Filed 1/23/14 P. v. Maxon CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KENT LEE MAXON, Defendant and Appellant. H039199 (Santa Clara County Super. Ct. No. C1081500)

I. INTRODUCTION Defendant Kent Lee Maxon pleaded guilty to two counts of robbery. (Pen. Code, §§ 211, 212.5, subd. (b). 1 ) He admitted allegations that he personally used a deadly weapon (§ 12022, subd. (b)(1)) in the commission of both offenses and had suffered a prior conviction for robbery, which qualified as a serious felony and a strike (§§ 667, subds. (a), (b)-(i), 1170.12). After the trial court denied defendant’s motion to dismiss the strike allegation pursuant to People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 ( Romero ), it sentenced defendant to a 12-year prison term. On appeal, defendant contends the trial court abused its disc retion by denying his
Romero motion. For the reasons stated be low, we will affirm the judgment.

1 All further statutory references are to the Penal Code unless otherwise noted.2 II. BACKGROUND A. The Current Offenses 2 On June 19, 2010, defendant went to Bank of the West in San Jose. He entered through the front doors weari ng bicycling gear. He appro ached Katherine Tran, a bank teller, and handed her a note, which stated, “ ‘T his is a Robbery . . . here’s my gun – look up . . . money from both tills out and on counter . . . no ink bo mbs – I’ll just throw them at you.’ ” As Tran began to remove mone y from the top drawer, defendant told her
“ ‘Bottom drawer.’ ” Defendant showed Tran a gun inside a fanny pack. Tran, who was
“shocked and nervous” but did not “fea r for her life,” believed the gun was a semiautomatic. She gave defendant money, which he placed in his fanny pack.
Defendant then left the bank. The bank late r determined that the till was short $2,650. On June 22, 2010, defendant went to Co merica Bank in Saratoga. He rode there on a mountain bike. He approached the telle r window where Maly Nuon was working, and he gave Nuon a note, which read, “ ‘ This is a robbery, give me all your money.’ ” The note may also have mentioned a gun. Nuon began putting mone y into an envelope,
which defendant took and left. Nuon believed defendant had a gun in his fanny pack. She was “extremely scared.” Defendant was identified from fingerprints on the demand note that he left during the Bank of the West robbery. On July 1, 2010, defendant was arrested at his residence
in Santa Cruz. Defendant ad mitted he had committed the tw o robberies, saying “that the only reason he wanted to come clean was so the Officer could tell the women (tellers) that it was not a real gun and that it was a toy gun. It was important to him that they
knew he would never have hurt them.” Defe ndant cried when talking about the tellers and wrote them apology letters.

2 As defendant was convicted by plea, th e facts of the current offense are taken from the probation report.3 Defendant described ho w he had committed the Co merica Bank robbery. He drove to Saratoga with his bicycle in the tr unk and parked some distance from the bank.
He rode to the bank and rode back to his car afterwards, then put his bicycle back into the trunk and drove away. He disposed of the money in the ocean because the teller had put a dye pack in the envelope.
Defendant admitted he had a pellet gun when he committ ed the Bank of the West robbery, but he claimed he did not have the gun during the Comerica Bank robbery. Defendant explained his motivation for committing the robberies. He needed money for house payments a nd household bills. He conf essed to committing two more
bank robberies in Santa Cruz. At the tim e of sentencing, defe ndant was facing two robbery charges in Santa Cruz County. B. The Prior Offense 3 In 1993, defendant committed a bank r obbery with his brother. He was 27 years old at the time. His brother had significant gambling debts and was suicidal. “To help his brother and to keep hi s brother from committing suicid e, they robbed Bank of
America in Santa Cruz with a sawed off shot gun,” which had no ammunition. They took $38,000 from the bank a nd were immediately apprehended, so the money was returned to
the bank. Defendant was convicted of possessing a dangerous weapon (former § 12020) and robbery (§ 211), with an allegation that he had been armed with a firearm (§ 12022, subd. (a)(1).) He served one year in co unty jail and then successfully completed probation. C. Plea Proceedings On March 15, 2011, defendant pleaded guilty to both ro bbery charges. He also admitted both allegations of de adly weapon use (§ 12022, su bd. (b)(1)), as well as the

