P. v. Acayan

Filed 6/6/07 P. v. Acayan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.

Shawn R. Perez, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lilia E. Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Noel Tabudlong Acayan appeals as an abuse of discretion the trial courts denial of his Romero^[1]motion to dismiss a prior strike conviction. We will affirm.

FACTS AND PROCEDURAL HISTORY

On July 19, 2005, during a lawful search of a house where defendant and a number of other people were using illegal drugs, Riverside County Sheriffs deputies discovered a usable amount of methamphetamine in defendants pocket. On December 15, 2005, a jury convicted him of possession of and being under the influence of a controlled substance. (Health & Saf. Code, 11377, subd. (a) [a felony] & 11550, subd. (a) [a misdemeanor].) After the verdicts were announced, defendant admitted to having suffered a prior strike and to not having remained free of prison for five years following his release. (Pen. Code, 459, 667.5, subd. (b), 667, subds. (c), (e)(1) & 1170.12, subd. (c)(1).)^[2]

Probation Officer Lori Wilson submitted a report to the trial court on January 19, 2006. Wilsons report documented defendants criminal record, which had begun in 1994 and included two car thefts (Veh. Code, 10851); public fighting and failure to appear (Pen. Code, 415, subd. (1) & 853.7); first and second degree burglaries (Pen. Code, 459); marijuana possession (Health & Saf. Code,  11357, subd. (b)); and driving without a license and failure to appear on the matter (Veh. Code, 12500, subd. (a) & 40508, subd. (a)). Defendants arrest on the current charges represented his third parole violation related to the 2002 burglary convictions. He had served one month for each of the first two parole violations and had been arrested for the current offense three months after his latest release. Parole agent Bert Anderson explained to Wilson that defendants progress had been unsatisfactory: He had eight violations for use of methamphetamine, failure to follow directives, and possession of a knife. Defendant told Wilson that he wanted help with his drug problem, but felt that he had already served time for his strike conviction.

Because of the strike, defendant was ineligible for probation. ( 1170.12, subd. (a)(2) & 667.5, subd. (c)(21).) As circumstances in aggravation, the report listed the following: the manner in which the crime was carried out indicated planning, sophistication, or professionalism; defendants prior convictions were numerous and of increasing seriousness; he had served a prior prison term; he was on parole when the current crime was committed; and his prior performance on parole was unsatisfactory. (Cal. Rules of Court, rule 4.421.) There were no circumstances in mitigation and the middle term of imprisonment was justified.

At the sentencing hearing on February 17, 2006, the court indicated that it had read and considered the probation report as well as defendants motion to dismiss the strike and the prison prior, and the district attorneys response in opposition to the motion. The court also listened to extensive argument from defense counsel regarding both his motion and the selection of defendants sentence. Counsel insisted that the trial had been about sentencing and nothing else, that the amount of drugs involved was absolutely minute, and that it would not further societal interest to send defendant to prison for four or five years when what he really needed was drug treatment.

In response to the assertion that the trial was only about sentencing and nothing else, the court said, You know, I dont understand what that means. Defense counsel explained that defendant had originally intended to plead and went to trial only in order to be able to bring a Romero motion to dismiss his prior strike. After counsels explanation, the court confirmed its understanding: [Y]oure saying you had the trial, so you could bring the motion. . . . [] All right. The court did not disagree regarding the small amount of drugs in the current case or defendants need for treatment. I dont have a problem with that. . . . The problem I have is its a drug house. Hes at the drug house. . . . [] Thats -- That is the real problem . . . he put himself in a drug house. Defense counsel advised the court to [f]orget about his past, reiterating that the amount of drugs involved was small and suggesting that defendants behavior really only amounted to a misdemeanor. As counsel saw it, the problem was that his behavior is coming back -- or the priors are coming back to take it out of that realm. That defendant was caught in a drug house, counsel argued, was irrelevant. He considered the case a classic Romero and the doubled sentence and limits on available credits absolutely excessive. The prosecutor explained the Peoples view of a Romero motion, pointing out that the Legislature intended the Three Strikes law for offenders just like defendant: those who had been convicted of a serious or violent felony in the past and a subsequent felony, whether or not the most recent offense was itself serious or violent.

Explaining its decision to deny the motion, the court said, I cannot say that I find good cause to grant the motion to strike the strike based upon his past history. The probation report shows that on 9-5-02 he was sentenced to 24 months in prison. He was paroled less than a year later, and that parole was revoked less than a year later. He was paroled again a month later, and again his parole was revoked. So he doesnt do very well on parole. Further, Hes had eight violations for the use of methamphetamine, fails to follow directives, possession of a knife. I just -- Hes not getting the picture. And so what else is there to do but give him a longer period of time to prison and reflect upon his conduct?

