in deciding whether to 

dismiss a strike “ ‘in furtherance of justice’ pursuant to Penal Code section 

1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider 

whether, in light of the nature and circumstances of his [or her] present felonies and prior 

serious and/or violent felony convictions, and the particulars of his [or her] 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 [or she] had not previously 

been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.) The 
5

sentence to be meted out to the defendant “is also a relevant consideration . . . in fact, it is 

the overarching consideration because the underlying purpose of striking prior conviction 

allegations is the avoidance of unjust sentences. [Citation.]” (People v. Garcia (1999) 

20 Cal.4th 490, 500.) If the court strikes or dismisses one or more prior conviction 

allegations, its reasons for doing so must be stated in an order entered on the minutes. 

(Ibid.) Conversely, the trial court has no obligation to set forth its reasons for deciding 

not to strike or dismiss prior strikes. (In re Large (2007) 41 Cal.4th 538, 546, fn. 6; see 

also In re Coley (2012) 55 Cal.4th 524, 560.)

The granting of a Romero motion is “subject to review for abuse of discretion. 

This standard is deferential. [Citations.] But it is not empty. Although variously phrased 

in various decisions [citation], it asks in substance whether the ruling in question ‘falls 

outside the bounds of reason’ under the applicable law and the relevant facts. 

[Citations.]” (Williams, supra, 17 Cal.4th at p. 162; see also People v. Garcia, supra, 

20 Cal.4th at p. 503.) And this abuse of discretion standard also applies to appellate 

review of the denial of Romero motions. (People v. Carmony (2004) 33 Cal.4th 367, 

374-376 (Carmony); see also id. at p. 375: “ ‘Discretion is the power to make the 

decision, one way or the other.’ ”) It is the defendant’s burden as the party attacking the 

sentencing decision to show that it was arbitrary or irrational, and, absent such showing, 

there is a presumption that the court “ ‘ “acted to achieve the legitimate sentencing 

objectives, and its discretionary determination to impose a particular sentence will not be 

set aside on review.” ’ [Citations.]” (Id. at p. 377.) Such a discretionary decision 

“ ‘ “will not be reversed merely because reasonable people might disagree.” ’ ” (Ibid.)

Placing in context the circumstances under which a court properly exercises its 

discretion in granting a Romero motion, the Supreme Court has explained: “[T]he 

[T]hree [S]trikes 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 
6

that conforms to these sentencing norms is both rational and proper. [¶] In light of this 

presumption, a trial court will only abuse its discretion in failing to strike a prior felony 

conviction allegation in limited circumstances.” (Carmony, supra, 33 Cal.4th at p. 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 [or she] squarely 

falls once he [or she] 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.” (Ibid.)

B. Defendant’s Romero Motion

Defendant argued below that the court should dismiss the prior strike allegation 

under Romero, after giving consideration to “the nature of the present offense, along with 

the equity of the ultimate sentence in light of other individualized considerations, 

including the interests of [defendant] and society as a whole.”5 He contended that his 

current offenses were neither serious nor violent, and were “considerably less serious 

than the earlier strike prior conviction[].” Defendant emphasized that he took 

responsibility for his crimes by pleading no contest to them. 

Defendant also argued that there were various extenuating circumstances in his 

background and personal history, including his drug addiction and alcohol abuse; two 

instances of childhood sexual abuse by a family member; the trauma of his parents’ 

having divorced when he was eight years of age; the fact that his mother had drug abuse 

 

5 We observe in passing that in making this argument in his written Romero 

motion, defendant omitted any reference to the court’s consideration of one of the three 

relevant factors the court must balance in deciding a Romero motion, namely, the nature 

and circumstances of the prior strike offense. (See Carmony, supra, 33 Cal.4th at pp. 