3 The facts of the prior offense ar e taken from the probation report.4 allegations that he had suffered a prior robb ery conviction that qualified as a serious felony and a strike (§§ 667, subds. (a), (b)-(i), 1170.12). During the plea proceedings, the parties agreed that defend ant faced a maximum prison term of 19 years, and, if a Romero motion was granted, a minimum prison term of eight years. D. Probation Report Defendant was 45 years old in May of 2011 when he was interviewed by the probation officer. Defendant began using cocaine in 1983, when he was a senior in high school. His drug use “got worse in 2010, after his wife left him.” At that point, he used cocaine five to six times per day, spending about $150 pe r week on the drug. Defendant also began using marijuana in 1983, and his use of that drug became more frequent after his wife left him: he began smoking it on a daily basis. Likewise, his consumption of alcohol increased to the poin t where he was “tipsy on a da ily basis.” Defendant had not previously participated in substance a buse programs, but he was doing so while incarcerated in jail. Defendant had separated from his wife in February of 2010, and she was living in the state of Washington with their two young children. He had started a handyman business in 1994, but his income had been sign ificantly reduced due to the economy. He had attended three years of college. Defendant expressed remors e during his probation interv iew. He indicated that after he served his sentence, he would live w ith his father in Castro Valley, work as a painter or handyman, and go back to scho ol to learn about the solar industry. E. The Romero Mo tion and Opposition
In his Romero motion, defendant highlighted th e following facts. His only prior conviction was the prior robbery, which he had committed in 1992. He “committed no other law violations” until 18 years later, when he committed the present offenses. In the5 interim, he had married, become a father, and started a business. However, after his business had failed due to the economy and his wife and children had left him, his substance abuse had “spiral[ed] out of control.” Concerning the current offenses, defe ndant emphasized that he immediately
confessed and that – at least in one of the robberies – he had not been armed with an “actual weapon.” In addition, his crimes had been “comm itted quietly and calmly” and
thus “were not violent.” The prosecution filed an opposition to defendant’s Romero motion, arguing that striking the prior conviction would be an ab use of discretion. The prosecution argued that “[r]obbery is a serious an d violent felony” and pointed out that the two tellers had been fearful during the robberies. The pros ecution argued that even if, as defendant claimed, he was not actually armed with a weap on during both robberies, he did “threaten the use of violence” in both crimes. The pros ecution further noted that the two robberies occurred close together in time to one anothe r, and close in time to two other robberies
that defendant committed. Concerning the prior offense, the pros ecution noted that it had occurred when defendant was 27 years old and t hus defendant did not have “the excuse of youthful poor decision making.” Regarding defendant’s background, char acter, and prospects, the prosecution
claimed that defendant had not been “a law-abiding, ga infully employed citizen” during the 18 years between his offens es, in that he had borrowed a large sum of money from his wife’s family without returning it. Finally, the prosecution noted th at although defendant had admitted his guilt in the present case, he also had been caugh t quickly and had not
turned himself in.6 F. The Romero Hearing/Sentencing
The trial court heard defendant’s Romero motion on August 8, 2011. At the beginning of the hearing, defe ndant addressed the court to explain what happened with
the loan from his in-laws. The tria l court then made its findings. The trial court indicated it had “spent a lot of time” on the case, trying to “see if there is something in the prospects that would tell me this could never – financial difficulty would never trigger a similar response. ” The court “couldn’t find that in this case.” Instead, it found a defendant who had been “taking the easy way out” whenever he “became in financial straits” by robbing ba nks and “scar[ing] people half to death.”
The court believed defendant wo uld likely “resort to illegal activity in order to gain money again” in the future. The trial court f ound that defendant fit the profile of a typical bank robber, in that he had no other criminal history but had repeat edly robbed banks.
The court did not see defendant “as much different” than other bank robbers.
The trial court indicated that because de fendant’s prospects were not good, “there is no reason to grant the Romero .” The court further noted, “In fact, I think it would be [an] abuse of discretion to do so. But even if it wouldn’t, he loses on all three prongs of
the traditional Romero test.”
The trial court then addressed defendant’s addiction, noting th at it “worsens his prospects” because “people who have an ad diction are more likely to re-offend.”
The trial court also addressed the effect of defendant’s possible future crimes on
the victims. It noted that if he went on “a nother string of bank robberies,” it could cause
victims to suffer heart attacks and have “n ightmares of reliving these situations.” Regarding the overall sentence, the tria l court noted that it was not sentencing
defendant for the Santa Cruz crimes and that it was “not sure what [it] would have done” with those charges. The court stated that ru nning all of the sentences consecutively might be “too much of a penalty.” The court noted that the Santa Cruz court might see “their7 cases differently and grant[] a Romero in those cases,” since there were “some positive things about the defendant in his prospects prong.” Ultimately, the trial court determined th at there was not “eno ugh to overcome the serious and violent nature of the prior[] and these current cases and all the negatives,” and
it denied defendant’s Romero motion. It imposed a 12-year prison term, comprised as follows: the two-year low term for count 1, doubled to four years because of the strike; a consecutive one-year term for th e deadly weapon use allegati on associated with count 1; a consecutive two-year term for count 2, calcu lated at one-third of the midterm; and a consecutive five-year term for the prior serious felony convic tion (§ 667, subd. (a)). The court stayed the punishment fo r the deadly weapon use allega tion associated with count 2 pursuant to section 1385.

