P. v. Briggs
Filed 9/4/07 P. v. Briggs CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. RALPH E. BRIGGS, Defendant and Appellant. | D049715 (Super. Ct. No. SCD196224) |
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
Ralph E. Briggs pleaded guilty to possessing an assault weapon (Pen. Code,[1] 12280, subd. (b)) (count 2), and selling cocaine (Health & Saf. Code, 11352, subd. (a)) (count 3). He also admitted one strike ( 667, subds. (b)-(i)).[2] The court dismissed the strike as to count 2 only and sentenced him to six years eight months in prison: six years (one-third the lower term, doubled) for selling cocaine and eight months (one-third the middle term) for possessing an assault weapon. Briggs appeals, contending the court abused its discretion by denying his motion to dismiss his strike as to count 3. We affirm.
BACKGROUND
On September 2, 2005, the Drug Enforcement Administration (DEA) conducted a controlled buy of cocaine through a confidential source (CS). The CS went to Briggs's house, Briggs answered the door and asked the CS what he wanted. The CS said he wanted one-half ounce of cocaine and asked the price. Briggs responded, "$300." He retrieved a substance containing 6.3 grams of pure cocaine from the freezer and placed it in a bag. The CS placed $300 on the kitchen table and Briggs handed him the cocaine.
On January 17, 2006, a search of Briggs's home pursuant to a warrant yielded an AK-47 with three loaded clips and a bag with additional rounds, all in his bedroom closet. Briggs was advised of his rights and agreed to speak with DEA agents. He "admitted he occasionally sold ounce quantities of cocaine" and named his supplier. He said he had bought the AK-47 years ago, had never fired it, and was not sure how to operate it.
DISCUSSION
Briggs argues his offenses, background, and character place him outside the spirit of the three strikes law. He claims his strike prior was remote and he was crime-free, employed and a productive member of the community for 17 years.
Section 1385 gives the trial court power to dismiss a strike on its own motion in the interests of justice. (People v. Superior Court (1996) 13 Cal.4th 497.) (Romero) It must consider society's interests as well as the defendant's constitutional rights. (Id. at p. 530, quoting People v. Orin (1975) 13 Cal.3d 937, 947.) It must not take into account matters extrinsic to the sentencing scheme, such as a desire to ease court congestion or "bare antipathy to the consequences for any given defendant." (People v. Williams (1998) 17 Cal.4th 148, 161.) In sum, it "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." (Ibid.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367.)
Briggs's strike was based on a 1981 robbery conviction ( 211) he suffered when he was 19 years old. In 1982, he was placed on three years' probation for that conviction. He served 180 days in local custody. His probation was apparently never revoked.
At the time of the instant offense, Briggs had been in a relationship for 20 years and had a 10-year-old son from that relationship. He coached Little League baseball and Pop Warner football and was responsible for maintaining a neighborhood baseball field. He had been employed by the City of San Diego for 17 years. At sentencing, he submitted numerous character reference letters.
Briggs did not remain crime-free during the interim, however. (People v.Williams, supra, 17 Cal.4th 148, 163; People v. Humphrey (1997) 58 Cal.App.4th 809, 813; People v. Gaston (1999) 74 Cal.App.4th 310, 320-322.) In 1989, he pleaded guilty to misdemeanor possession of concentrated cannabis (Health & Saf. Code, 11357, subd. (a)) and was placed on three years' summary probation, which was apparently never revoked. He served 60 days in local custody. As the trial court noted, the instant offenses possessing an assault weapon and dealing large amounts of cocaine had a serious impact on the community and had the potential for violence.
The court did not abuse its discretion by denying the motion to dismiss the strike as to count 3. (People v. Carmony, supra, 33 Cal.4th at p. 374.)
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] The plea bargain provided the sentence would be not more than six years eight months and the court would consider dismissing the strike.