378-379) And his motion makes no reference to that strike prior, other than an oblique 

reference to having suffered from depression during his incarceration for the arson 

conviction. 
7

issues; and his having endured physical abuse from his mother. He also indicated in his 

motion that he had begun using crack cocaine when he was 12 years old, and had begun 

using marijuana, LSD, and methamphetamine when he was 13 years old. And he had 

begun consuming alcohol heavily when he was 19 years old. Defendant stated that 

“through the help of recovery programs, . . . [he] has been able to maintain his sobriety 

. . . [and] is committed to maintaining his sobriety and will seek out a drug rehabilitation 

program to support his sobriety when he is released.” 

Defendant acknowledged in his Romero motion that he has “a lengthy psychiatric 

history.” As a result of receiving psychiatric treatment during a prior incarceration,6“he 

was diagnosed with Psychotic Depressive Disorder, Post Traumatic Stress Disorder 

(‘PTSD’), and mental disability.” He has been prescribed various medications for these 

mental health issues. 

Defendant identified positive aspects in his life, including that he “has had stable 

employment. Most notably, he worked at A&A Distribution trucking company.”7 

Defendant also indicated that he had become a certified truck driver, had graduated from 

Santa Clara County’s Roadmap to Recovery Program, had been able to stay sober and 

find employment, and had the loving support of an extended family. 

The People argued in their written opposition that the facts underlying 

“defendant’s prior convictions include[d] extreme violence, repeated domestic violence, 

repeated auto theft, repeated residential burglaries, and repeated resisting arrest.” The 

 

6

The date of the incarceration when this diagnosis occurred is unspecified in 

defendant’s motion. Because defendant has suffered multiple incarcerations dating back 

to 1994, we are unable to determine from his motion whether the diagnosis occurred 

while defendant was in his early 20’s or late 30’s, or some period in between.

7 Defendant did not indicate any specifics in the motion, such as dates, to support 

his contention that he has had stable employment. The probation officer indicated in her 

report that defendant had worked at A&A Distribution from October 2010 through 

January 2011. 
8

opposition detailed the August 1995 arson incident,8indicating that defendant had 

physically abused his ex-girlfriend, had pointed a gun at her and her children, and had 

threatened her life, stating, “ ‘I’m gonna get you, I’m gonna burn you and your 

apartment.’ ” His ex-girlfriend feared for her life and moved her children to a relative’s 

home. The same night, defendant threw a firebomb through an open window of her 

home, while two co-renters were sleeping in it. The firebomb caused major damage. 

After defendant returned to the area that night and was spotted by police, he fled in a 

stolen car with stolen license plates. A high-speed chase on city streets ensued that 

included a police helicopter. Speeds of up to 100 miles were reached. Defendant crashed 

through the gate of a private school. At one point aimed his car directly at a sheriff’s 

vehicle. He ultimately crashed into a home. After giving chase on foot, the peace 

officers apprehended defendant; six officers were required to subdue him. There was 

evidence that when he returned to his ex-girlfriend’s home the same night after 

firebombing it, he was in possession of materials to create a second firebomb. 

The People also emphasized defendant’s criminal history and his performance on 

parole and probation. They noted, based upon the probation report, that defendant had 

been “on parole at the time he committed the current offenses, [his] probation had been 

recently revoked three times, he [had] committed domestic violence while on parole (and 

had never registered for his domestic violence class), and had seven felony priors and 

 

8

The probation report contained no information about the facts underlying 

defendant’s prior strike conviction. The probation officer indicated that she had made a 

request for the case file, but that it had not been received at the time of the report’s 

preparation. The source material of the details underlying the arson conviction as 

described by the People is uncertain; however, defendant did not object below, nor does 

he object here, to the People’s recitation of the matter. We therefore consider the facts 

underlying the prior strike conviction as recited by the People as uncontroverted. (See 

Carmony, supra, 33 Cal.4th at p. 377 [defendant bears burden of showing trial’s court’s 

sentencing decision was arbitrary or irrational].) 
9

seven misdemeanor priors.” The People also argued that defendant, in reality, had three 

prior strike offenses. Besides the arson conviction, he had two prior first degree burglary 

convictions in 1991 and 1996. The People advised that it was only due to the age of the 

prior strikes that they had elected to charge defendant with only one of the three strike 

priors in this case. 

