Filed 7/17/15 P. v. Leon CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCO LEON,

Defendant and Appellant.

 D067306

 (Super. Ct. No. SCN334157)

APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. 

Armour, Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland and 

Kristen Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted Franco Leon of resisting an executive officer, a felony, (Pen 

Code, § 69;1 count 1), and possessing heroin, a misdemeanor (Health & Saf. Code, 

§ 11350, subd. (a); count 2). The trial court found true that Leon had a prior 

serious/violent felony conviction, residential burglary (§ 459). The trial court denied 

Leon's motion to strike the prior felony conviction and sentenced Leon to 32 months in 

prison, twice the lower term for count 1.2 (§ 667, subd. (e)(1).) 

Leon appeals his sentence. He contends that the trial court abused its discretion in 

refusing to strike his prior felony conviction (§ 667, subds. (b)-(i)). The trial court denied 

the motion to strike the prior strike because of the risk of harm Leon caused the officers 

in the instant case, his extensive criminal history, and his ongoing drug activity. We find 

no abuse of discretion and affirm.

FACTUAL BACKGROUND

Since this appeal does not challenge either the admissibility or the sufficiency of 

the evidence to support the convictions, we set forth only the facts relevant to the trial 

court's sentencing determination.

The instant offense occurred on July 8, 2014. Michael Duong and John Robledo, 

deputy sheriffs with the San Diego County Sheriff's Department were dispatched to 

investigate two males sleeping in a truck. The truck was parked in a residential area with 

an elementary school nearby. The bed of the truck was full of trash and other items, 

 

1 All statutory references are to the Penal Code unless otherwise indicated.

2 As to count 2, the trial court gave Leon credit for time served.
3

including a bicycle. Deputy Duong testified that it looked like "they were moving, living 

out of it, or hoarding." 

Jorge Lopez was sitting in the driver's seat and Leon was sitting in the passenger 

seat. Both men had their heads down and appeared to be sleeping. Duong noticed a 

bottle cap and a hypodermic needle with a black residue substance in them. The needle 

was next to Leon's left leg on the seat next to him. Lopez's pants were down by his 

thighs. 

Robledo put on latex gloves and knocked on the driver's side window. Lopez and 

Leon appeared to be on the "nod"; they were groggy and had trouble answering 

questions.

Leon covered the needle with his left hand in an attempt to hide it. Duong lost 

sight of it, asked Leon to step out of the vehicle, and opened the door. Robledo saw Leon 

exit the truck with a needle in his left hand. 

Leon stepped out and turned away from Duong. Duong grabbed his arms, trying 

to determine where the needle was. Leon put his left hand in his left pant pocket and then 

spun around and hit Duong in the chest with his left elbow. Leon then ran towards the 

rear of the truck. 

Robledo yelled, "He has got a needle," and ran towards the rear of the truck too. 

Leon ran with his arms out, flinging them at Robledo, and knocked Robledo's radio 

earpiece and hat off. Robledo put his right hand over Leon's neck to try to restrain him, 

but Leon resisted and pulled Robledo towards the street.
4

Together, Duong and Robledo pulled Leon down to the ground, stomach down. 

Leon got on his hands and knees attempting to get up. Duong struck Leon with his right 

knee in his left rib area, and Robledo struck Leon in the right side of his thigh three times 

with his knee. Leon continued to resist and flailed his left arm "wildly" left and right to 

prevent Duong from grabbing it and handcuffing him. His right arm reached for his 

waistband pocket area. Duong punched Leon three times in his left jaw. After the third 

time, Leon said, "I give up. Stop." Robledo got on top of his legs to try to get a hold of 

his arms, but Leon resisted by kicking his feet, flailing his arms, and slapping Robledo's 

hands away. Robledo testified that Leon's hands were strong and that he kept stiffening 

them and pulling them away. Duong and Robledo managed to turn Leon on to his 

stomach and handcuff him by striking him again. 