III. DISCUSSION
Defendant contends the trial court abused its discretion by denying his Romero motion. As we shall e xplain, we find no error. A. Applicable Law
In People v. Carmony (2004) 33 Cal.4th 367 ( Carmony ), the California Supreme Court set forth the basic principles applicable to a trial court’s decision to strike a prior
conviction. “ ‘In Romero, we held that a trial court may st rike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own moti on, “in furtherance of justice” pursuant to . . . section 1385(a).’ [Citation.] We further held that ‘[a] court’s discretionary decision to dismiss or to strike a sentencing allegatio n under section 1385 is ’ reviewable for abuse of discretion. [Citation.]” ( Carmony, supra, 33 Cal.4th at p. 373.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party atta cking the sentence to cl early show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a8 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.] Sec ond, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘A n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts es tablish 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.” ( Carmony, supra, 33 Cal.4th at pp. 376–377.) “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sent encing requirement to be applied in every case where the defendant has at least one qu alifying strike, unless the sentencing court “conclud[es] that an exception to the scheme shou ld be made because, for articulable reasons which can withstand scrutiny for abus e, this defendant should be treated as though he actually fell outsi de the Three Strikes scheme.” ’ [Citation.]” ( Carmony,

supra, 33 Cal.4th at p. 377.) “ ‘[I]n ruling wh ether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursu ant to Penal Code section 1385(a), or in reviewing such a ruling, the court in questi on must consider whether, in light of the nature and circumstances of his present fel onies 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.’ [Citation.]” ( Carmony, supra, 33 Cal.4th at p. 377.)
B. Contentions
Defendant contends that the trial court made four errors in analyzing his Romero motion. First, he claims the trial court “exa ggerated the gravity of the current crime[s],” by failing to acknowledge that th ey involved a “considerable la ck of planning.” Second,9 he claims the trial court “mischaracterize d the current and past strike offense as
‘violent’ ” since none of the crimes involved any “ ‘actual violence.’ ” Third, he claims the trial court wrongly observed that “ ‘it w ould be an abuse of discretion’ ” to grant
Romero relief. Finally, he contends the trial c ourt failed to consider several favorable factors relating to his backgroun d, character, and prospects, as well as the actual sentence that would be imposed if the Romero motion was granted. The Attorney General contends the trial court “carefully considered” all pertinent
factors and did not abuse its discretion in denying the Romero motion. C. Analysis Taking defendant’s contentions in turn, we first disagree that his current offenses
were not as serious as the trial court found. According to defendant, the robberies were “unsophisticated and u nplanned.” The record does not support this claim. Defendant obviously planned both robberie s: he had prepared notes for the tellers, and he had
traveled to San Jose from Santa Cruz with his bicycle in his car, then rode the bicycle to and from the banks to facilitate his escapes and avoid bei ng caught. He was also a sophisticated bank robber, as he knew that th e teller could place “ ‘ink bombs’ ” in the envelope with the money. The fact that he us ed a gun (even if it was, as he claimed, only a pellet gun) during at least one of the robb eries further supported a finding that the current offenses were serious, such that de fendant did not fall outside the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 377.)
Defendant also claims that his current offenses were less serious because they were committed 18 years after the prior offense and they were “situati onal,” in that they occurred “when his life had spiraled out of c ontrol.” While somewhat remote, the fact that defendant’s prior convicti on was for the same crime as in the present case militates against treating defendant as if the prior had not occurred. (See Carmony, supra, 33 Cal.4th at p. 377.) Likewise, although the current offenses may have been spurred by defendant’s circumstances, the trial court ap tly recognized that defendant appears to10 resort to bank robberies whenever he is “in financial straits” and that nothing in defendant’s history indicates he would not do so if he found himself in a similar situation
