P. v. Towne

Filed 5/17/04 P. v. Towne CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication
or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAWN TOWNE,
Defendant and Appellant.
B166312
(Los Angeles County
Super. Ct. No. PA040926)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Meredith C. Taylor, Judge. Affirmed.
Jonathan B. Steiner and Suzan E. Hier, under appointments by the Court of
Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and
Respondent.

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Shawn Towne appeals from judgment entered following a jury trial in
which he was convicted of one count of the unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a)) and his admission of a prior conviction
within the meaning of Penal Code section 666.5, a serious or violent felony
conviction within the meaning of Penal Code sections 667, subdivisions (b)
through (i) and 1170.12, subdivisions (a) through (d), a prior conviction for a
serious felony within the meaning of Penal Code section 667, subdivisions (a)(1),
and two prior prison terms within the meaning of Penal Code section 667.5,
subdivision (b). Sentenced to prison for eight years, he contends the trial court
abused its discretion by imposing the upper term and doubling it after refusing to
grant his Romero1
motion. For reasons explained in the opinion, we affirm the
judgment.
FACTUAL AND PROCEDURAL SUMMARY
In the evening on March 31, 2002, Noe Arana went out with a friend to a
club in West Hollywood. After leaving the club, he met appellant on a street
corner and they agreed “to hook up or something.” Appellant entered Arana’s car
and they drove to different locations, looking for a room. After a while, appellant
appeared to be falling asleep, and Arana decided to drive back to the valley, an
area with which he was more familiar, to get a motel room. Arana drove to an
area off the 210 Freeway, where he stopped the car and tapped appellant on the
shoulder. Arana testified appellant “just went crazy” when Arana asked appellant
what was wrong and “Are we still up for it?” The two men punched each other
and struggled, falling to the ground outside of the car. Arana did not know how
his windshield got cracked and testified he was “freaked out” and afraid. He
claimed appellant took Arana’s car keys and threatened to take his car and his
1
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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possessions. After tying up Arana, appellant drove dangerously and erratically
and demanded money. Arana had only $40 or $50 dollars and told appellant to
take what he wanted. Arana escaped hours later and ran toward condominiums,
where he told people he had been kidnapped, that his car had been stolen and to
call the police.
On April 1, at approximately 10:15 a.m., Los Angeles Police Officer
Paul Lopez responded to a stolen vehicle tracking system alert and pulled over
Arana’s vehicle, being driven by appellant. Appellant got out of the vehicle, put
his hands in the air and said, “This car is stolen. I had nothing to do with it, but
my friend stole it.” After police officers took appellant into custody and told him
why he was being detained, appellant stated, “This car is a friend’s. I’m going to
meet him right now in the valley. Some guy beat me up this morning in the car in
Orange County, and I’m going to the nearest police station to report that some
guy beat me up. I’m the victim here.”
Appellant testified in his own defense that he is a prostitute and was
working the evening of March 31. At approximately midnight, Arana was
driving down the street and picked up appellant. They agreed to have sex and get
a hotel room. They drove around for hours and appellant fell asleep. He woke up
with Arana on top of him, strangling him with a cell phone cord. Arana
apologized and appellant agreed to get back in the car as long as Arana agreed to
have his hands tied up. Arana said he didn’t mean to try to kill appellant and
needed help. He offered to pay appellant $400 not to report the incident to the
police and gave appellant two credit cards and the PIN for them. Appellant went
into a 7-11 store and left Arana in the car. When appellant looked back, he saw
that Arana was no longer in the car. Appellant eventually drove the car home.
Thereafter, he telephoned the registered owner of the car and was in the process
of driving the car back to the valley when he was arrested.

