People v. Winn CA3

Filed 8/11/15 P. v. Winn CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C077294

Plaintiff and Respondent, (Super. Ct. No. 14F00139)

v.

CLIFFORD WINN,

Defendant and Appellant.

Defendant Clifford Winn contends the trial court abused its discretion by denying his request to strike a prior strike. (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)1 We affirm.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND An amended felony complaint deemed an information charged defendant with inflicting corporal injury resulting in a traumatic condition upon cohabitant V. Doe (§ 273.5, subd. (a)) and alleged a 1998 prior felony conviction for assault with a deadly weapon (§ 245, subd. (a)(2)), which constituted a strike (§§ 667, subds. (b)-(i), 1170.12). Defendant entered an open plea of no contest to infliction of corporal injury upon V. Doe and admitted the prior felony conviction. The factual basis for the plea was as follows: On or about January 5, 2014, after defendant and the victim got into a verbal altercation, defendant strangled her to the point that her eyes became bloodshot and she suffered soreness in her neck that lasted over a month. On May 29, 1998, defendant was convicted in Sacramento County Superior Court of assault with a deadly weapon. The trial court referred the matter to probation. Defense counsel indicated that he might file a request to strike defendant’s prior strike. The probation report recommended an upper-term sentence of four years, doubled for the strike. The report recommended the upper term because defendant was on parole when he committed the crime (Cal. Rules of Court, rule 4.421(b)(4))2 and had engaged in violent conduct, which indicated a serious danger to society (rule 4.421(b)(1)). The report also stated as circumstances in aggravation that defendant’s crime involved great violence, great bodily harm, the threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(1)); he had served a prior prison term (rule 4.421(b)(3)); and his prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)). The report found no circumstances in mitigation. According to the police report as summarized in the probation report, the victim stated that defendant woke her up around 2:00 a.m., accusing her of cheating on him; the