At the hearing on the Romero motion, defense counsel reiterated that defendant’s 

more recent history, including the current crimes, involved “a decreasing level of 

criminality.” Defense counsel also argued that defendant’s strike offense was remote. 

The People reiterated the egregious nature of the prior strike offense and that defendant 

had been convicted previously of two uncharged strikes. The People concluded that, 

when all factors were considered, defendant could not be considered to be outside the 

spirit of the Three Strikes law. 

The court denied defendant’s Romero motion. It noted that it had considered the 

nature and circumstances of the current crime and the prior strike offense, and the 

particulars of defendant’s background, character, and prospects, as required under the 

law. The court also indicated that it had considered defendant’s mental health issues and 

his substance abuse problems, his prior convictions for seven felonies and seven 

misdemeanors, and the fact that he had been imprisoned on three separate occasions. It 

concluded that defendant did not “fall outside of the spirit of the [T]hree [S]trikes [L]aw 

in whole or in part.” 

C. Discussion Regarding Denial of Romero Motion

Defendant argues that he “made a convincing case that he was outside the spirit of 

the Three Strikes Law based upon the remoteness of [his] prior strike, as well as pertinent 

factors related to the circumstances of the offenses and his future prospects.” He asserts 

that “the trial court’s denial of Romero relief was premised on an error or omission which 

renders the court’s denial of Romero relief a prejudicial abuse of discretion.” He 

contends that the trial court’s “complete omission of [consideration of defendant’s] 
10

sobriety and future prospects which place him outside the Three Strikes law” constituted 

an abuse of discretion. 

As noted, the court must determine from a review of the relevant factors whether 

there are “ ‘extraordinary’ ” circumstances such that the defendant, a “ ‘career criminal[,]

can be deemed to fall outside the spirit of’ ” the Three Strikes law. (Carmony, supra, 

33 Cal.4th at p. 378.) The court, in considering the Romero motion, was obliged to 

consider the three factors identified by the high court in Williams, namely, “[1] the nature 

and circumstances of [defendant’s] present felonies[, 2 the nature and circumstances of 

defendant’s] prior serious and/or violent felony convictions, and [3] the particulars of 

[defendant’s] background, character, and prospects . . . .” (Williams, supra, 17 Cal.4th at 

p. 161.) Our review of the record shows that the court considered each of these factors in 

concluding that this case did not present extraordinary circumstances warranting the 

court’s dismissal of the prior strike.

Concerning the first factor (current offense), the fact that the crimes were serial in 

nature—four in the span of less than a month—is noteworthy. The fact that the current 

offense was nonviolent does not mandate the granting of the Romero motion. (See 

People v. Strong (2001) 87 Cal.App.4th 328, 344 [reversing order granting Romero 

motion which was based in part on nonviolent nature of current offense; “the nonviolent 

or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the 

law”]; see also People v. Poslof (2005) 126 Cal.App.4th 92, 108 [even though current 

crime, failing to register as a sex offender, was nonviolent, denial of Romero motion not 

an abuse of discretion]; People v. Gaston (1999) 74 Cal.App.4th 310, 321 [although 

current crime of car theft “not as serious as many felonies,” it was “far from trivial”].)

Addressing the second factor in Williams, the prior strike offense was an arson

occurring in August 1995, a crime consisting of “an act of violence that is likely to cause 

harm to more than one person.” (People v. Clark (1990) 50 Cal.3d 583, 637.) Defendant 

had previously threatened his ex-girlfriend by pointing a gun at her and her children. He 
11

had also threatened her life, stating, “ ‘I’m gonna get you, I’m gonna burn you and your 

apartment.’ ” He followed up on this threat of violence by throwing a firebomb at night 

through an open window of his ex-girlfriend’s home. Two co-renters were sleeping there 

at the time. The firebombing of the structure caused major damage. Defendant not only 

endangered the lives of his ex-girlfriend and her two co-renters; he also threw the 

firebomb knowing that his ex-girlfriend had children.9 He then engaged the peace 

officers in a high-speed chase on city streets, thereby endangering officers and innocent 

bystanders. And it was determined that defendant, after firebombing the home and 

leaving, returned to the scene with materials to create and activate a second firebomb. 

