Filed 11/9/20 P. v. Grady CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079279
Plaintiff and Respondent,
(Super. Ct. No. F18903386)
v.
ANDRE MARCEL GRADY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Michael G.
Idiart, Judge.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Franson, J. and Peña, J.
Defendant Andre Marcel Grady stands convicted of forcible sexual penetration
and sexual battery by restraint. He contends on appeal that the trial court abused its
discretion in refusing to dismiss his prior felony “strike” conviction for purposes of the
“Three Strikes” law. The People disagree. We affirm.
PROCEDURAL SUMMARY
On May 22, 2018,1 the Fresno County District Attorney charged defendant with
sexual penetration by force (Pen. Code, § 289, subd. (a)(1)(A);2 count 1), attempted
forcible rape (§§ 261, subd. (a)(2), 664; count 2), assault with a deadly weapon (§ 245,
subd. (a)(1); count 3), two counts of making criminal threats (§ 422; counts 4 & 8),
assault with intent to commit rape (§ 220, subd. (a)(1); count 5), attempted forcible oral
copulation (§§ 288a, subd. (c)(2)(A), 664; count 6), and sexual battery by restraint
(§ 243.4, subd. (a); count 7). The complaint further alleged defendant had suffered a
prior strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)–
(i), 1170.12, subds. (a)–(d)).
On February 21, 2019, defendant pled no contest to counts 1 and 7, and admitted
the prior strike conviction. The trial court dismissed the remaining counts on the
prosecutor’s motion.
On April 22, 2019, the date scheduled for sentencing, defendant raised a Romero3
motion, requesting that the trial court dismiss the prior strike conviction allegation for
purposes of the Three Strikes law. The prosecutor opposed the motion. The court denied
defendant’s motion and sentenced him to 14 years’ imprisonment as follows: on count 1,
12 years (the middle term of six years doubled due to the prior strike conviction); on
1 All further dates refer to the year 2018 unless otherwise stated.
2 All further statutory references are to the Penal Code.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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count 7, two years (the middle term of one year doubled due to the prior strike
conviction), to be served consecutively to the sentence on count 1.
On May 16, 2019, defendant filed a notice of appeal.
FACTUAL SUMMARY4
On March 7, the victim lived in a tent near her mother’s residence. She fell asleep
at about 11:00 p.m. and slept until about 6:30 a.m. the following morning when she heard
defendant open the flap to her tent. Defendant entered the tent, closed the flap behind
him, and told her to be quiet and not to “ ‘try to do anything smart’ ” or he would stab
her. Defendant removed a folding knife from his jacket pocket and told the victim to
orally copulate him, but she refused. Defendant then forced the victim to undress and
digitally penetrated her vagina. He then placed a knife to the victim’s neck, told her he
was going to have sex with her, and again told her to orally copulate him. When the
victim again refused to orally copulate defendant, he grabbed her head scarf and began to
choke her with it. Defendant positioned himself on top of the victim and unsuccessfully
attempted to vaginally penetrate the victim three times before he ejaculated on her legs.
Defendant then fled.
The victim called 911 to report the assault. Law enforcement officers noted a
“nickel-sized” cut or stab wound on the victim’s neck.
On May 17, at about 5:00 a.m., the victim was sleeping in her tent when she was
awakened by a loud “scuffling sound.” Defendant cut a hole in the victim’s tent, climbed
through the hole, fell on to the victim, and caused the tent to collapse. Defendant held a
knife, masturbated himself, and pushed the victim onto her back. He threatened to stab
her if she did not open her mouth. The victim attempted to move away and defendant
4 Pursuant to People v. West (1970) 3 Cal.3d 595, 613, defendant did not admit a
factual basis for his no contest pleas. This factual summary is drawn from the
presentence report created by the probation officer.
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ejaculated on her chest. Defendant then fled and was pursued by one of the victim’s
friends who was ultimately unable to detain him.
On May 19, defendant was arrested. He told officers that he had sex with the
victim a couple of months prior to his arrest. He also told officers that, on May 17, the
victim orally copulated him, he paid her $20, and then left.
Officers searched defendant’s cellular phone and discovered a video from March 8
depicting defendant giving directions to the victim as she orally copulated him.
DISCUSSION
I. Romero Motion
Defendant contends that the trial court abused its discretion in denying his Romero
motion to dismiss his prior strike conviction because his prior strike conviction was
remote in time, he suffered only two felony convictions after his strike conviction, he
lived a “crime-free life after his release from custody in 2000,” and he suffered from an
untreated substance abuse disorder. The People disagree, as do we.
A. Background
Defendant filed a Romero motion, arguing that the prior strike conviction should
be dismissed because the current offense was “relatively minor,” the prior strike
conviction occurred in 1991—nearly 28 years before the charged offenses—and was
therefore remote in time, the nature and circumstances of the prior offense were
mitigating, defendant’s criminality resulted from his substance abuse disorder, and
circumstances in mitigation of the present offense existed under rule 4.423 of the
California Rules of Court. The prosecutor opposed that motion.
The trial court heard argument on the Romero motion. Defendant acknowledged
in his argument that the present offense was not “relatively minor.” In addition to the
reasons presented in the written motion, defense counsel argued that defendant
acknowledged his involvement at an early stage. The prosecutor argued the prior strike
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should not be dismissed because the present offense was serious, defendant did not
present any facts regarding the circumstances of the prior strike offense, and defendant
violated probation on the prior strike conviction by committing a new offense.
The trial court denied the Romero motion. It noted that, “although the robbery
strike [was] aged, … [defendant committed more offenses] shortly thereafter[,]” and
committed the present serious offense.
