P. v. Davis

Filed 9/27/06 P. v. Davis CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark Ashton Cope, Judge. Affirmed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Keith Lollis, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Asean Davis, Jr. (defendant) guilty of possession for sale of methamphetamine (Health & Saf. Code, § 11378, subd. (a)) and misdemeanor vandalism. (Pen. Code,^[1] § 594, subd. (b)(2).)

Prior to sentencing defendant, the trial court denied defendant’s motion to strike his prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Thereafter, the trial court sentenced defendant to a total term of nine years in state prison.

On appeal, defendant contends that the trial court abused its discretion in denying defendant’s Romero motion. For the reasons set forth below, we shall affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On the evening of August 19, 2004, Hemet Police Officer Donald Brokaw responded to a report that defendant had thrown a rock through a television set at his girlfriend’s apartment earlier that day. The victim provided the officer with defendant’s location.

Officer Brokaw located defendant standing with four males. Upon seeing the officer, defendant turned and threw what was later determined to be a small, clear bag containing nine bindles of methamphetamine. Officer Brokaw recovered the narcotics and arrested defendant.

On April 14, 2005, the Riverside County District Attorney filed an information charging defendant with possession for sale of methamphetamine under Health and Safety Code section 11378 (count 1), and with vandalism under section 594, subdivision (b)(1) (count 2). As to count 1, the information alleged that defendant had been previously convicted of possession for sale of methamphetamine. (Health & Saf. Code, § 11370.2, subd. (a).) The information also alleged that as to both counts, defendant committed the offenses while released from custody pending final judgment on another case (§ 12022.1) and had a strike prior conviction. (§§ 667, subds. (c), (e)(1) & 1170.12, subd. (c)(1).)

On December 5, 2005, after a bifurcated trial, a jury found defendant guilty on count 1 (possession for sale of methamphetamine), and on the lesser included misdemeanor of count 2 (vandalism). After a court trial, the court found true the custodial release, strike prior, and narcotics conviction allegations.

On January 20, 2006, the trial court sentenced defendant to nine years in state prison, comprised of the upper term of three years for count 1, doubled to six years for the prior strike (§ 667, subds. (c), (e)(1)), plus three years for the prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a).) The court granted defendant credit for time served on the misdemeanor in count 2.

Defendant appeals.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Failing to Strike Defendant’s Prior Strike Conviction

Defendant contends that the trial court erred in refusing to strike his prior robbery conviction in the interest of justice under section 1385.

A trial court’s decision refusing to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 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.”’ [Citation.] 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.’”’ [Citation.] 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.” (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831, and People v. Preyer (1985) 164 Cal.App.3d 568, 573; see also People v. Myers (1999) 69 Cal.App.4th 305, 309.)

The California Supreme Court explained, “In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (People v. Carmony, supra, 33 Cal.4th at p. 378, citing People v. Langevin (1984) 155 Cal.App.3d 520, 524, and People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); People v. Myers, supra, 69 Cal.App.4th at p. 310.)

But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (People v. Myers, supra, 69 Cal.App.4th at p. 310.) “Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)

The touchstone of the analysis must be “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.” (Williams, supra, 17 Cal.4th at p. 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.)

Here, at the sentencing hearing, defense counsel referred the court to the written Romero motion. Counsel requested that the court exercise its discretion to strike a prior conviction. Counsel reminded the court defendant’s prior strike occurred in 1991, when defendant was a juvenile, and his other offenses did not involve “any kind of violence.” Moreover, counsel indicated that defendant “[had] maintained a household, he [had] maintained steady employment, and he still [had] gainful employment to go back to.”

The prosecutor responded by noting that after defendant was paroled from the California Youth Authority in 1996, he did not lead a crime-free life: “[I]n ‘98, he picked up the misdemeanor conviction. In ‘99, he picked up another misdemeanor conviction for battery, and then in ‘02, a felony conviction for 11378; ‘03, he had the 496, and then ‘04, he had the conviction in the case the Court presided over.” The prosecutor then noted that “the Three-Strikes Law is all about recidivism, and [defendant] has shown that he can’t stay out of trouble, and he picked up three felony convictions or committed three felony crimes three years in a row.”

After hearing arguments of counsel, the court noted that that a “strike should only be stricken if, in practical terms, [the defendant] fall[s] outside the spirit of the Three-Strikes Law.” The court then stated, “I think it would be very difficult for me to stay that [defendant] falls outside the spirit of that law.” The court went on to note that defendant did not lead a crime-free life. The court stated: “[I]t’s clear to me that [defendant] was continually -- continuously selling controlled substances in order to support himself, and I just do not believe that he falls outside the spirit of the Three-Strikes Law.” Thereafter, the court declined to exercise its discretion to strike defendant’s prior strike conviction.

We agree with the trial court and discern no abuse of discretion. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the law.

Here, the case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Defendant has juvenile adjudications for a violent felony (robbery) and a felony (auto theft), has adult convictions for two drug-related felonies and eight misdemeanors. He repeatedly violated his probation and was awaiting sentencing on one of the felonies (receiving a stolen vehicle) when he committed the current felony.

In sum, defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) Therefore, given defendant’s continuous criminal history, the seriousness of the past offense, and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss defendant’s prior strike conviction. The trial court’s decision not to strike defendant’s prior was neither irrational nor arbitrary.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ McKINSTER

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.