Filed 11/4/14 P. v. League CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060521
v. (Super.Ct.No. SWF1201669)
BARRY EDWARD LEAGUE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.
Affirmed.
Richard Power, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and
Respondent.
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Defendant and appellant Barry Edward League pled guilty of failing to register as
a sex offender. (Pen. Code, § 290, subd. (b)).1 The registration requirement stems from a
1993 conviction in the state of Washington for lewd acts with a minor under 14 years of
age. Defendant admitted the prior offense for purposes of his guilty plea, but also filed a
motion to dismiss the strike under People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero). The trial court denied the motion. It then imposed the lower term for
violation of section 290, subdivision (b), and sentenced defendant to 16 months’
confinement, which it doubled to 32 months pursuant to the three strikes law.
On appeal, defendant contends that the court abused its discretion by refusing to
strike one or both of his prior strike convictions. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because of the 1993 Washington conviction, defendant has a lifetime obligation to
register as a sex offender. On August 8, 2011, defendant notified authorities in
Washington that he was moving to Temecula. Those authorities advised defendant of his
need to register in California and informed California authorities about his imminent
relocation. On August 25, 2011, members of the Riverside County Sheriff’s Department
contacted defendant at the address he had provided to Washington authorities, which is
an apartment complex in Temecula. Defendant admitted that he was required to register
1 All further statutory references are to the Penal Code, unless otherwise
indicated.
2
but he had not done so, despite having moved to California at least 11 days earlier. He
was consequently arrested for violating section 290.
ANALYSIS
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that a trial
court has discretion to dismiss three strikes prior felony conviction allegations under
section 1385. (Id. at pp. 529-530.) We review the denial of a Romero motion to strike
for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375, 377
(Carmony).) We ground our inquiry in two well-established principles. First, defendant
bears the burden of showing that the trial court’s decision was “irrational or arbitrary,”
and we will presume the trial court “‘acted to achieve legitimate sentencing objectives’”
should he fail to make the necessary showing. (Id. at pp. 376-377.) Second, we will not
reverse the trial court’s order if all defendant shows is that reasonable people might
disagree about its propriety. (Id. at p. 377.) “Taken together, these precepts establish 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.” (Ibid.) Phrased differently, “‘[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].” (Id. at
p. 378.)
To achieve greater unanimity in the statewide treatment of repeat offenders, the
three strikes law purposefully limits a trial court’s discretion in sentencing recidivist
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defendants. (Carmony, supra, 33 Cal.4th at p. 377.) The touchstone of the Romero
analysis is “‘whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his 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 had not previously been
convicted of one or more serious and/or violent felonies.’ [Citation.]” (Ibid.) No abuse
of discretion occurs when the trial court carefully considers and balances factors
establishing the “‘entire picture’” of the defendant. (In re Saldana (1997) 57 Cal.App.4th
620, 626-627 (Saldana).)
Here, the record on appeal demonstrates that the trial court carefully balanced
factors related to defendant’s sentence. In the first of a series of decisions that were
favorable to defendant, it rejected one of the People’s arguments and found that his
misstatement of his California address when he was still in Washington was not
necessarily an attempt to evade being located by law enforcement. It acknowledged that
the 1993 prior offense was “extremely remote,” the current offense was nonviolent,
defendant cooperated with law enforcement once the police contacted him in Temecula,
and he had solid prospects for becoming a contributing member of society.
In the end, though, the court found these factors outweighed by the severity of
defendant’s prior offense, which the court characterized as “the most serious prior [it had]
ever read” after briefly summarizing how defendant held a weapon to the minor he
sexually abused and muffled her screams. In addition, the court expressed “grave
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concern” over the facts that defendant, from his experiences in Washington, knew the
consequences of failing to register and still declined to prioritize his California
registration, instead lamely insisting he had not yet had an opportunity to comply with the
law, as well as that he and his wife hid his presence at the apartment complex in which
they lived from the property manager and other tenants. The court also noted that
defendant only suffered confinement in Washington because he violated the terms of his
release, which gave the court pause regarding defendant’s ability to comply with
probation terms imposed as a result of the conviction for violating section 290. Although
a violation of section 290 is not itself violent, the court found that the sex offender
registration scheme was both “serious” and accompanied by a “very, very significant”
societal interest in “keeping track of individuals who have been convicted of sex [crimes]
in their community.” (See Carmony, supra, 33 Cal.4th at pp. 378-379 [upholding
sentence of 26 years to life for repeat offender who failed to register as a sex offender on
an annual basis].) Finally, the court emphasized that, while defendant did not exhibit a
history of crimes of increasing violence, he did have, in addition the 1993 prior that
caused the need for him to register as a sex offender, prior misdemeanor convictions for
obstructing a public officer and resisting arrest.
For these reasons, we find the trial court did not abuse its discretion in doubling
defendant’s sentence under the three strikes law. In arguing to the contrary, defendant
relies heavily on People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff). There, the reviewing
court reversed a sentence of 25 years to life in a case in which the defendant registered as
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a sex offender but failed to comply with the requirement that he confirm his registration
address each year. (Id. at pp. 995-996.) As the Carmony court explained, however, all
the Cluff court actually held was that no substantial evidence supported the trial court’s
conclusion that the defendant had intentionally obfuscated his location for purposes of
evading detection. (Carmony, supra, 33 Cal.4th at p. 379.) “Unlike the trial court in
Cluff, which relied on a factor—the defendant’s intentional obfuscation of his
whereabouts—allegedly unsupported by the record, the trial court in this case refused to
strike defendant’s prior conviction[] based on factors allowed under the law and fully
supported by the record.” (Ibid.)
Defendant also cites Saldana, supra, 57 Cal.App.4th at p. 627, and People v.
Bishop (1997) 56 Cal.App.4th 1245, for the proposition that “the minor and non-
aggravated nature of the current offense or offenses is a powerful factor that can support
dismissal of a sufficient number of ‘strike’ priors so as to negate third strike or doubled
term status.” In each of these cases, however, the appellate court affirmed the striking of
priors by the trial court. (Saldana, at p. 624; Bishop, at p. 1248.) The “abuse of
discretion standard ‘measures whether, given the established evidence, the act of the
lower tribunal falls within the permissible range of options set by the legal criteria.’”
(People v. Jackson (1992) 10 Cal.App.4th 13, 22.) Because multiple outcomes may be
legally supportable when a trial court decides how to exercise its discretion, the fact that a
circumstance supported the striking of a prior offense in one case does not mean that the
same circumstance will require the same result in other cases. The trial court here
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considered the impact of the nonviolent nature of a section 290 violation, but found that
other factors regarding defendant outweighed this potentially mitigating circumstance.
Defendant has cited, and we have found, no case holding that the nonviolent nature of an
offense compels an order granting a Romero motion to strike. Reliance on Saldana and
Bishop is therefore unavailing.
Like the defendant in Cluff, defendant here argues no more than that the trial court
should have balanced the relevant factors differently. As it in fact engaged in careful
balancing, no abuse of discretion occurred.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
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