Filed 7/17/17 P. v. Hinton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JAMES WILLIAM HINTON,

Defendant and Appellant.
D070898



(Super. Ct. No. SCD264734)

APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
James Hinton pled guilty to one count of making or possessing a counterfeit die or apparatus (Pen. Code, § 480, subd. (a)) and one count of uttering and passing counterfeit paper (§ 648). He admitted allegations that he had one prior strike conviction (§ 1170.12, subds. (a)-(d)) and five prior convictions for which he had served a prison term (§ 667.5, subd. (b)) (prison priors). When he entered his plea, the court informed Hinton that he could receive a maximum sentence of 13 years six months. Hinton later filed a Romero motion asking the court to strike his prior strike conviction under section 1385 in the interests of justice. The prosecution filed opposition and the court denied the motion. Hinton contends the court's denial of the motion was an abuse of discretion. We affirm.
FACTUAL PROCEDURAL BACKGROUND
As the factual basis for his guilty plea, Hinton admitted he unlawfully possessed a computer program for creating counterfeit bills and unlawfully used a counterfeit bill to purchase goods. The probation report noted that in November 2015, Hinton used $300 in counterfeit notes to make a cash purchase in the amount of $215.98 at a Best Buy store, and $100 in counterfeit bills to make a $26.94 purchase at a David's Bridal store.
The probation report set forth Hinton's criminal history, including a prior strike conviction for residential burglary and convictions for possession of a controlled substance, possession of a controlled substance for sale, possession of a controlled substance in prison, possession of counterfeiting apparatus, and possession of a stolen vehicle. Hinton served five prior prison terms, having been sentenced to prison in 1995, 1998, 2004, 2011, and 2015. He was released from his fifth prison term on postrelease community supervision (PRCS) in August 2015.
Hinton tested positive for methamphetamine in October 2015 and was on PRCS when he committed the offenses in the present case. The probation officer reported that "[d]espite some compliance with his supervision conditions, [Hinton's] overall performance was poor given his drug use and new law violation." The probation officer recommended Hinton be sentenced to a prison term of 11 years, consisting of the mid-term of three years under section 480, subdivision (a), doubled for the strike, plus one year for each of the five prison priors.
In his Romero motion, Hinton argued the court should exercise its discretion to strike his prior strike because the strike offense was nonviolent and remote in time; his criminal history was the result of drug addiction and unstable mental health and was not violent; the current offense was not a serious or violent felony; he was remorseful and willing to rehabilitate himself; and punishment under the three strikes law was disproportionate to the severity of the offense.
In opposition to Hinton's motion, the prosecution argued the court should deny the motion because Hinton had been only recently released from prison when he committed his present offenses; his previous imprisonment was for counterfeiting; he was on probation when he committed the current offenses; he had a history of violating parole; he had a history of felony convictions and had been in prison for most of the time since his strike conviction in 1992; and the nature of his current counterfeiting offense showed sophistication and planning. It was argued that when Hinton "was caught doing the same thing in 2014 and given a massive break . . . [, he] immediately embarked on the exact same conduct." The prosecutor asked the court to sentence Hinton to a prison term of eight years, consisting of the mid-term of three years under section 480, subdivision (a), doubled for the strike, plus one year for each of two of the prison priors.
At the sentencing hearing, the court stated it was inclined to impose a four-year sentence by utilizing the low term under section 480, subdivision (a), and striking Hinton's five prison priors, but not his prior strike conviction. The prosecution argued that an eight-year prison term was more appropriate. The prosecutor informed the court that Hinton had been offered a plea deal after the preliminary hearing, at which the judge observed that the case against him was "extremely strong." Hinton did not accept responsibility at that point and did not plead guilty until the day of trial, after the prosecution and the Secret Service had expended considerable time and resources to prepare for trial.
Defense counsel responded that Hinton was taking three different medications for mental illness and "copes with it through methamphetamine abuse when he's outside [prison], which obviously he shouldn't do, and it leads led him to this counterfeiting criminal behavior where essentially he's sleeping on a friend's floor in a sleeping bag and making $100 bills through a printer and then returning things at stores." Counsel stated that Hinton wanted the court to know he was very interested in treatment.
The court denied Hinton's motion to strike the prior strike. Noting Hinton had numerous prior convictions and was on PRCS at the time of the current offense, the court concluded Hinton was "not a good candidate for a motion to strike a strike." However, the court struck Hinton's five prison priors under section 1385 "in furtherance of justice" and sentenced Hinton to four years, concluding that "four years[,] given all of the surrounding circumstances[,] is adequate punishment for the crime of counterfeiting[,] which did not involve acts of violence."