Duong found a hypodermic needle on the ground where the struggle had taken 

place. The metal part of the needle was bent. He also found a plastic bindle wrapper on 

the ground with a black tar substance in it. The crime lab confirmed it contained .10 

grams of tar heroin.

Doung next contacted Leon at the hospital. Leon said he had used heroin for 20 

years and admitted to having used "a little" heroin the night before. A blood sample

taken from Leon tested positive for methamphetamine and heroin use.

After the struggle, Robledo took off his glove and noticed that he had a cut on his 

left index finger. Robledo believed the cut on his finger was from the needle Leon had. 

He had also scraped his knees during the struggle. Robledo went to the hospital and had 
5

four vials of blood drawn. He had follow-up appointments for three months to test and 

monitor him for HIV and hepatitis C. He was ultimately found clear of any disease.

PROCEDURAL BACKGROUND

An amended information charged Leon with resisting an executive officer (§ 69; 

count 1), possessing heroin (Health & Saf. Code, § 11350, subd. (a); count 2), and 11

prior convictions. A Proposition 47 petition was filed to reduce the prior felony 

convictions to misdemeanors,3 with the exception of a 1999 residential burglary 

conviction and a 2008 vandalism conviction. 

Leon was convicted of counts 1 and 2. Prior to sentencing, Leon filed a motion to 

strike the prior residential burglary conviction for purposes of sentencing pursuant to 

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 

In a separate proceeding, the trial court found that Leon's strike prior for 

residential burglary was proven. In deciding whether to strike the prior conviction, the 

trial court considered a presentencing report prepared by the probation department. The 

report contained Leon's criminal and personal history. 

According to the facts set forth in the probation report, and documents produced to 

prove the prior conviction, the strike prior occurred in 1999. Leon and a codefendant 

broke into two homes. The first home was occupied when they entered, and they 

 

3 A Proposition 47 petition is pending to reduce the following felonies to 

misdemeanors: a felony second degree burglary in 1995, a felony drug possession 

offense in 1995, a felony drug possession offense in 1997, a felony attempted drug 

possession offense in 2008, and a felony drug possession offense in 2014. Defendant's 

request for this court to take judicial notice of the Proposition 47 petitions has been 

granted. 
6

attempted to steal money and personal property by ransacking the home and assembling 

property around the front doorway. The second home was vacant, with only a toolbox 

with a few tools in the living room.

The probation report also listed Leon's extensive criminal history. As a juvenile, 

Leon was convicted of second degree burglary in 1990. As an adult, his criminal 

convictions span from February 1995 to July 2014. 

Leon committed petty theft on February 28, 1995 (§§ 484-488), and soon after 

second degree burglary on April 4, 1995 (§ 459). Less than a month later, on April 24, 

1995, he was arrested for first degree burglary (§ 459), possessing burglary tools (§ 466) 

and a narcotic (Health & Saf. Code, § 11350, subd. (a)), and being under the influence of 

a controlled substance (id., § 11550, subd. (a)). He was sentenced to three years in 

prison, was granted probation, and had his probation revoked three times. It appears that 

he was returned to custody for almost two years and committed his next offenses, falsely 

identifying himself to peace officers (§ 148.9, subd. (a)), petty theft (§ 484), and being 

under the influence of a controlled substance (Health & Saf. Code, § 11550) in March 

1997. He was sentenced to 16 months in prison. In January 1999, he committed grand 

theft (§ 487, subd. (a)) and burglary (§ 459) and received a two-year sentence. 

Leon's next offenses, vandalism (§ 594, subd. (a)) and petty theft (§ 484), occurred 

on September 14, 2008. Approximately two months later, on November 24, 2008, before 

he was convicted and sentenced for these crimes, he was arrested for attempted 

possession of a controlled substance (§ 664; Health & Saf. Code, § 11350, subd. (a)) and 

giving false information to a peace officer (§ 148.9, subd. (a)). It appears that he served 
7

consecutive sentences, totaling 32 months as a result. In November 2010, he was found 

to be under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. 

