Filed 4/28/17 P. v. Purvis CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

LARELL MARQUIS PURVIS,

Defendant and Appellant.
D070537



(Super. Ct. No. SCD259553)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed.

David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Larell Marquis Purvis's appointed appellate counsel has filed a brief asking this court to independently review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.
PROCEDURAL BACKGROUND
In late 2014, Purvis was charged in a felony complaint with one count of possession of methamphetamine for sale (count 1: Health & Saf. Code, § 11378) and one count of unlawfully owning or possessing ammunition while being a person prohibited from owning or possessing a firearm (count 2: Pen. Code, § 30305, subd. (a)(1)). As to count 1, the complaint alleged that the amount of methamphetamine Purvis possessed for sale was 28.5 grams or more within the meaning of section 1203.073, subdivision (b)(2). The complaint also alleged that Purvis (1) was ineligible for probation because he previously had been convicted of a felony two or more times in this state (§ 1203, subd. (e)(4)); (2) had suffered three prison priors (§§ 667.5, subd. (b), 668); and (3) had suffered one strike prior within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, 668). At the conclusion of the preliminary hearing, the parties stipulated that the complaint was deemed to be the information.
In June 2015, Purvis pleaded guilty to possession of methamphetamine for sale as charged in count 1, and admitted the strike prior allegation. The parties agreed to a sentencing "lid" of 32 months in state prison (the low term of 16 months doubled under the Three Strikes law as a result of Purvis's admission he had suffered a prior strike). In exchange for Purvis's guilty plea and admission, the People agreed to dismiss the balance of the charges and allegations in the information, and the court agreed to consider a defense motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and section 1385 to strike the prior strike allegation (Purvis's Romero motion).
Defense counsel thereafter filed Purvis's Romero motion in conjunction with a sentencing statement in mitigation. Purvis's Romero motion listed the following reasons in support of his request that the court strike the strike prior allegation: (1) his 1994 prior strike was remote in time; (2) the current crime, which took place in a hotel room, involved other participants and his involvement was minimal; (3) both the current crime and his previous offenses were nonviolent; and (4) he was able to conduct himself as a law-abiding citizen.
The People opposed Purvis's Romero motion, arguing that Purvis (1) "is the poster child for the Three Strikes law and does not deserve to have his strike prior dismissed"; (2) "[h]is 21-year criminal history displays sexual abuse, domestic violence, guns, and drugs"; (3) "[h]e ha[d] already received the benefit of probation and parole in previous cases, which he violated on numerous occasions"; and (4) "[h]e did not take advantage of the court['s] and the People's leniency in the past, but chose instead to engage in further criminal conduct."
At the sentencing hearing on September 9, 2015, the court heard and denied Purvis's Romero motion. The court stated:
"The law is such that if the court can make a finding that the defendant falls outside of those contemplated to suffer the consequences of prior convictions under the strike law that in fact the court should exercise its discretion. And in looking at the criteria or the things that I should consider for that purpose, I need not only look at the instant offense but I need to look at his record. [¶] The defendant's record is at least 28 years old. It's relatively consistent for that period of time, although there were some gaps. And there was a six-year gap from the last time he committed the offense—an offense in this case—between this offense and the last, but he is not the kind of person who falls outside of those contemplated to suffer the consequences of the prior convictions. [¶] His juvenile record prior to hi[s] suffering the strike is of great concern, because it's consistent with the offense that he was convicted of that caused him to have the strike in 1994. Those two acts alone cause the court great concern. And as such, the strike will not be stricken."