in the future. Second, we disagree that the trial cour t mischaracterized defendant’s current and prior robbery offenses as violent. Not only is robbery a “ ‘violent felony’ ” pursuant to section 667.5, subdivision (c )(9), but defendant’s characteriz ation of his crimes as not involving any “acts of violence” is misleading. Defendant was armed with a firearm in the prior robbery and the Bank of the West robbery, and he made reference to a gun in the Comerica Bank robbery. His actions at leas t implied a threat to use a firearm, and while not actually leading to violence, cannot be characterized as nonviolent in any way. (Cf. People v. Garcia (1999) 20 Cal.4th 490, 503 [defenda nt’s five prior burglaries were
serious felonies but did not “i nclude any actual violence”].) Third, we disagree that the trial court e rroneously found that it would have been an abuse of discretion to grant Romero relief in this case. Alth ough the trial court did make that remark, it also noted that there were “s ome positive things” such that the Santa Cruz court might see things differently and grant a Romero motion in defendant’s other case. Contrary to defendant’s claim, this isolated comment does not demonstrate that the trial
court believed it “did not have an option but to deny the re quested relief.” The record
demonstrates that the trial court considered the relevant factors, then exercised its discretion in denying defendant’s motion. Fourth, we disagree that the trial court erred by failing to consider certain factors concerning defendant’s backgr ound and character. Accord ing to defendant, the trial court should have considered: (1) the fact th at defendant had no “earl y criminal history;” (2) the fact that defendant was seeking trea tment for his controlled substance addictions; (3) the fact that a non-Three Strikes senten ce would still be significant – according to defendant, he still would have received a mini mum of seven years; and (4) the fact that his present offenses were all committed closely together during a difficult time in his life.11 The trial court is presumed to have consid ered all of the relevant factors relating to

a Romero motion in the absence of an affirmative record to the contrary. ( People v. Kelley (1997) 52 Cal.App.4t h 568, 582; see also People v. Myers (1999) 69 Cal.App.4th 305, 310 [“the fact that the court focused its explanatory comment s on the violence and potential violence of appellant’s crimes doe s not mean that it considered only that factor”].) Moreover, contrary to defendant’s claim, the reco rd indicates that the trial

court did consider the length of the term defe ndant would have received without the strike and the fact that the present offenses were all committed duri ng a short time period. During the plea proceedings, the trial court sp ecifically asked what defendant’s sentence
would be “if the Romero was granted,” and during the Romero hearing, the trial court
referred to defendant’s current offenses as having occurred during a “spree.”
Even if the trial court should have expressly addr essed the other two factors defendant identifies – his lack of any early criminal history and his recent efforts to control his substance abuse, neith er factor weighed in favor of Romero relief. Although defendant points out that “the lack of a j uvenile record” is “a factor tending to show suitability for parole” (see In re Bettencourt (2007) 156 Cal.App.4th 780, 803), he does not identify any authority for the propositi on that such a factor warrants granting Romero relief. Here, because defendan t’s adult record consists of multiple bank robberies, the trial court reasonably found that none of defe ndant’s prior and present offenses were the result of youthful indiscretion and thus that he did not fall outside the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 377.) Likewise, although the record indicates that defendant was seeking treatmen t for his substance abuse issues, the trial court was not required to consider this fact favorably in determin ing whether to grant
Romero relief. Nothing in the record indicates th at defendant’s criminality was directly related to his substance abuse, and it is signi ficant that until his current arrest, defendant
had done “little to address his substance abuse problems.” ( Carmony, supra, 33 Cal.4th at p. 378.)12 In sum, we find no basis for concluding that the trial court failed to consider all of the relevant factors in deciding whether to grant Romero relief or that the trial court abused its discretion by denying defendant’s Romero motion.

IV. DISPOSITION The judgment is affirmed.

_____________ _______________ _______________ BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

_____________ _____________ MÁRQUEZ, J.

_____________ _____________ GROVER, J.