(a)) and sentenced to another 120 days in jail. In May 2014, two months prior to the 

instant offense, he was convicted of possessing a narcotic (id., § 11350, subd. (a)), a 

controlled substance (id., § 11377, subd. (a)), unlawful paraphernalia (id., § 11364.1, 

subd. (a)) and a controlled substance without a prescription (id., § 11375, subd. (b)(2)), 

and being under the influence of a controlled substance (id., § 11550, subd. (a)).

The probation department also set forth Leon's personal history and reported that 

Leon is 40 years old and hangs out with friends he describes as "functioning addicts." He 

has an eight-year-old son that he has not seen in approximately three years. He has a 

supportive relationship with his mother and four siblings. His father passed away in 2012 

from complications stemming from stomach cancer. One brother was arrested for a 

burglary related offense and another brother for a substance abuse related offense. 

Leon dropped out of high school in the 12th grade, obtained his GED in 2009, and 

has taken some classes at Palomar College. He has worked in construction as a street 

sweeper, forklift operator, part and counter person, as tank cleaner on a naval base, and 

also as a maintenance worker, cleaning and restoring offices. He has been unemployed 

for a year.

Leon began using marijuana at the age of 13, methamphetamine at 16, and heroin 

at 17. He describes his addictions as "not very bad." He attended an inpatient drug 

treatment program at both the Fellowship Program and Nosotros. The first time he 

attended the Fellowship Program, he was there for a month. The second time, for two 
8

months, and the third time, for six months. He also attended Nosotros for three months. 

He has not been in a drug treatment program since 2010. 

The report stated that Leon relapsed in 2012 and had been using heroin and 

methamphetamine daily since the current offense. Leon stated that he doesn't think he 

needs a drug treatment program. Leon hopes to get his life together, further his 

education, get a career and joint custody of his son.

The probation report did not list any mitigating factors for purposes of sentencing. 

However, it listed several aggravating factors: his prior incarceration; his numerous 

convictions as an adult; his unsatisfactory performance on parole and probation; the fact 

that he was on probation and under the influence of and in possession of drugs when the

instant offense occurred; and the threat of bodily harm he created in this case due to his 

struggle with the officers while in possession of a needle. 

The probation officer found several additional facts disturbing. The instant 

offense is Leon's seventh felony conviction, and despite the risk of the inclusion of prior 

prison sentences, Leon has not altered his criminal behavior. Leon has shown a 

propensity for violence while under the influence of a controlled substance; and he does 

not believe he is in need of substance abuse treatment, despite his numerous prior drug 

related convictions and the fact that he was under the influence and in possession of a 

controlled substance in this case. 

The probation officer concluded that the Leon had "engaged in violent conduct 

that indicates a serious danger to society," and that Leon's "actions in the instant offense 

coupled with his repeated violations of the law clearly indicate he is a threat to society." 
9

The probation officer recommended, "[f]or the safety of the community," four 

consecutive years for the current felony conviction. The report stated that Leon is 

ineligible for a grant of probation. His overall performance on probation has been 

"extremely poor." His grant of probation has been revoked five times. He had only been 

on probation for two months before being arrested for the current offense. In addition, 

while on parole between May 1997 and December 2004, he was returned to custody on 

four occasions.

The trial court denied the motion to strike the prior strike. Based on his strike 

prior, the trial judge sentenced Leon to 32 months in prison, twice the lower term for 

count 1. Leon appeals. 

DISCUSSION

A. Legal Principles

Pursuant to section 1385, subdivision (a), when a person has been convicted of a 

felony and a prior serious and/or violent felony, a trial court may strike the prior 

serious/violent felony conviction for sentencing purposes under the "Three Strikes" law

in " 'furtherance of justice.' " (Romero, supra, 13 Cal.4th at p. 504; People v. Williams

(1998) 17 Cal.4th 148, 158 (Williams).) The Three Strikes law compels longer sentences 

for career criminals (People v. Strong (2001) 87 Cal.App.4th 328, 338) and dictates the 

sentencing requirement whenever a defendant has at least one prior qualifying strike. 