DISCUSSION
Hinton contends the denial of his motion to dismiss the prior strike allegation was an abuse of discretion because the court failed to consider all of the relevant factors identified by the California Supreme Court.
The trial court's power to dismiss an action in the furtherance of justice under section 1385, subdivision (a), includes the lesser power to strike allegations or vacate findings relevant to sentencing, including allegations or findings that a defendant has prior felony convictions. (People v. Williams (1998) 17 Cal.4th 148, 151 (Williams). We review a trial court's decision whether to dismiss or strike a sentencing allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-374 (Carmony).)
"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." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
In ruling whether to strike or vacate a prior conviction allegation or finding under section 1385 "or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of [the defendant's] 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 . . . spirit [of the three strikes law], 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.)
"Thus, the 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." (Carmony, supra, 33 Cal.4th at p. 378.) In light of that presumption, a trial court abuses its discretion in failing to strike a prior felony conviction allegation only in limited circumstances, such as where it was unaware of its discretion to strike the allegation, considered impermissible factors in declining to strike the conviction, or where " 'the sentencing norms [established by the three strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Ibid.)
Applying these principles, we find no abuse of discretion in the court's decision to deny Hinton's Romero motion. The court was fully aware of its discretion to strike a strike and based its decision not to do so largely on Hinton's numerous prior convictions and the fact he was on PRCS at the time of the current offense. The court's decision was reasonable in light of Hinton's record, which showed he was a career criminal.
The probation report revealed that Hinton violated probation three times, violated parole six times, and failed to appear in court eight times between 1992 and 2015. He was sentenced to eight years in prison in 2004 for possession of a controlled substance in prison and violated parole for that offense in 2011, when he was charged with burglary and receiving stolen property. In May 2013 he was charged with burglary and petty and grand theft, and in September 2013 with possession of a controlled substance. Again in August 2014 Hinton was charged with possessing a counterfeiting apparatus and attempted burglary, and in December 2015 with possession of a stolen vehicle and vehicle theft. He was released from prison only four months before his current offenses and, as noted, was on PRCS when he committed those offenses.
As the California Supreme Court noted in Carmony, "[b]ecause 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." (Carmony, supra, 33 Cal.4th at p. 378.) No such extraordinary circumstances exist in the present case. Considering Hinton's extensive criminal history and the court's decision to sentence him to a term of only four years in prison despite the probation officer's recommendation of 11 years and the prosecution's request for eight years, we find no violation of the spirit of the three strikes law or abuse of discretion in the court's refusal to strike Hinton's prior strike conviction allegation.
Hinton argues the court abused its discretion by considering only his criminal record and not considering other factors, including the circumstances surrounding the current offense, his personal traits, and the danger he presented to society. The record reflects that the court did consider the circumstances surrounding the current offenses, including the fact that Hinton was on PRCS when he committed them. The court stated it had reviewed the court file, Hinton's Romero motion, the prosecution's opposition to the motion, and the probation report, which set forth the circumstances surrounding the current offenses. At the hearing on Hinton's motion, defense counsel argued that Hinton's criminal conduct was the result of his drug addiction and unstable mental health. To the extent the court was silent regarding relevant factors other than criminal history, such as the particulars of Hinton's background, character, and prospects, we presume the court correctly applied the law and took those factors into account. (Carmony, supra, 33 Cal.4th at p. 378, citing People v. Gillispie (1997) 60 Cal.App.4th 429, 434 [Where the record is silent in a post-Romero case it is presumed that the trial court correctly applied the law.].)
In challenging the court's exercise of discretion, Hinton emphasizes that none of his prior convictions were violent felonies. The court presumably considered that fact in exercising its discretion to strike all five of Hinton's prison priors and concluding that notwithstanding the prosecution's request for an eight-year sentence and the probation officer's recommendation for an 11-year sentence, "four years[,] given all of the surrounding circumstances[, was] adequate punishment for the crime of counterfeiting[,] which did not involve acts of violence." The court's decision to let Hinton's prior strike conviction stand while generously striking all of his prison priors did not violate the spirit of the three strikes law and, accordingly, was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.




DATO, J.

WE CONCUR:



NARES, Acting P. J.



O'ROURKE, J.