Filed 6/15/16 P. v. Rocha CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEJANDRO ANAYA ROCHA,

Defendant and Appellant.

 H041159

 (Santa Clara County

 Super. Ct. No. C1243433)

Alejandro Anaya Rocha challenges the trial court’s denial of his motion to dismiss 

a prior strike conviction under Penal Code section 1385.1 He also assigns error to the 

imposition of a $10 fine and related penalty assessments. For the reasons stated here, we 

will affirm the judgment. 

I. BACKGROUND

Defendant was charged with first degree burglary (§§ 459, 460, subd. (a); count 1) 

and petty theft with three or more prior convictions (§ 666, subd. (a); count 2). The 

information alleged a prior felony conviction within the meaning of section 667.5, 

subdivision (b), a serious felony conviction within the meaning of section 667, 

subdivision (a), and a strike conviction within the meaning of the Three Strikes law 

(§§ 667, subds. (b)–(i), 1170.12). Defendant entered into a negotiated disposition in 

which he pleaded guilty to the charges and admitted all allegations. The agreement 

provided for a maximum sentence of 10 years 4 months, with the opportunity to move to 

 

1 Undesignated statutory references are to the Penal Code.
2

have the strike allegation dismissed under People v. Superior Court (Romero) (1996) 

13 Cal.4th 497 at the time of sentencing. 

The court denied defendant’s Romero motion and sentenced him to four years on 

count 1 (the lower term of two years doubled for the prior strike); a 16-month 

consecutive term on count 2; and a five-year consecutive term on the serious felony 

allegation, for a total term of 10 years 4 months.2 It ordered $500 restitution paid to the 

burglary victim. It imposed fines and fees totaling $550, including and a $10 burglary 

conviction fine plus penalty assessments of $30 (§ 1202.5).3 

Defendant appealed from that judgment. He then petitioned the trial court for 

resentencing under section 1170.18 (Proposition 47) while his appeal was pending. We 

granted defendant’s motion to stay the appeal and issued a limited remand to the trial 

court to rule on the petition. The petition was granted, defendant’s sentence was recalled,

and defendant was resentenced to the same four year term on count 1 enhanced by five 

years for the serious felony allegation, for a total term of nine years. The court reduced 

defendant’s conviction on count 2 to a misdemeanor and imposed a concurrent six-month 

jail term which it deemed fully served. The court stayed the section 667.5, 

subdivision (b) enhancement, and it reimposed the original victim restitution, fines, and 

fees. We have since granted defendant’s motion to reinstate the appeal.

 

2

The court struck the additional punishment for the section 667.5, subdivision (b) 

enhancement under section 1385. 

3

The penalty assessments related to the section 1202.5 fine total $30. (§ 1464, 

subd. (a)(1) ($10); Gov. Code, § 76000, subd (a)(1) ($7); § 1465.7, subd. (a) ($2); 

Gov. Code, § 70372 ($5); Gov. Code, § 76000.5, subd. (a)(1) ($2); Gov. Code, 

§ 76104.6, subd. (a)(1) ($1); Gov. Code, § 76104.7, subd. (a)($3).) The clerk’s minutes 

and abstract of judgment showed $31 in penalty assessments, but the correct $30 amount 

is reflected on the minutes and abstract prepared after defendant’s 2015 resentencing. 
3

II. DISCUSSION

A. ROMERO MOTION

The trial court has the authority under section 1385 to strike a prior conviction 

allegation brought under the Three Strikes law “in furtherance of justice.” (§ 1385; 

Romero, supra, 13 Cal.4th at pp. 529–530.) In making that determination, the court is 

required to consider the defendant’s constitutional rights and society’s interest in a fair 

prosecution. (Romero, at pp. 530–531.) “[P]reponderant weight must be accorded to 

factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s 

present felonies and prior serious and/or violent felony convictions, and the particulars of 

his background, character, and prospects.” (People v. Williams (1998) 17 Cal.4th 148, 

161.) Circumstances must be extraordinary to deem a career criminal as falling outside 

the spirit of the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 378.) 

We review a trial court’s denial of a motion to dismiss an allegation under the 

Three Strikes law for an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at 

p. 375.) The party attacking the sentence has the burden to show that the decision was 

irrational or arbitrary. (Id. at p. 376.) Absent that showing, the trial court is presumed to 

have achieved legitimate sentencing objectives, and its discretionary determination will 

be upheld. (Id. at pp. 376–377.) In light of that presumption, an abuse of discretion will 

be found only in limited circumstances. An abuse of discretion occurs where the trial 

court is unaware of its discretion to dismiss, where it considers impermissible factors in 

declining to dismiss, or where the resulting sentence produces an arbitrary, capricious or 

patently absurd result under the particular facts of a specific case. (Id. at p. 378.) 