(People v. Carmony (2004) 33 Cal.4th 367, 377.) A trial court may depart from the 

sentencing norm prescribed by the Three Strikes law only " 'in furtherance of justice.' " 

(Williams, at pp.159, 158.) However, to do so, a trial court must be able to articulate
10

reasons why the " ' "defendant should be treated as though he actually fell outside the 

Three Strikes scheme." ' " (Carmony, at p. 377; Romero, at p. 508 [explaining that "the 

order striking such allegations simply embodies the court's determination that, ' "in the 

interest of justice" defendant should not be required to undergo a statutorily increased 

penalty' "].)

In determining whether the dismissal of a strike prior would be " 'in furtherance of 

justice,' a trial court or reviewing court, must consider, in light of the nature and 

circumstances of the current and prior felony convictions, the defendants background, 

character, and prospects for rehabilitation and whether these indicate that the defendant 

should be deemed outside the spirit of the Three Strikes law and "should be treated as 

though he had not previously been convicted of one or more serious and/or violent 

felonies." (Williams, supra, 17 Cal.4th at p. 161.) " 'At the very least, the reason for 

dismissal must be "that which would motivate a reasonable judge." ' " (Romero, supra, 

13 Cal.4th at pp. 530-531.)

A trial court's decision on a motion to strike a qualifying prior conviction is 

reviewed for an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) " ' "[T]he 

burden is on the party attacking the sentence to clearly show that the sentencing decision 

was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is 

presumed to have acted to achieve the legitimate sentencing objectives, and its 

discretionary determination to impose a particular sentence will not be set aside on 

review." ' " (Id. at pp. 376-377.)
11

" '[I]t is not enough to show that reasonable people might disagree about whether 

to strike one or more' prior conviction allegations." (Carmony, supra, 33 Cal.4th at 

p. 378.) " ' " 'An appellate tribunal is neither authorized nor warranted in substituting its 

judgment for the judgment of the trial judge.' " ' " (Id. at p. 377.) " '[W]here the record 

demonstrates that the trial court balanced the relevant facts and reached an impartial 

decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, 

even if we might have ruled differently in the first instance [citation]. 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 squarely falls once he 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." (Id. at p. 378.)

Nevertheless, the standard of review on appeal is deferential, not empty. 

(Williams, supra, 17 Cal.4th at p. 162.) The question before this court is whether the trial 

court's decision " 'falls outside the bounds of reason' under the applicable law and the 

relevant facts [citations]." (Ibid.) When the relevant factors "manifestly support the 

striking of a prior conviction and no reasonable minds could differ—the failure to strike 

would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 378.)

B. Analysis

Here, in deciding Leon's motion to strike the prior conviction, the trial court 

considered defense counsel's arguments in support of the motion, the probation officer's 
12

report and recommendations, and the People's sentencing brief and opposition to the 

motion. The trial court also reviewed Leon's "prior history from its inception and from 

the time that he did suffer the strike." In denying the motion to strike, the sentencing 

judge stated the following:

"The defendant could have avoided probably even a felony arrest 

as it turned out under [Proposition] 47, maybe not the felony arrest, 

but felony consequences had he just abided by the deputies'

commands. He did not. What best can be described from the 

evidence in the case, he did engage in confrontation with the 

officers, which resulted in the deputy and the defendant ending up in 

the middle of the street. [¶] There was some degree of injury to at 

least one of the officers. I believe that whether it resulted from the 

needle that the defendant had or some other factor, there was a cut to 

Deputy Robledo's knee and his left hand. Not knowing whether that 

came from the needle or otherwise. That officer -- I believe the 

other officer also had to have substantial amount of blood work to 

see if there was any transfer of any harmful agents to their bodies. 

