Filed 7/11/17 P. v. Cross CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JEROME LEE CROSS,

Defendant and Appellant.

F073589

(Super. Ct. No. 14CM0828)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Robert Shane Burns, Judge.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Chief Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

A Kings County jury found Jerome Lee Cross guilty of felony possession of an alcoholic beverage while being held in the Kings County jail. (Pen. Code, § 4573.8.) On appeal, Cross contends the superior court abused its discretion in failing to strike a prior strike conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) and failed to fully consider his request for relief under Proposition 47. We affirm.
BACKGROUND
On the night of November 28, 2013, Kings County Sheriff’s Deputy Michael McMahon searched the cells of the Kings County jail and discovered a clear plastic sandwich sized bag containing “a thick, orange, [and] red pulp-like substance” behind the toilet in the cell occupied by Cross and his cellmate. Upon further investigation, Deputy McMahon located two more liquid-filled plastic sandwich sized bags underneath the lower bunk in the same cell.
Deputy McMahon took the bags and ordered Cross and his cellmate outside. Cross became irate and made derogatory comments.
The substance in each of the bags gave off a strong “citric, alcohol-like” odor. Based on the deputy’s experience, he believed the substance was consistent with other inmate-manufactured alcohol he had seen in the past. Deputy McMahon took photographs, collected about an ounce of the substance from each bag, and labeled them for testing.
About an hour later, the deputy asked Cross and his cellmate who would take responsibility for the liquid found in the bags; Cross responded, “ ‘I’ll take responsibility.’ ”
Toxicology testing revealed that at least one of the samples collected contained one percent alcohol and one percent ethyl alcohol of the type found in alcoholic beverages. The toxicologist referred to the substance as consistent with inmate-manufactured alcohol known as “pruno.”
The district attorney charged Cross with one felony count of unauthorized possession of alcohol in jail (§ 4573.8) along with allegations he suffered a prior strike conviction (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and served five prior prison terms (§ 667.5, subd. (b)). Cross elected to represent himself at trial. The jury found Cross guilty of the alcohol possession count and Cross admitted three of the five alleged prison priors. The trial court denied Cross’s Romero motion to strike his prior strike for sentencing purposes and sentenced him to a total of nine years, consisting of the upper term of three years, doubled due to the prior strike, plus three one-year consecutive terms for each of the admitted prison priors.
At sentencing on February 5, 2015, Cross made an oral request for relief under Proposition 47. The trial court responded that this case was not one under which the proposition applies, pursuant to section 1170.18. The trial court added that such a request had to be in writing, to which Cross responded, “it’s in already.” The trial court then denied “it orally anyway.”
On February 16, 2016, this court granted Cross habeas relief to file a belated appeal. (In re Jerome Cross (Feb. 16, 2016, F072416) [nonpub. opn.].)
DISCUSSION
Cross raises two issues on appeal. He contends the trial court abused its discretion by denying his Romero motion to strike a prior conviction in sentencing him to nine years for possessing alcohol in jail. He also contends the trial court erred in not allowing him leave to file a written motion to reduce his 1991 and 1997 drug conviction priors under Proposition 47 before sentencing him on the current offense.
I. Romero
Section 1385 provides that the trial court “may, either of his or her own motion or upon the application of the prosecuting attorney, and in the furtherance of justice, order an action to be dismissed.” In light of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12), the Supreme Court held that for purposes of sentencing, a trial court may strike an allegation or vacate a finding that a defendant has previously been convicted of a serious and/or violent felony “in furtherance of justice” under section 1385. (Romero, supra, 13 Cal.4th at p. 504; People v. Williams (1998) 17 Cal.4th 148, 151-152.)
This court reviews a trial court’s denial to dismiss or strike a prior conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-376.)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
The trial court here expressly considered Cross’s Romero motion on the record. The court noted Cross’s current offense of making pruno was no more serious than other instances of the same offense and not particularly criminally sophisticated. But in looking at Cross’s criminal history, the court found it “truly remarkable, 29 convictions over the last 26 years involving 16 felony convictions and 13 misdemeanor convictions.” The court referenced Cross’s extensive history of violence, and found his outburst and derogatory remarks to Deputy McMahon consistent with his prior conduct of stalking, making terrorist threats, threatening a public official, and assault. The court noted Cross appeared “to have a long standing substance abuse problem but obviously is not attempting to address that issue when he is actively making alcohol while confined in the jail.” The trial court was also troubled by the fact that Cross had never been successful on probation or parole, “committing new crimes while on every grant he has received.”
The trial court acknowledged Cross took responsibility for the crime, but only after being caught with the substance in his cell. After noting Cross’s lack of any meaningful or supportive family relationships, unwillingness to participate in rehabilitation, lack of employment history, poor performance on probation and parole, and his likeliness of reoffending, the trial court denied the Romero motion.
Although Cross focuses on the relatively de minimis nature of his present offense of possessing inmate-manufactured alcohol while in jail, he fails to admit that his history of criminal activity supports the trial court’s decision to deny his Romero motion. We can find no abuse of discretion.
II. Proposition 47
Cross contends the trial court abused its discretion by not affording him the opportunity to present a written petition for relief under Proposition 47 to potentially reduce his 1991 and 1997 drug-related offenses prior to sentencing.
After the trial court pronounced Cross’s sentence, custody credits, fines, and right to appeal, the following discussion occurred:
“THE DEFENDANT: And I would like to petition the Court for Prop 47, please, in this matter.
“THE COURT: This does not come under Prop 47.
“THE DEFENDANT: Under 11000, I believe.
“THE COURT: 1170.18. This section does not fall within 1170.18. It’s not an offense to which that statute applies.
“THE DEFENDANT: That might be my way to get back. All right.
“THE COURT: Okay. Hold on, I have to advise you of a couple of things. [¶] So that petition is denied. It has to be in writing anyway but I’ll deny it.
“THE DEFENDANT: Sir, it’s in already.
“THE COURT: I’ll deny it orally anyway.”
Despite Cross’s claim on appeal that the trial court abused its discretion in not permitting Cross to file a written request for Proposition 47 relief as to his 1991 and 1997 drug offenses, Cross never expressed any desire to do so. As the Attorney General points out, petitioner advised the court at sentencing that he wanted “to petition the Court for Prop 47, please, in this matter.” (Emphasis added.) Moreover, when Cross indicated his written request for Proposition 47 relief was “in already,” he presumably referenced his petition filed on December 16, 2014. That petition was filed on a San Diego Superior Court local court form (No. SDSC CRM-277), on which Cross listed the current superior court case number and checked the box indicating he intended the form to serve as a “Petition for Resentencing” under section 1170.18, subdivision (a) and not as a “Petition for Reduction to Misdemeanor” pursuant to section 1170.18, subdivision (f). Subdivision (a) of section 1170.18 applies to sentences being served as of the effective date of Proposition 47, November 5, 2014, while subdivision (f) applies retroactively to prior sentences already completed. Further, Cross listed on the petition form his recent conviction of “Penal Code 4573.8 - Possession of Drugs or Alcoholic Beverage” as the felony he wanted reduced to a misdemeanor, yet that sentence was not imposed until February 5, 2015, three months after Proposition 47’s effective date. Given Cross’s unambiguous oral request and written petition, he fails to demonstrate the trial court erred or abused its discretion in denying Proposition 47 relief or that it should have been aware he was seeking resentencing for his convictions from 1991 and 1997 that were not before the court.
DISPOSITION
The judgment is affirmed.