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While appellant was found guilty of the unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a)), he was found not guilty of carjacking
(Pen. Code, § 215, subd. (a)), kidnapping (Pen. Code, § 207, subd. (a)), second
degree robbery (Pen. Code, § 211), grand theft auto (Pen. Code, § 487, subd. (d)),
criminal threats (Pen. Code, § 422), kidnapping for carjacking (Pen. Code,
§ 209.5, subd. (a)), and kidnapping to commit robbery (Pen. Code, § 209,
subd. (b)(1)).
At sentencing, the court denied appellant’s motion to declare the offense a
misdemeanor, finding that it was appropriate that the matter be before the court as
a felony. The court stated further, “With respect to striking the strike, the strikes
date from ’95; and he’s had a number of other adverse encounters . . . with law
enforcement since then. [¶] In ’96, felony joyriding; in ’99 prostitution related
type matters; and 2000 grand theft auto and Penal Code 69 [obstructing or
resisting officers in performance of their duties]. [¶] I don’t believe it would be
an appropriate exercise of discretion to strike the strike.” The court stated while it
did not believe all of the victim’s testimony or all of appellant’s testimony, it did
believe the testimony of two witnesses that after Arana ran from the car, he was
significantly terrified and afraid for his own physical well being. The court stated
it believed the victim left the car thinking if he did not he would be killed. The
court observed it did not consider the crime to be “just a simple 10851(a) as [it
had] just described . . . and that it’s an aggravated situation based on what [the
court had] just described.”
The court determined it was not appropriate to give appellant the low or
middle term in that he had a “ten year history” before this case. Addressing
appellant, the court observed “you are an innocent of sorts; that you don’t seem
despite all of this contact with law enforcement and the court system to learn
what punishment is and what it means. [¶] Here you are. You’re back again. [¶]
So the court is considering the trial as it took place before the court, the

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conviction on the 10851(a), the fact that you have a lengthy history in choosing
the high term of four years; and the high term is because the 10851 (a) is alleged
pursuant to . . . Penal Code 666.5.” With regard to the state prison priors, the
court noted the number of times appellant had been to state prison made him a
recidivist but that based on the circumstances before the court, his history, his
nature, the sentence he would serve and the fact that he would be doing
80 percent of the time imposed, it was appropriate to strike the state prison priors,
also “recognizing that one of them constitutes the same conviction on which
[appellant was] getting the strike time.”
DISCUSSION
Appellant contends the trial court abused its discretion by refusing to strike
the “strike,” his 1995 robbery conviction.
Respondent argues that appellant’s contention must be summarily rejected
as appellate review is not available. We reject the People’s assertion and review
the court’s exercise of discretion under Romero. (People v. Myers (1999) 69
Cal.App.4th 305, 309-310.)
We “review rulings on motions to strike prior convictions when the issue is
raised under the deferential abuse of discretion standard. Under that standard an
appellant who seeks reversal must demonstrate that the trial court’s decision was
irrational or arbitrary. It is not enough to show that reasonable people might
disagree about whether to strike one or more of his prior convictions. Where 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.]” (People v. Myers, supra, 69 Cal.App.4th 305, 309-310.)
“[We] must consider whether, in light of the nature and circumstances of
his present felonies and prior serious and/or violent felony convictions, and the

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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.)
The record establishes the court considered all of the relevant
circumstances and properly exercised its discretion by refusing to strike
appellant’s prior conviction. (People v. Gaston (1999) 74 Cal.App.4th 310, 320-
321; People v. Myers, supra, 69 Cal.App.4th at p. 310; People v. Cline (1998) 60
Cal.App.4th 1327, 1337.)2
Additionally, the trial court did not abuse its discretion by imposing the
upper term. Contrary to appellant’s claim, the jury’s necessary findings on the
acquitted counts did not conflict with the court’s findings. The court was well
aware of the jury’s findings, acknowledged the victim lied and observed that the
jury had been able to weigh the evidence and make credibility findings in
reaching its verdicts. Moreover, even if there had been error, it would have been
harmless. “A single factor in aggravation will support imposition of an upper
term. [Citation.] ‘When a trial court has given both proper and improper reasons
for a sentence choice, a reviewing court will set aside the sentence only if it is
reasonably probable that the trial court would have chosen a lesser sentence had
it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz
(1995) 38 Cal.App.4th 427, 433-434.)3
2
The court’s misstatement that appellant had a 2000 conviction for grand theft
auto rather than a conviction for resisting an officer in violation of Penal Code section
69 does not diminish the court’s finding that appellant had a lengthy criminal history.
3
Further, the trial court could have used as reasons that appellant had served prior
prison terms, his prior performance on probation or parole was unsatisfactory and that
he was on parole at the time of the current offense. (See People v. Steele (2000) 83
Cal.App.4th 212, 227.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURRY, J.
We concur:
EPSTEIN, Acting P.J.
HASTINGS, J.

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