[¶] And based on the defendant's record, the [c]ourt is not going to 

strike the strike. It's a substantial record. He has not removed 

himself from drug activity, which is still ongoing. And he chose to 

get involved in the physical altercation with law enforcement. [¶] 

So the [c]ourt does not feel that this case warrants and falls within 

the parameters with Romero where the court should grant relief."

These statements indicate that the trial court was aware of its discretionary 

authority, but elected not to exercise its discretion and dismiss the previous strike for 

purposes of sentencing. The court based its decision on Leon's choice to confront the 

officers in this case, physically resist arrest while in possession of a hypodermic needle, 

and expose the officers' to a serious risk of harm. The court also relied on Leon's sizeable 

criminal history and continuous drug use in making its decision. Based on this record, a 

reasonable judge could very easily conclude that Leon falls within the spirit of the Three 

Strikes law and should be sentenced in accordance with it.
13

Nonetheless, Leon argues that the trial court abused its discretion in declining to 

dismiss his strike prior for sentencing purposes because (1) he is not a violent criminal, 

(2) he was under the influence of drugs during the instant offense and it was not 

considered a mitigating factor at sentencing, and (3) his criminal record is not 

"substantial," since most of his previous convictions will be reduced to misdemeanors 

under Proposition 47. 

1. Defendant's Crimes and Conduct While Under the Influence of Drugs Pose a 

Substantial Risk of Harm to Policemen and the Public

On appeal, Leon argues that he is not a violent criminal. Specifically, he argues 

that in the instant offense, he was merely noncompliant, and that the prior strike was also 

a nonviolent offense, therefore he is not the type of offender at which the Three Strikes 

law is aimed.

A sentence that conforms to the Three Strikes law sentencing requirement is 

presumed to be "both rational and proper."4 (Carmony, supra, 33 Cal.4th at p. 378.) 

" '[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was 

intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.] To 

achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, 

as do other sentencing laws, but establishes a sentencing requirement to be applied in 

every case where the defendant has at least one qualifying strike, unless the sentencing 

 

4 "While a court must explain its reasons for striking a prior [citations], no similar 

requirement applies when a court declines to strike a prior [citation]. 'The absence of 

such a requirement merely reflects the legislative presumption that a court acts properly 

whenever it sentences a defendant in accordance with the [T]hree [S]trikes law.' " (In re 

Large (2007) 41 Cal.4th 538, 550.)
14

court "conclud[es] that an exception to the scheme should be made because, for 

articulable reasons which can withstand scrutiny for abuse, this defendant should be 

treated as though he actually fell outside the Three Strikes scheme." ' " (Carmony, at 

p. 377.)

The trial court here found no reason to exempt Leon from the three strikes 

sentencing scheme. In deciding not to strike the prior conviction, the trial court 

specifically referred to Leon's confrontation with the officers in this case and the months 

of testing that at least one of the officers had to undergo as a result of Leon's actions. 

Despite Leon's attempt to diminish the seriousness and violent nature of the current 

offense, the record shows that in a desperate attempt to evade the officers in this case 

Leon engaged in a physical altercation with both officers while in possession of a 

hypodermic needle, creating a serious risk of harm for the officers. 

Leon resisted arrest so strongly and persistently that the officers had to subdue him 

by physically striking him. Leon also reached for his waistband pocket area and flailed 

his arms wildly in an attempt to evade the officers. The hypodermic needle was also 

found near where the struggle had taken place, with the metal part bent, and Robledo 

found a cut on his finger that could have been caused by the needle. The fact that 

Robledo eventually, after three months of testing, was found to be free of any disease 

does not make Leon's conduct any less serious or violent.

The same potential for serious injury or death existed during the commission of 

his prior strike offense, the residential burglary. Residential burglary is recognized as an 

offense that poses a substantial risk to human life because of "the danger that the intruder 
15

will harm the occupants in attempting to perpetrate the intended crime or to escape and 

the danger that the occupants will in anger or panic react violently to the invasion, 

thereby inviting more violence." (People v. Estrada (1997) 57 Cal.App.4th 1270, 1281.)