B. Analysis
Section 1385 empowers a trial court to “order an action to be dismissed” in
furtherance of justice, on its own or the prosecution’s motion. (§ 1385, subd. (a).) Our
Supreme Court held in Romero, supra, 13 Cal.4th 497, that a trial court has discretion
under section 1385 to dismiss a prior strike when the court finds a defendant falls outside
the spirit of the Three Strikes law. (Romero, at pp. 529–530.) In deciding whether to
exercise this discretion, the court “must consider 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.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); accord, People v.
Johnson (2015) 61 Cal.4th 674, 688–689.)
A trial court’s “refusal or failure to dismiss or strike a prior conviction allegation
under section 1385 is subject to review for abuse of discretion.” (People v. Carmony
(2004) 33 Cal.4th 367, 375 (Carmony).) “[A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (Id. at p. 377.) The Three Strikes law establishes that not striking a prior strike is the
norm, and there is a “strong presumption that any sentence that conforms to the[ ]
sentencing norm[ ] is both rational and proper.” (Id. at p. 378.) “Where the record is
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silent [citation] or ‘[w]here the record demonstrates that the trial court balanced the
relevant factors and reached an impartial decision in conformity with the spirit of the
law,’ ” we are required to affirm the trial court’s ruling, “ ‘even if we might have ruled
differently in the first instance.’ ” (Ibid.)
Here, the trial court’s decision was not “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
Defendant’s arguments do not convince us to the contrary.
First, despite defendant’s argument to the contrary, his criminal history was
serious and did not weigh in favor of his Romero motion. (Williams, supra, 17 Cal.4th at
p. 161.) Defendant’s criminal history included at least four felony offenses between 1991
and 1995: a 1991 strike conviction for robbery, (§ 211), 1993 convictions in Kentucky
for assault causing extreme emotional distress and wanton endangerment, and a 1995
conviction for burglary. Further, defendant violated felony probation granted on the 1991
robbery conviction by committing the new offenses in 1993. His criminal history was
significant, included a violent offense, and suggested he was a risk to the community. In
short, defendant’s criminal history did not suggest he fell outside the spirit of the Three
Strikes law.
Second, the fact that defendant’s prior strike conviction occurred roughly 28 years
prior to his sentencing in this matter does not undermine our conclusion. “In determining
whether a prior conviction is remote, the trial court should not simply consult the
Gregorian calendar with blinders on.” (People v. Humphrey (1997) 58 Cal.App.4th 809,
813 (Humphrey); see People v. Solis (2015) 232 Cal.App.4th 1108, 1124 [a prior strike
conviction is not properly stricken merely because it is 30 years old].) “To be sure, a
prior conviction may be stricken if it is remote in time. In criminal law parlance, this is
sometimes referred to as ‘washing out.’ [Citations.] The phrase is apt because it carries
the connotation of a crime-free cleansing period of rehabilitation after a defendant has
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had the opportunity to reflect upon the error of his or her ways.” (Humphrey, at p. 813.)
Here, as noted, defendant did not live a “ ‘legally blameless life’ ” after his 1991 strike
prior—he was convicted of a felony offense while on probation in 1993, then committed
another felony offense when he was released from custody. Although defendant’s prior
strike was aged and defendant was convicted of no crimes between his release from
custody in 2000 and his conviction for the present offense, the remoteness in time of the
prior strike, standing alone, was not so significant that defendant necessarily fell outside
the spirit of the Three Strikes law.
Third, defendant contends that the trial court gave inadequate weight to his
substance abuse history as a mitigating factor. We disagree. The trial court stated that it
read defendant’s motion, which identified defendant’s substance abuse as a cause of his
criminality and a reason to strike his prior strike conviction. The trial court also reviewed
the presentence report, which detailed defendant’s substance abuse history—defendant
used alcohol and marijuana daily, methamphetamine for a one-week binge every month,
and cocaine, Vicodin, and Norco sporadically. Despite his long substance abuse
history—predating his 1991 strike conviction—defendant had never participated in any
treatment. Defendant’s nearly lifelong history of untreated substance abuse did not
necessarily weigh in favor of striking his prior strike conviction. (Carmony, supra, 33
Cal.4th at pp. 378–379 [the defendant’s unaddressed substance abuse problem weighed
against striking his prior strike conviction].) We cannot conclude that the trial court’s
refusal to strike defendant’s prior strike conviction on that basis was irrational or
arbitrary.
Fourth, the nature of the present offenses was very serious. Defendant sexually
assaulted the homeless victim on two separate occasions. In both assaults, defendant
used a knife, and in one of those assaults, defendant cut the victim. Defendant engaged
in serious and dangerous crimes that are not outside the spirit of the Three Strikes law.
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Moreover, defendant had committed violent offenses in the past—he was previously
convicted of an assault offense, suggesting “ ‘that [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.’ ” (Williams, supra, 17 Cal.4th at p. 163.) The
nature and circumstances of the present offense weighed against striking defendant’s
prior strike conviction because they did not suggest a minor stumble in an otherwise
rehabilitated and crime-free life. (Humphrey, supra, 58 Cal.App.4th at p. 813.) As the
trial court emphasized, the seriousness of the present offenses weighed against striking
defendant’s prior strike conviction.
On the record before us, the trial court’s determination that the prior strike did not
fall outside of the spirit of the Three Strikes law was not irrational or arbitrary and
therefore did not constitute an abuse of discretion.
DISPOSITION
The judgment is affirmed.
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