1. Trial Court Proceedings

a. Probation report and recommendations

The probation report showed an extensive criminal record. Defendant, born in 

1980, was convicted of escape (§ 4532, subd. (b)(1), a felony) in 1998 and theft (§ 484, 

subd (a)) in 2003. In 2004 he was convicted of misdemeanor second degree burglary 
4

(§§ 459, 460, subd. (b)), failure to provide for a child (§ 270), and carrying a concealed 

firearm (former § 12025, subd. (a)). He has 2004 felony convictions for second degree 

burglary (§§ 459, 460, subd. (b)) and petty theft with a prior conviction (§ 666). In 

May 2005 defendant was sentenced to two years in prison for first degree burglary 

(§ 459). In October 2006 defendant was arrested for carrying a concealed weapon, and 

he returned to prison to serve out his term. 

In 2009 defendant was convicted of driving with a blood alcohol level greater than 

the legal limit (Veh. Code, § 23152, subd. (b)), and in 2010 he was convicted of driving 

on a license suspended as a result of the 2009 conviction (Veh. Code, § 14601.2). In 

2010 defendant was convicted of possession of a controlled substance (Health & 

Saf. Code, § 11350) and, according to the Santa Cruz County Probation Department, he 

completed a Proposition 36 diversion program for that offense in 2011. 

In 2012 defendant committed the instant offenses. In March he and a codefendant 

burglarized a home in San Jose. They ransacked the residence and loaded the victim’s 

property into the bed of a pick-up truck. The victim, particularly upset over the theft of 

heirloom jewelry and a hard drive, sought her insurance deductible as restitution.

Defendants were identified by DNA from gloves left on the premises. In June defendant 

was caught stealing razors from Walmart, and in November he was arrested for the 

March burglary while in possession of a controlled substance. 

According to defendant’s interview with the probation department, by age 16 he 

had dropped out of high school, was in a gang, and addicted to heroin. He was able to 

maintain his sobriety for a period after his release from prison, but in 2009 he was 

arrested for DUI and in 2012 he started using methamphetamine and heroin. That 

addiction became fierce, costing him nearly $500 per week. His life spun out of control 

as he became desperate to support his habit. Defendant expressed remorse for his actions 

and a desire for substance abuse treatment. He had worked as a truck driver and street 
5

sweeper, and he wanted to start his own street sweeping business and be a committed 

husband and father.

The probation department recommended that defendant serve the maximum 

negotiated 10 years 4 months sentence based on his long-standing pattern of criminal 

behavior, and his failure to take responsibility or seek help for his substance abuse. 

b. Defendant’s motion

Defendant urged that the strike allegation should be dismissed for several reasons: 

Defendant had demonstrated his ability in the past to be a drug-free productive member 

of society, and with structure he would again be a contributing member of society. He 

had employment waiting for him upon his release, and he could better support his son, 

who has special medical needs, both emotionally and financially, with a shorter prison 

sentence. The strike offense was 10 years old, no one was present during the current 

burglary, defendant had taken full responsibility for his actions, and he had expressed a 

serious desire to change his life. 

The motion stressed the hardships defendant faced growing up in a poor family 

and as the younger brother of a gang member. Defendant gravitated to that gang at a 

young age for protection and started using heroin when he was 16. After high school he 

distanced himself from the gang and found work as a professional sweeper. He married

and worked for Federal Express and later as a distributor for Pepsi. He started using 

heroin again after Pepsi laid him off, and his marriage ended. Desperately needing 

money, he committed a residential burglary in 2004 (the strike offense) and went to 

prison.

After his release, defendant met and married his current wife, participated in 

methadone treatment, and returned to work as a sweeper. At some point his work 

conflicted with his ability to attend the methadone clinic. He started using 

methamphetamine to cope with long work hours and stress, and he lost his job. That lead 

to more substance abuse.
6

With structure and a support system, defendant could be a contributing member of 

society. He intended to work, attend drug treatment, and support his family after his 

release.

c. Prosecution’s opposition

The prosecution agreed with the probation department’s recommendation. It 

argued that defendant was incapable of maintaining a crime-free life for any extended 

period of time, that he had demonstrated an inability or unwillingness to rehabilitate in 

spite of punitive measures and treatment opportunities, and that a lengthy incarceration 

would serve to protect the community. 

d. Sentencing hearing

Counsel for defendant began his argument by highlighting three cases. People v. 

