P. v. Budinich

Filed 10/13/06 P. v. Budinich CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Horan, Judge. Affirmed.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Paul Joseph Budinich appeals from the judgment entered following his convictions by jury on count 1- possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and count 2 - possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)), having suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), and two prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced him to prison for six years.

In this case, we hold the trial court properly refused to strike, pursuant to Penal Code section 1385, appellant’s Three Strikes law prior felony conviction. In light of the nature and circumstances of appellant’s current felony offense and the qualifying prior conviction (a 1993 conviction for involuntary manslaughter), and in light of the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the prior conviction. Therefore, the trial court did not abuse its discretion by refusing to strike the prior conviction.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on March 16, 2005, La Verne police officers found appellant in possession of .19 grams of methamphetamine. Appellant also possessed a glass pipe used to smoke substances such as methamphetamine. There was evidence of prior use of the pipe. Appellant admitted to police that the methamphetamine was his, and that he had used methamphetamine for about 12 years. Appellant had three outstanding arrest warrants. He presented no defense evidence.

CONTENTION

Appellant contends the trial court erroneously denied his motion to strike his Three Strikes law prior felony conviction.

DISCUSSION

The Trial Court Properly Denied Appellant’s Motion to Strike the Prior Felony Conviction.

1. Pertinent Facts.

A preconviction probation report prepared for a May 2005 hearing reflects as follows. Appellant was born in February 1961 and had two aliases. In 1989, appellant suffered a conviction for reckless driving and the court placed him on summary probation for three years. In May 1993, appellant suffered a conviction for involuntary manslaughter (case No. 32260), and the court sentenced him to prison for five years. In September 1998, appellant was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)). The court sentenced him to prison for four years. In November 2004, appellant was convicted of possession of a smoking device, and the court placed him on summary probation for one year. Police arrested appellant for the present offense on March 16, 2005.

The probation report also reflects as follows. Appellant had a significant substance abuse problem based on his criminal history. Appellant was employed as a driver, but the period of his employment was unknown. Appellant failed to cooperate with the probation department. The aggravating factors were that appellant’s prior convictions were numerous or of increasing seriousness, and he had served prior prison terms. There were no mitigating factors. The report recommended imprisonment for the “mid-base term.”

In June 2005, the jury found true that appellant suffered, pursuant to the Three Strikes law, a 1993 conviction in case No. 32260 for involuntary manslaughter (Pen. Code, § 192, subd. (b)) with firearm use (Pen. Code, § 12022.5, subd. (a)). On August 8, 2005, appellant filed a motion to strike that prior conviction pursuant to Penal Code section 1385.

In the written motion, appellant urged the following as grounds to strike the prior conviction. The prior conviction occurred in 1993. Appellant had no other serious or violent prior felony convictions. The present offenses did not involve violence, or present a serious danger to the public. The prior conviction resulted from an episode of aberrant behavior. After 1993, appellant suffered a single conviction (the 1998 conviction) “under circumstances and charges similar to this case.” Appellant had alcohol and drug abuse problems before 1998.

Appellant also provided the following information concerning the offense underlying the 1993 conviction. Appellant was living with his girlfriend Debbie Smith. The decedent, Curtis Davis, assaulted appellant and Smith on one occasion. Later, in May 1992, Davis came to appellant’s residence, appellant called the police, but officers did not respond. Appellant, afraid for the safety of himself and Smith, obtained a gun and put it in his truck. Davis reached for the gun and appellant tried to shoot him in the leg to stop him. The bullet severed an artery in Davis’s leg and he bled to death.

The People’s August 11, 2005 sentencing memorandum provided the following information in opposition to appellant’s motion to strike. Appellant’s criminal history spanned 20 years, and he had been in custody for at least 9 of the 20 years. At the time of the present offense, there was a warrant outstanding for appellant’s arrest for defrauding an innkeeper. Appellant’s drug history dated back to 1985, when he was convicted of a violation of Health and Safety Code section 11352. Following his involuntary manslaughter conviction, he was released on parole in 1996, but suffered a 1998 narcotics conviction. Appellant had not made any effort to address his substance abuse problems. He could have sought drug treatment under Proposition 36 when he suffered his 2004 conviction, but he did not. Appellant had not accomplished anything positive while on parole, and appeared to have poor prospects for the future.

At sentencing on August 19, 2005, the court indicated it had read the probation report, motion to strike, and the People’s opposition thereto. During argument, appellant and the People reiterated portions of the arguments submitted in their memoranda. The court indicated that appellant’s criminal record was not the worst that the court had seen.

The court also stated, “Well, there are a number of factors that are of interest to a court hearing a Romero motion: The nature of the prior. The facts of the case. Whether it was serious in more than just the legal sense, but whether, in fact, it was an egregious case, an aggravated matter. The nature of the new case. The time between the matters. Whether the defendant has been relatively, you know, blameless from the time the strike was suffered. Whether he’s got good prospects for the future. Whether he shows, frankly, any insight that might suggest remotely to the court that he won’t reoffend.”

The court indicated it could not say that appellant was outside the spirit of the Three Strikes law. The court also indicated as follows. The 1993 prior conviction was serious; appellant had intentionally shot Davis in the leg, and there was no showing of weapon use by Davis. The shooting occurred, not decades ago, but only 12 or 13 years ago. After appellant’s imprisonment for the 1993 conviction, he suffered 1998 convictions for which he was again sentenced to prison, and the offenses in that matter were similar to the present offenses. Appellant had no insight, had no control over his actions, did not have very good prospects, and had not worked that much. If the court granted the motion to strike, it would be an abuse of discretion and unjust.

The court sentenced appellant to prison for six years. This consisted of the two-year middle term for possession of methamphetamine (count 1), doubled to four years pursuant to the Three Strikes law, plus two one-year terms for the two Penal Code section 667.5, subdivision (b) enhancements. As to count 2, the court imposed a concurrent term in local custody with credit for time served.

2. Analysis.

The court read the probation report, appellant’s motion to strike, and the People’s opposition thereto, and heard argument from the parties. If we accepted appellant’s claims, we would be holding that the court’s denial of appellant’s request to strike the prior felony conviction was irrational, capricious, or patently absurd (People v. Delgado (1992) 10 Cal.App.4th 1837, 1845; In re Arthur C. (1985) 176 Cal.App.3d 442, 446) and without even a fairly debatable justification. (People v. Clark (1992) 3 Cal.4th 41, 111.) Based on the record in the present case, we cannot come to that conclusion. In light of the nature and circumstances of appellant’s current felony offense and the qualifying strike, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the strike, and may not be treated as though he previously had not suffered it. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161-164.)

We hold that the trial court’s order refusing to strike the Three Strikes law prior felony conviction was sound, and not an abuse of discretion. (Cf. People v. Williams, supra, 17 Cal.4th at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.) None of the cases cited by appellant, or his argument, compels a contrary conclusion.[1]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, P. J.

We concur:

CROSKEY, J. ALDRICH, J.

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[1] This includes appellant’s argument that he was cooperative with police. We also note that in the first full paragraph of page 5 of his reply brief, appellant argues the court impermissibly considered various factors during sentencing. To the extent the argument does not pertain to the motion to strike, we reject the argument because it is first raised in appellant’s reply brief. (Cf. People v. Thomas (1995) 38 Cal.App.4th 1331, 1334; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) To the extent the argument pertains to the motion to strike, we reject the argument because all of the factors except the last were discussed by the court in the context of the court’s disposition of appellant’s motion for a new trial, not the motion to strike. In any event, no error occurred.