P. v. Quillin

Filed 4/24/07 P. v. Quillin CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Don Quillin pled no contest to the felony of failing to register as a sex offender pursuant to Penal Code section 290, subdivision (a)(1)(D)[1] and admitted having a prior strike conviction ( 1170.12). Quillin was sentenced to 32 months in state prison.

The sole issue on appeal is whether the trial court erred by denying Quillins motion to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Finding no such error, we affirm the judgment.

II. STATEMENT OF FACTS AND PROCEDURAL HISTORY

A. Background[2]

Quillin was arrested on March 20, 2005, after he was identified as a sex registrant who was out of compliance. On March 30, 2005, he was convicted of a misdemeanor violation of section 290, subdivision (a)(1)(A). In connection with that conviction, Quillin was advised to register pursuant to section 290 after completion of his jail sentence. Quillin was released on May 18, 2005, but again failed to register pursuant to section 290 and was arrested again on August 3, 2005.

Quillin reported that he was aware that he needed to register but did not do so because [e]very time I feel disgusted and degraded. It is very depressing for me to have to register. However, I have had a lot of time to think since I have been in jail. I know now that I just need to buckle down and do it. I dont want to live the rest of my life locked up. I regret not doing it.

B. Lower court Proceedings

An information filed August 26, 2005, charged Quillin with two felony violations of section 290 for failing to comply with registration requirements arising from a January 1991 felony conviction for commission of a lewd act upon a child in violation of section 288, subdivision (a). The 1991 sex offense was also the basis for a prior strike and prior prison term allegation. Quillin pleaded not guilty to both counts and denied the prior conviction allegations.

On September 28, 2005, the trial court granted a request by Quillins counsel to appoint Doctor Thomas Cushing to perform a psychological assessment pursuant to Evidence Code section 730. According to that report, Quillin is basically illiterate with respect to his reading and writing skills but is otherwise operating within the gross-normal range of intelligence in terms of his understanding of non-academic matters. Quillin suffers from intermittent depression but shows no present signs or symptoms of pedophilia or of a personality disorder. Quillin has a history of alcohol and drug abuse and reported heavy use of methamphetamine prior to and during the period in 1991 when he was accused of and convicted for inappropriate sexual contact with his then five-year-old niece. Cushing found no information indicating that Quillin had acted out inappropriately in a sexual manner since that time and attributed the subsequent multiple periods of incarceration to Quillins ongoing marijuana, methamphetamine and alcohol use.[3]

On November 4, 2005, Quillin filed a motion to strike his prior strike conviction pursuant to section 1385. Quillin relied on his limited criminal history and Cushings report which he characterized as evidence of mitigating circumstances as to his failure to register. After a hearing on November 17, 2005, the Honorable Cerena Wong denied Quillins motion.

On March 14, 2006, Quillin pled no contest to one count of violating section 290 and admitted the prior strike in exchange for an indicated sentence of 32 months. At the subsequent sentencing hearing, Quillins defense counsel renewed his motion to strike the prior strike conviction. The trial court denied the motion and sentenced Quillin to the lower term of 16 months for failing to register, doubled to 32 months pursuant to the Three Strikes law.

III. DISCUSSION

Quillins sole contention on appeal is that the trial court erroneously denied his motion to strike his prior strike conviction allegation. Quillin contends that the circumstances show that he is outside the spirit of the Three Strikes law.

[A] trial courts refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (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 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 the present case, the trial court identified two primary circumstances which influenced its decision not to strike Quillins prior. First, despite the complexity of the registration requirements, Quillin had registered in the past and also admitted that he was aware of his obligation to update his registration but chose not to comply. Second, the prior strike was a sex offense involving a five-year-old victim and the court was not persuaded by arguments that said offense was not serious. In addition, the court observed that the consequences of Quillins self-described dysfunctionalism only reinforced the likelihood of ongoing problems with the law. The court agreed with defense counsel that Quillin was not in the same category as Richard Allen Davis but nevertheless declined to exercise its discretion to strike the strike.

The record before us demonstrates that the trial court conducted a proper inquiry during which it considered relevant factors and circumstances and reached an impartial decision in conformity with the spirit of the law. That decision was neither irrational nor arbitrary and, therefore, was not an abuse of discretion. (See Carmony, supra, 33 Cal.4th at p. 378.)

IV. DISPOSTION

The judgment is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

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Lambden, J.

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Richman, J.

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[1] Undesignated statutory references are to the Penal Code.

[2] Because Quillin waived his right to a preliminary hearing and no trial was held, we, like the parties, have obtained background information from the probation report.

[3] In connection with the 1991 sex offense, Quillin violated probation and then, after serving a prison sentence, violated parole twice. In addition, as noted above, Quillin has a misdemeanor conviction for violating section 290.