P. v. Garner

Filed 3/15/07 P. v. Garner CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.

Following a bench trial, the court found Edward Garner guilty of selling cocaine base and possessing cocaine base for sale. (Health & Saf. Code,  11352, subd. (a), 11351.5.) Garner also admitted one prior strike conviction and eight prior prison terms. (Pen. Code,  667, subds. (b)-(i), 668, 1170.12, 667.5, subd. (b).) Garner moved to dismiss the prior strike, but the court denied the motion. The court imposed a nine-year sentence, consisting of the low three-year term on the cocaine sale count, doubled to six years based on the prior strike, plus one year each for the sixth, seventh, and eighth prison priors. The court struck each of the one-year terms for the first five prison priors, and stayed the sentence for the cocaine possession count under Penal Code section 654.

Garner's sole contention on appeal is that the court abused its discretion in failing to strike his prior strike conviction. We determine this contention is without merit and affirm.

FACTUAL SUMMARY

An undercover police detective approached Garner and another male, and asked Garner if he had any narcotics for sale. Garner answered affirmatively and the detective gave Garner a prerecorded $20 bill. Garner placed an off-white substance in the detective's hand, which was later determined to be .07 grams of cocaine, a usable amount. After Garner walked away, the detective gave a predetermined bust signal. Another officer approached Garner, and handcuffed and searched him. Garner still had the prerecorded $20 bill in his hand. Based on these facts, the court found Garner guilty of selling cocaine base and possessing cocaine for sale.

Before the sentencing hearing, Garner moved to strike his previous strike, which was a 1983 robbery conviction. According to the probation report, Garner and his accomplice planned and then carried out this robbery by forcibly taking money from a cash register at a commercial establishment. Since that time, Garner has been convicted of numerous offenses, including petty theft with a prior in 1986 and 1987, possession of a controlled substance in 1989, selling fake narcotics in 1990, unlawful driving or taking a vehicle in 1994, possession of a controlled substance in 1997, and selling .17 grams of cocaine base in 2003. Those crimes resulted in at least eight separate prison terms. Garner committed most of these crimes while on probation for previous crimes. At the time of the current offense, Garner was on parole but had failed to report to his parole agent. Three years earlier, he had been convicted of selling cocaine and the court had granted his motion to strike the strike prior.

Despite his lengthy 26-year criminal history and his failure to remain crime-free for more than a brief period, Garner's counsel urged the court to strike the strike because of the remoteness of the strike prior and the minimal quantity of drugs involved in the current offense. Defense counsel also emphasized that Garner did not have a history of violence and that the current crime was victimless "where consenting adults are routinely using and abusing controlled substances."

At the sentencing hearing, Garner and his girlfriend spoke in support of his motion to strike. Garner stated that he realized what he did was wrong and intended to "to go into a treatment program to get help for myself . . . ." Garner's girlfriend stated that Garner does well when he is working, but he has "the disease of addiction" and although he may be a "career criminal," prison "is not helping him."

Based on these facts, Garner's counsel requested that the court "grant leniency" to Garner. She acknowledged that Garner has "a revolving-door record," but emphasized that he does not have a history of violence and asked the court "to take this case in perspective in terms of the overall drug war and where Mr. Garner fits into . . . the hierarchy of the drug-dealing food chain."

The court denied the motion to strike, explaining that although the drug transaction involved a minimal amount of drugs, and that the crime appeared to be a "spur-of-the-moment act" rather than premeditated conduct, Garner is a career criminal. The court stated that: "Garner's record is one of a habitual violator of the law. He commits a crime[,] is caught for a crime[,] . . . gets prosecuted, goes to prison, gets out, violates his parole, usually by committing a new crime, picks up a new conviction, goes back in, gets out, and repeats the thing eight times. . . ." The court noted that Garner's prior strike conviction was a crime of violence, even if Garner did not occupy the leadership role in committing the crime. The court also observed that although Garner is a drug addict, he has elected not to rehabilitate himself during his numerous prison terms.

Based on Garner's record and his repeated refusal to curtail his criminal activities, the trial court concluded there was no reasonable basis to strike the strike. However, the court found it appropriate to impose the lower term because of the minimal quantity of drugs involved, and the court agreed to strike five of the prison priors.

DISCUSSION

Garner contends the court abused its discretion in refusing to strike the strike.

A trial court has the discretion to strike a prior strike only if the defendant falls outside the spirit of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 158-161; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In exercising this discretion, the court "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." (People v. Williams, supra, 17 Cal.4th at p. 161; see People v. Garcia (1999) 20 Cal.4th 490, 500.) The trial court's refusal to strike "is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.)

In examining a defendant's argument that the court abused its discretion, we are "guided by two fundamental precepts. First, ' "[t]he burden is on [the defendant] 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 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.)

"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." (People v. Myers (1999) 69 Cal.App.4th 305, 310; People v. Bishop (1997) 56 Cal.App.4th 1245, 1249-1250.)

Under these principles, we find no abuse of discretion. The court carefully examined all the relevant factors. The court expressly considered several facts supporting the motion to strike Garner's prior strike, including that the current offense was "de minimis" and did not involve the sale of a large quantity of drugs, and the fact that the conviction underlying the strike occurred many years earlier and Garner did not occupy a leadership role in this crime. However, the court expressly found that in light of Garner's criminal history, his character and future prospects, Garner was not outside the spirit of the three strikes law. (See People v. Williams, supra, 17 Cal.4th at p. 161.)

This record shows the court was affirmatively aware of its discretion and exercised this discretion in a reasonable manner. The court gave serious consideration to all the relevant circumstances and reached an impartial decision in conformity with the applicable legal principles. There was no abuse of discretion.

DISPOSITION

Judgment affirmed.

HALLER, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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