Williams, supra, 17 Cal.4th 148 instructed courts to “factor the particulars of the person’s 

background, character, and prospects.” People v. Garcia (1999) 20 Cal.4th 490 directed 

courts to consider the actual length of a defendant’s sentence. And People v. Bishop

(1997) 56 Cal.App.4th 1245 “indicate[d] that even though if someone has prior strikes 

and they fall within the strikes law, and in a sense they deserve a lengthy sentence, the 

Court still nonetheless should look at the individual and see if they deserve a lesser 

sentence still within the scope[] of the sentencing parameters.” At that point counsel 

turned his argument to defendant: “With regards to [defendant’s] background, as I 

indicated in my papers, [defendant] came from a tough background. He’s one of six 

siblings.” The court interjected: “You do understand in response to your last comment

that the cases also indicate that the Court is not permitted to base a decision on a strike 

prior based on what I may feel is an excessive sentence.” The court continued: “If the 

Court looks at the sentence involved, the total length of the sentence involved, I can’t 

decide a Romero motion based on that alone.” Counsel agreed, stating “I don’t think that 

could be the sole factor.”
7

Counsel continued, describing defendant’s life as he had in his motion. He 

pressed that defendant’s criminal conduct was attributed to drug addiction, his crimes 

were not violent offenses, and he had family support and job prospects. He urged that 

seven or nine years, with defendant serving 50 percent of that time, would be an 

appropriate sentence.4

The prosecution maintained its opposition, citing defendant’s extensive record, 

including parole violations, and expressing concern for the public safety when things 

invariably go poorly in defendant’s life. 

The court denied the motion, noting that it had read the moving papers and letters 

written in support of defendant, but it had to consider the bigger picture. It explained that 

defendant had not learned from his earlier prison commitment; there was “no real 

washout period” when he had been crime-free following that incarceration. The court 

continued: Defendant “blame[d] a lot of his problems and his criminal behavior on his 

drug addiction, I don’t think I can really take that into consideration. [¶] He did 

Proposition 36 once in Santa Cruz, apparently successfully, but it obviously didn’t help 

him kick his habit because he went back to using drugs subsequent to that, as counsel 

indicated, when things went bad for the family.” The court noted the three crimes 

committed in 2012, one involving loss to a victim. It summarized: “So I think a pattern 

of criminal conduct was ongoing. I think based on the fact that his conduct is ongoing 

and seems like every time something goes a little wrong in his life, he turns to crime to 

solve that problem. I think that based on all these factors I cannot say -- and also you 

indicated he has jobs waiting, but he doesn’t have a job currently. He didn’t have a job 

when this crime was committed or when he was incarcerated. Hopefully, he will have a 

 

4 Defendant’s burglary conviction carried a sentence of two, four, or six years 

(§ 461, subd. (a)) with eligibility for 50 percent work and conduct credits. (§ 2933.) The 

strike allegation subjected defendant to a doubled prison term, and it reduced his credit 

eligibility to 20 percent. (§ 1170.12, subd. (a)(5).)
8

job waiting when he gets out of prison, but I can’t say looking at his history that his 

prospects are excellent. [¶] Hopefully things will work out after this prison commitment. 

I will say that I have considered this. I have spent a lot of time thinking about this, but I 

just -- I can’t, in good conscience, say that this clearly falls outside the spirit of the 

3 strikes law. This is the type of conduct that the 3 strikes law was enacted to prevent 

and to rectify[.]”

Counsel interrupted, requesting the court to deem count 2 a misdemeanor under 

section 17. The court responded: “I’m not inclined to do that [counsel], given all the 

history. So I think that the sentence that is recommended of 10 years 4 months is the 

minimum sentence. I am giving him the mitigated term.”

2. Analysis

Defendant argues that the trial court failed to properly exercise its discretion in 

determining whether to dismiss his strike conviction. Focusing on selective comments

made during the Romero hearing, defendant contends that the court “erroneously 

restricted its consideration of [defendant’s] background, and it renounced the overarching 

consideration of whether the ultimate sentence was just.” The record, considered in full, 

does not support defendant’s position. 

Defendant points to the court’s comment that it could not grant a motion under 

Romero based on the length of sentence alone (which was a correct statement of law) as 

demonstrating a failure to consider defendant’s background. That comment, made just as 

counsel shifted focus to defendant’s upbringing, was a response, as the court itself noted, 

to counsel’s “last comment” about “the cases.” The court’s comment was clearly 

directed at counsel’s legal recap, not at the reference to coming from “a tough 

background,” as defendant asserts. Nor did it reflect a misimpression by the court that 

sympathetic factors concerning a defendant’s background and social history could not 

influence its Romero calculus. The court considered those factors—indeed, it read 

defendant’s motion and letters of support, listened to counsel’s argument, and spent a 
9

great deal of time thinking about the motion—but ultimately it felt defendant did not 

present an extraordinary case warranting deviation from a sentence under the Three 

Strikes law. 