The fact that a residential burglary is committed under fortuitous circumstances where no 

one is actually injured or no one is at home does not detract from the highly invasive and 

risk-fraught nature of the crime.

Moreover, Leon has resorted to violence on several occasions to escape arrest. In 

this case, he vehemently resisted arrest while in possession of a hypodermic needle. In 

2008, after being arrested when heavily intoxicated for violating a restraining order, he 

escaped the rear of a police car by breaking the car window while handcuffed. These 

incidents show that there is a high probability of serious injury or death every time Leon 

is apprehended for a crime and that he is a threat to officers charged with ensuring his 

compliance with the law. 

The probation officer reported that Leon has shown a propensity for violence 

while under the influence of a controlled substance and stated that "defendant's actions in 

the instant offense coupled with his repeated violations of the law clearly indicate he is a 

threat to society." The probation officer also recommended four consecutive years for 

the current felony conviction, "[f]or the safety of the community." 

Since the record demonstrates that Leon was violent in resisting arrest in this case, 

Leon is a drug addict and prone to violence when under the influence of drugs, and has 

reacted violently when arrested, the imposition of a longer sentence in accordance with 

the Three Strikes law is appropriate.
16

2. Leon's Drug Addiction Is Not a Mitigating Factor

Leon contends that the fact that he was under the influence of drugs affected his 

judgment in the instant offense and should have been considered a mitigating factor in 

determining his sentence. First, we note that whether Leon was intoxicated during the 

commission of the current felony is relevant to his culpability for the offense. Leon has 

already been convicted and, on appeal, Leon is not contesting the conviction itself, but 

his sentence for the conviction. Therefore, whether he was intoxicated during the 

commission of the current crime is irrelevant to this sentencing appeal. 

Second, in a sentencing determination, a "drug addiction is not necessarily 

regarded as a mitigating factor when a criminal defendant has a long-term problem and 

seems unwilling to pursue treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 

1511.) "As a policy matter, when a defendant has a drug addiction or substance abuse 

problem, [and] the defendant has failed to deal with the problem despite repeated 

opportunities, . . . shows little or no motivation to change his life style, and . . . the 

substance abuse problem is a substantial factor in the commission of crimes, the need to 

protect the public from further crimes by that individual suggests that a longer sentence 

should be imposed, not a shorter sentence."5 (Reyes, supra, 195 Cal.App.3d at p. 963.) 

 

5 "For example, the felony drunk driver who is suffering from an uncontrolled 

alcoholism should be sentenced to a longer term, not a shorter one, in order to prevent 

him from driving under the influence again. The robber or burglar who is taking either 

drugs or money to buy drugs to support his addiction, and who shows little incentive or 

ability to deal with his drug abuse problem, should be prevented from committing further 

burglaries or robberies for a longer time, not a shorter time." (People v. Reyes (1987) 195 

Cal.App.3d 957, 963 (Reyes).) 
17

In fact, if a substance abuse problem is accompanied by dangerous criminal conduct and 

violations of parole or probation, the addiction is an aggravating factor indicating a 

longer sentences is proper "because it suggests a high probability of further depredations 

on the public whenever the defendant is again out of custody." (Id. at p. 964.) This does 

not mean that a drug addiction can never be a mitigating factor, but a trial court must 

make a separate finding that the defendant's culpability is reduced because of it.6 (Id. at 

pp. 963-964.) 

Here, the trial court made no such finding and the record would not support it. 

The record demonstrates that Leon has had a life-long substance abuse problem, 

beginning at the age of 13 and he is now 40 years old. Leon has had numerous drugrelated convictions, and his past incarcerations have not altered his criminal behavior. In 

the instant case, Leon was under the influence of and in possession of a controlled 

substance.