Thus, the circumstances of the prior strike offense were egregious and showed a high 

level of violence and callousness. 

Consideration of the third factor enunciated in Williams—“the particulars of 

[defendant’s] background, character, and prospects” (Williams, supra, 17 Cal.4th at 

p. 161)—does not favor dismissal of the strike. Defendant’s criminal history was fairly 

extensive. Prior to the four current felonies, defendant had been convicted of seven 

felonies and seven misdemeanors. The prior felony convictions consisted of two vehicle 

thefts (in 1992 and 1996 [Veh. Code, § 10851, subd. (a)]); two first degree burglaries (in 

1991 [§§ 459, 460.1] and 1996 [§§ 459, 460, subd. (a)]); arson of an inhabited building 

(in 1996 [§ 451, subd. (b)]); reckless evasion of a peace officer (in 1996 [Veh. Code, 

§ 2800.2]); and being a prisoner in possession of a weapon (in 1998 [§ 4502, subd. 

(a)]).10 He had received and served prison sentences for three of the felony convictions. 

As noted by the People, three of these felonies were strike offenses. Of the misdemeanor 

 

9 Because defendant’s ex-girlfriend believed his prior threat, she had moved her 

children to a relative’s home before the firebombing incident.

10 The record is somewhat unclear concerning the misdemeanor convictions. 

Although the court indicated there were seven misdemeanor convictions, the record 

appears to indicate there were eight.
12

convictions, three involved crimes of violence (i.e., battery [§ 242], infliction of corporal 

injury on a spouse or cohabitant [§ 273.5], and battery of a spouse or cohabitant [§§ 242, 

243, subd. (e)]). 

Additionally, defendant was on parole when he committed the current offenses, 

and there were three instances in an approximate six-month period before the commission 

of the current offenses in which his probation was revoked and later reinstated. As 

described by the probation officer, who had spoken to defendant’s parole agent: “Agent 

Rodriguez . . . stated the defendant has sustained 7 Parole Violations in a 2-year span for 

not being in compliance with terms of Parole and for new law violations. She described 

his overall performance on Parole as bad.” Also, while on parole, defendant had 

committed an act of domestic violence—battery on a spouse or cohabitant (§§ 242, 243, 

subd. (e))—of which he was convicted in June 2011. The victim in that case was 

different from the one involved in the 1995 arson. Defendant received probation and was 

ordered to complete a domestic violence program, but as of the time of his arrest for the 

current offenses, he had not enrolled in such program. Obviously, defendant’s recidivism 

and multiple parole and probation violations demonstrate that he had not learned from his 

mistakes. (See Williams, supra, 17 Cal.4th at p. 163 [noting that multiple convictions 

prior to the present offense indicated that the defendant “ ‘had been taught, through the 

application of formal sanction, that [such] criminal conduct was unacceptable—but had 

failed or refused to learn his lesson’ ”].)

In addition to defendant’s criminal history, it is clear that the court considered 

other aspects of defendant’s background, including his drug dependence and his mental 

health history. Based upon the record before us, defendant had a minimal history of 

employment—the record shows that he had worked for a four-month period with A&A 

Distribution from October 2010 through January 2011. And the probation officer 

indicated that “[o]verall, [defendant’s] character and prospects appear to be unfavorable.” 
13

Defendant argues that the trial court abused its “discretion based on the its [sic] 

complete omission of [defendant’s] sobriety and future prospects which place him 

outside the Three Strikes law, as [defendant] does not represent a danger to society based 

upon his past strike or current theft offenses. [Sic.]” He argues that the court erred 

because it “barely paid any attention to the positive evidence of [defendant’s] background 

and commitment to sobriety and mental health treatment.” He argues that the evidence 

he submitted concerning “his commitment to sobriety, his mental health and substance 

abuse treatment, and his efforts to maintain steady employment,” together with a “lack of 

recent violent offenses, all tend to place [defendant] squarely outside the Three Strikes 

Law.” 