Defendant argues that the court was unaware of its discretion to consider his 

background, particularly his drug addiction, because it commented “I don’t really think I 

can take that into consideration.” But that comment was made after the court had heard 

and considered defendant’s plea for leniency in its entirety. In our view, the court was 

fully aware of its task to weigh defendant’s background, character and prospects against 

the prosecution’s interest in public safety, and it did so. The parties set forth the 

applicable law in their papers which the court read, and the court did not take any issue 

with defendant highlighting key language in Williams about considering a defendant’s 

background, character, and prospects in ruling on a Romero motion. We understand the 

court’s comment only to mean that, in its view, defendant’s drug addiction did not 

warrant deviation from the Three Strikes law sentencing scheme.

Finally, the court’s comment that the “minimum sentence” was 10 years 4 months 

did not reflect a misunderstanding that it lacked discretion to strike defendant’s prior 

conviction without regard to whether the sentence was excessively punitive simply 

because defendant had engaged in criminal conduct encompassed by the Three Strikes 

law. In explaining its denial of the Romero motion and rejecting defendant’s request to 

reduce count 2 to a misdemeanor, the court merely confirmed its satisfaction with the 

maximum sentence under the plea agreement—which was also the minimum sentence 

with the Romero motion no longer in play and count 2 fixed as a felony. The comment 

did not reflect on the court’s exercise of discretion in deciding the Romero motion, much 

less suggest any misunderstanding of the law. We find no improper exercise of 

discretion on this record and no due process violation. 
10

B. The SECTION 1202.5 FINE AND RELATED PENALTY ASSESSMENTS

Section 1202.5 directs the trial court to impose a $10 fine on a person convicted of 

robbery, burglary, or theft provided he or she has the ability to pay the fine. At the 

original sentencing hearing, the trial court imposed that fine plus $31 in mandatory 

penalty assessments, apparently without making an ability to pay determination. 

Defendant did not assert an inability to pay or otherwise object to imposition of that fine. 

Defendant has forfeited any claimed trial court error related to the burglary 

conviction fine in light of People v. McCullough (2013) 56 Cal.4th 589, 598, which held 

that a defendant who fails at sentencing to assert his or her inability to pay a fee forfeits 

the right to challenge the sufficiency of the evidence of his or her ability to pay. (See 

also People v. Trujillo (2015) 60 Cal.4th 850.) Still, he presses that counsel at his 

original sentencing hearing was ineffective for failing to challenge imposition of that 

fine. 

Ineffective assistance of counsel requires a showing that counsel’s performance 

fell below an objective standard of reasonableness and the defendant was prejudiced by 

the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 

(Strickland).) “When a defendant makes an ineffectiveness claim on appeal, the appellate 

court must look to see if the record contains any explanation for the challenged aspects of 

representation. If the record sheds no light on why counsel acted or failed to act in the 

manner challenged, ‘unless counsel was asked for an explanation and failed to provide 

one, or unless there simply could be no satisfactory explanation’ [citation], the case is 

affirmed [citation].” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) Prejudice requires a 

showing “that there is a reasonable probability that but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” (Strickland, at p. 694.) A 

reasonable probability is “a probability sufficient to undermine confidence in the 

outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215.)
11

Here we find no deficient performance or prejudice. Building a record in the most 

favorable light for a possible appeal, counsel may have made a tactical decision to not 

challenge a $40 fine. Indeed, defendant was sentenced immediately following his 

Romero hearing, where he presented himself as a remorseful man who had accepted 

responsibility for his wrongdoings and wanted to make things right. Defendant had job 

prospects, and he intended to work after his release from prison. Counsel also may have 

thought an ability to pay claim would have been futile. There was no indication that 

defendant would be unable to work in prison, and his restitution, fines, and fees totaling 

$1050 were not insurmountable, even in light of his family responsibilities. And 

defendant has not shown prejudice, because on this record we find no reasonable 

probability that the court would have found defendant, who had the capacity and 

incentive to work, unable to pay an additional $40. 

III. DISPOSITION

The judgment is affirmed.
____________________________________

Grover, J.

I CONCUR:

____________________________

Bamattre-Manoukian, Acting P.J. 

I CONCUR IN THE JUDGMENT ONLY:

____________________________

Mihara, J. 

People v Rocha 

H041159