Leon's attempts at rehabilitation have been unsuccessful. He has attended 

inpatient drug treatment programs for months at a time but has always returned to his 

 

6 (See, e.g., Reyes, supra, 195 Cal.App.3d at p. 964 ["We can readily conceive of 

defendants who have made a serious effort to cope with their substance abuse problems 

but who, having committed a crime during a time of relapse, might well be considered for 

a lower term under those rules. A drug dependency growing out of medical treatment 

might be considered to reduce culpability under some circumstances. There may be other 

circumstances where the defendant's alcohol or drug addiction might be considered in 

mitigation. But, where that addiction has simply provided the defendant with a 

continuing incentive or excuse to commit crimes, we see no reason why that addiction 

should be considered as a circumstance in mitigation."].)
18

drug habit. He has not been in a drug treatment program since 2010, and admitted that, 

since the current offense, he has been using heroin and methamphetamine daily. 

Leon is in denial as to the severity of his substance abuse problem. According to 

the probation officer, Leon described his addictions as "not very bad" and stated that he 

didn't think he needed a drug treatment program. 

Leon's previous performances on probation and parole have been unsatisfactory. 

He has had numerous probation revocations and was on probation when the instant 

offense was committed. He was also returned to custody on four occasions while on 

parole between May 1997 and December 2004.

Finally, the probation report did not list any possible circumstances in mitigation 

and only seven factors in aggravation, including his propensity for violence while under 

the influence of a controlled substance and the threat of great bodily harm involved in 

this case.

Although Leon seeks to portray himself as a victim of drugs, he is unwilling to 

pursue treatment, has demonstrated a propensity for violence when under the influence of 

drugs, and is a repeat offender that has not learned from his past incarcerations. Because 

this record is devoid of mitigation, we cannot say that the trial court's ruling fell outside 

the bounds of reason under applicable law and relevant facts. 

3. Leon Is a Revolving-Door Criminal

Leon argues that (1) because his prior strike occurred 15 years ago it should have 

been dismissed for purposes of sentencing, and (2) the trial court improperly considered 
19

his criminal record to be "substantial" because most of his previous offenses will be 

reduced to misdemeanors pursuant to Proposition 47. 

A trial court may not strike a strike prior merely because it is remote, it must look 

at the defendant's behavior from the time of the prior felony to the current offense. 

(People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) In addition, where a defendant 

has continuously committed criminal offenses during the period from the strike prior until 

the current offense, the court can consider even minor offenses to determine whether the 

defendant comes within the spirit of the Three Strikes law. (Williams, supra, 17 Cal.4th 

at p. 163.)

The trial court here properly took into account Leon's record of criminal offenses, 

including the felonies that may be reduced to misdemeanors.7 Although the strike prior 

occurred 15 years ago, Leon has not refrained from criminal activity. During this time he 

has been either in prison, on probation, paroled, in a treatment program or committing yet 

another offense. In fact, when he was arrested for the current offense on July 8, 2014, 

Leon was on parole for drug offenses he had been arrested for only two months earlier, 

on May 9, 2014. In addition, his latest offense involved violence and a threat of 

substantial harm to the officers. We thus find that the trial court correctly determined that 

Leon's "substantial record" did not warrant dismissal of the strike prior. 

Given Leon's severe substance abuse problem, his character and poor choice of 

companions, his unsuccessful treatment and minimal prospect of rehabilitation, his long 

 

7 We note that the Proposition 47 petitions are still pending and that, even if 

granted, our analysis remains the same.
20

and continuing record of offenses and violent conduct, Leon cannot be deemed to be 

outside of the spirit of the Three Strikes law. Finally, the probation report and the record 

on appeal are devoid of any mitigating factors that would exempt Leon from the required 

sentence. Therefore, we conclude under the deferential standard of review that the trial 

court was not arbitrary or capricious in denying the motion to strike the prior strike. 

Based on this record, we find that the trial court properly reviewed the matter and 

reasonably concluded that Leon was not outside the spirit of the Three Strikes law. 

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.