The court recited on the record the correct Romero standard, namely that in 

deciding whether to exercise its discretion to dismiss the strike prior, it was required to 

“consider whether in light of the nature and circumstances of his present felony and prior 

strike and the particulars of his background, character and prospects, the defendant may 

be deemed outside the spirit of the [T]hree-[S]trikes law in whole or in part.” It also 

indicated that it had “reviewed and considered all of the factors that would be favorable 

to [defendant].” It found, “[i]n view of the totality of the circumstances,” that defendant 

did not fall outside the spirit of the Three Strikes law. 

Defendant, in effect, contends that, because the court did not specifically articulate 

on the record all of the specific aspects of defendant’s background, character and life 

experience it considered in connection with his motion—including those factors which he 

believes supported favorable consideration of his Romero motion11—the court 

 

11 We acknowledge that certain aspects of defendant’s background and prospects 

appeared positive. But defendant’s “commitment to sobriety” was based only on an 

assertion in the written Romero motion. He acknowledged to the probation officer that 

he had a “problem with alcohol and illegal substance abuse,” but the probation report lists 

no information about defendant’s efforts or commitment to overcome those issues. 

Similarly, his claimed “efforts to maintain steady employment” were based upon the 

(continued)
14

necessarily failed to consider all relevant factors. But the law does not require the trial 

court to specify the reasons for denying a Romero motion. (In re Large, supra, 41 

Cal.4th at p. 546, fn. 6; see also In re Coley, supra, 55 Cal.4th at p. 560.) And we will 

not infer that the court failed to give adequate consideration to all relevant factors that 

were enunciated by our high court in Williams where there is no showing of such failure 

in the exercise of the court’s discretion. “Where the record is silent [citation] ‘in a postRomero case, the presumption that a trial court ordinarily is presumed to have correctly 

applied the law should be applicable.’ ” (Carmony, supra, 33 Cal.4th at p. 378, quoting 

People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Thus, the trial court’s denial of 

defendant’s Romero motion without expressly addressing the factors cited by defendant

does not support defendant’s contention that the trial court relied upon improper factors 

or failed to consider salient factors. (Carmony, at p. 378.)12

The court, after giving due consideration to the specifics of the current offense, the 

nature of the prior strike offense, and defendant’s background (including his criminal 

record), character and prospects, properly concluded that defendant did not fall outside of 

the letter and spirit of the Three Strikes sentencing scheme. (See People v. Philpot 

(2004) 122 Cal.App.4th 893, 906-907 [court properly considered the defendant’s history 

of continuously committing crimes for 20 years, his underlying drug addiction, and the 

 

conclusory statement in his motion that he “has had stable employment,” referencing his 

work at A&A Distribution. That job, according to the probation report, lasted for four 

months, and there is no other indication in the record concerning defendant’s claimed 

efforts to achieve stable employment. 

12 Defendant notes that the probation officer supported the granting of Romero 

relief. But that recommendation was apparently without the probation officer’s having 

any information about the prior strike; thus, it was not based upon consideration of all 

three factors that must be considered by the court in deciding whether to exercise its 

discretion to dismiss a prior strike. (Williams, supra, 17 Cal.4th at p. 161.) Furthermore, 

the court has no obligation to follow the probation officer’s sentencing recommendations. 

(See People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 66 [“the court does not 

simply rubber-stamp the recommendation of the probation report”].)
15

prior and current offense as indicative of his poor future prospects and that, as “a flagrant 

recidivist,” he was not outside the spirit of the Three Strikes law].) The circumstances 

presented by defendant here are not “ ‘extraordinary.’ ” (Carmony, supra, 33 Cal.4th at 

p. 378.) The court’s ruling did not “ ‘fall[] outside the bounds of reason’ under the 

applicable law and the relevant facts. [Citation.]” (Williams, supra, 17 Cal.4th at 

p. 162.) Therefore, we find that the court did not abuse its discretion in denying 

defendant’s Romero motion. 

DISPOSITION

The judgment is affirmed. 

Márquez, J.

WE CONCUR:

Rushing, P.J.

Premo, J.