The court then sentenced Purvis under the terms of the plea agreement to 32 months in state prison. Specifically, the court imposed the lower term of 16 months for Purvis's count 1 conviction of possession of methamphetamine for sale (Health & Saf. Code, § 11378), and then doubled that sentence to 32 months under the Three Strikes law as a result of Purvis's admission of the strike prior allegation. The court awarded four days of custody credits and imposed various fines and fees.
Purvis filed a notice of appeal on March 22, 2016. By order dated July 21, 2016, this court granted Purvis's request for constructive filing of his notice of appeal, and directed the San Diego County Superior Court to file the notice of appeal.
FACTUAL BACKGROUND
On November 7, 2014, the San Diego Police Department received information that illegal narcotics were being sold out of a hotel room in San Diego. At around 11:00 a.m., police officers executed a " 'knock and notice' " Fourth Amendment waiver search of the hotel room. Before they entered the room, the officers gave a "hard-knock" and announced themselves. Receiving no response, the officers forcibly entered the room to prevent anyone from destroying evidence and immediately contacted four people, including Purvis. One of the individuals was in the bathroom attempting to flush drugs down the toilet. The officers searched the room and found narcotics, drug paraphernalia, and an open bag. The bag contained about one-half pound of methamphetamine, as well as documents indicating that Purvis had dominion and control over the bag and its contents.
Purvis was detained and searched. The officer who searched Purvis found in his pockets a plastic baggie containing almost 11 grams of methamphetamine, as well as two .22-caliber rounds of ammunition. At the preliminary hearing, the parties stipulated that Purvis previously had been convicted of a felony in 2009 that made him a person who was prohibited from owning or possessing ammunition.
DISCUSSION
Purvis's appellate counsel has filed a brief pursuant to Wende and Anders v. California (1967) 386 U.S. 738 (Anders), summarizing the proceedings below and indicating he was unable to find any reasonably arguable issues for reversal or modification of the judgment on appeal. Purvis's counsel has identified the following issues that "might arguably support the appeal" (Anders, at p. 744): (1) Did the trial court abuse its discretion in denying Purvis's Romero motion; (2) Was Purvis advised of his trial rights and the consequences of his guilty plea before he entered into the plea bargain; (3) Is there a factual basis for his guilty plea; and (4) Did he receive the agreed upon sentence?
We granted Purvis permission to file a brief on his own behalf. He did not do so.
A. Analysis
1. Denial of Purvis's Romero motion
Our review of the record discloses no reasonably arguable appellate issue with respect to the court's denial of Purvis's Romero motion to strike his prior strike. In Romero, supra, 13 Cal.4th at pages 504 and 529-530, the California Supreme Court held that section 1385, subdivision (a) permits a court "in furtherance of justice" to strike prior felony conviction allegations in cases brought under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Although the Legislature has not defined the phrase "in furtherance of justice" contained in that subdivision, the Supreme Court has held that this language requires a court to consider both the " ' " 'constitutional rights of the defendant, and the interests of society represented by the People' " ' " in determining whether to strike a prior felony conviction allegation. (Romero, supra, 13 Cal.4th at p. 530, italics omitted.)
In People v. Williams (1998) 17 Cal.4th 148 (Williams), the California Supreme Court explained that, in determining whether to strike or vacate a prior strike allegation or finding under the Three Strikes law " 'in furtherance of justice' " pursuant to section 1385, subdivision (a), the trial 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 [Three Strikes law'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, at p. 161.)
Finally, in People v. Carmony (2004) 33 Cal.4th 367, 371 (Carmony), our high state court held that a trial court's decision not to dismiss a prior strike conviction allegation under section 1385, subdivision (a) is reviewed under the deferential abuse of discretion standard. (Carmony, at pp. 371, 376.) Carmony explained 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 p. 377.)
Were we to apply the deferential abuse of discretion standard in reviewing the court's denial of Purvis's Romero motion (see Carmony, supra, 33 Cal.4th at p. 371), we would conclude the court did not abuse its discretion. The record shows the court considered the factors discussed in Williams: "[T]he nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects" (Williams, supra, 17 Cal.4th at p. 161). Purvis claimed in his motion that (among other things) his current offense of possessing methamphetamine for sale and his previous offenses were all nonviolent, and he was able to conduct himself as a law-abiding citizen. However, his claims were belied by his 27-year criminal history, which was detailed in the probation report. Purvis began committing criminal offenses as a young juvenile in the late 1980's. He was 40 years of age when he committed his current felony offense in late 2014. His criminal history includes (among other things) acts of sexual battery both as a juvenile and as a young adult, acts of domestic violence, and violations of probation and parole. The record demonstrates Purvis has not taken advantage of prosecutorial and judicial leniency, but has chosen to engage in further criminal conduct by committing the current offense. The record of Purvis's criminal recidivism supported the court's finding that he falls within the spirit of the Three Strikes law.
2. Remaining issues raised by Purvis's appellate counsel
Our review of the record also discloses no reasonably arguable appellate issue with respect to any of the remaining three issues raised by Purvis's appellate counsel. Specifically, the record demonstrates that Purvis initialed boxes on his change of plea form indicating that he was freely and voluntarily entering his guilty plea, that he understood and was giving up the enumerated constitutional trial rights, and that he understood the consequences of his plea. The record also shows that at the June 2015 change of plea hearing, before he entered his guilty plea, Purvis indicated to the court that he reviewed the change of plea form with his attorney and understood everything on the form he initialed, and that he understood and was giving up his constitutional trial rights.
The record also shows that there is a factual basis for Purvis's guilty plea (discussed, ante, in the factual background section of this opinion), and that he received the agreed upon sentence of 32 months in state prison.
In sum, our review of the record pursuant to Wende and Anders, including the issues identified by Purvis's appellate counsel, has disclosed no reasonably arguable appellate issues. Accordingly, we affirm the judgment. Purvis's appellate counsel has competently represented him in this appeal.
DISPOSITION
The judgment is affirmed.


NARES, J.

WE CONCUR:




HUFFMAN, Acting P. J.




AARON, J.