As to term selection, defense counsel disputed the probation reports conclusions that the current crime involved planning and sophistication, and that defendants crimes were numerous and increasing in seriousness. In mitigation, counsel suggested that defendant had admitted culpability at an early stage of the proceedings and that his crimes were in fact decreasing in seriousness. Insofar as the priors were used to enhance defendants sentence, they should not be used to select an aggravated term. The court agreed (as did the prosecution) that the current crime did not indicate planning or sophistication and that factors which subjected defendant to an enhancement should not also be used to select an aggravated term.

The court also agreed that the low term was appropriate under the facts of the case. After an interlude of considerable confusion regarding the mathematics, it sentenced defendant to a total of three years eight months in state prison: The low term of 16 months for the drug possession, doubled because of the strike, plus one year for the prison prior.

DISCUSSION

Defendant argues that the trial courts confusion regarding the procedure for bringing a Romero motion and sentence calculation means that it did not understand its discretion to dismiss prior convictions or the factors that should be considered in making an informed decision under the Three Strikes law. We disagree.

Sections 667 and 1385 and the Standard of Review:

Section 667, the Three Strikes law, was enacted by the California Legislature to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses. ( 667, subd. (b).) The purpose of a recidivist statute . . . [is] to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that persons most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. (Rummel v. Estelle (1980) 445 U.S. 263, 284-285 (Estelle), cited with approval in Ewing v. California (2003) 538 U.S. 11, 27 (Ewing).)

A trial court has discretion to dismiss a prior strike conviction under section 1385, only if it finds, 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 schemes 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; Romero, supra, 13 Cal.4th at pp. 530-531.) We review the exercise of this discretion for abuse. The issue is whether the decision is so irrational or arbitrary as to fall outside the bounds of reason. (People v. Carmony (2004) 33 Cal.4th 367, 376-377; People v. Williams, supra, at p. 162.) The party objecting to the sentence has the burden of proof. (People v. Carmony, supra, at p. 377.)

Analysis:

In this case, neither defendant nor his attorney appeared to understand the purpose or the effect of Californias Three Strikes law. Defendant felt that he had already served the time for his strike conviction. His attorney argued that because the amount of drug involved in his most recent offense was small, the doubling of his sentence under the statute was absolutely excessive. But the purpose of the statute is not to make a defendant serve time for the prior offense; nor is the length of the sentence for the recidivist to be determined only by the specific nature of his most recent offense. The purpose of the statute is to punish the defendant for his recidivist behavior and its effect is to segregate [him] from the rest of society for an extended period of time. (Estelle, supra,445 U.S. at p. 284.)

In Ewing, the recidivist defendants most recent crime involved the theft of three golf clubs. (Ewing, supra, 538 U.S. at pp. 17-18.) In Estelle, the defendants most recent crime involved passing a forged check for $120.75. (Estelle, supra, 445 U.S. at p. 266.) In both cases, the Supreme Court affirmed life imprisonment sentences, pointing out that recidivists are punished not only for their most recent crimes, but for their chronic inability to bring their conduct into line with the norms of the societies in their respective states. (Ewing, supra, at pp. 30-31 [California]; Estelle, supra, at p. 284 [Texas].) In short, defendant was not sentenced to a longer term for the 2002 burglary, nor was his sentence doubled because he had been caught with a small amount of methamphetamine. He was sentenced because he had demonstrated that he was chronically unable to bring his conduct into line with the norms of the society of this state.

Nor, as defendant suggests, did the trial court misunderstand its discretion. The record here shows that the court did require explanation from counsel regarding the timing of the motion and exactly how to double a term under the Three Strikes law, as well as some assistance in calculating the exact number of months in the appropriate sentence. But there is nothing to suggest that the court did not understand that it had discretion to dismiss defendants priors or the correct legal principles to use in making a decision to grant or deny his motion. The court explicitly considered defendants present crime (still another felony committed shortly after a release from prison), his prior serious convictions (residential burglary), the particulars of his background (a criminal record involving multiple felonies and parole violations), his character (he voluntarily chose to go to a drug house), and prospects (he was still using drugs and his past performance on parole demonstrated that his prospects for doing better in the future were poor). As the court succinctly put it, defendant was just not getting the picture.

Whatever unfamiliarity it may have had with the process or with the math, the courts decision to deny defendants motion to dismiss his prior offenses for sentencing purposes was not arbitrary or irrational. There was, therefore, no abuse of discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

RICHLI

J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1]People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).

^[2] All further statutory references are to the Penal Code unless otherwise indicated.