P. v. Romero

Filed 10/18/07 P. v. Romero CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Affirmed with directions.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

After a bench trial, defendant and appellant Gilbert Allen Romero was found guilty of possession of a controlled substance (Health & Saf. Code, 11377, subd. (a), count 1) and transportation of a controlled substance. (Health & Saf. Code, 11379, subd. (a), count 2.) The trial court also found true the allegations that defendant had two prior strike convictions (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d))^[1]and had served two prior prison terms, within the meaning of section 667.5, subdivision (b). The court sentenced defendant to a total prison term of 27 years to life, which consisted of the indeterminate sentence of 25 years to life on count 2 (deemed the principal count), the indeterminate sentence of 25 years to life on count 1, to run concurrent, plus two consecutive years for the two prison term enhancements.

On appeal, defendant contends: 1) his Sixth Amendment right to a speedy trial was violated; 2) the trial court abused its discretion by refusing to strike one of his strike convictions; 3) his sentence violated the California constitutional prohibition against cruel and unusual punishment; 4) the imposition of potential life sentences under the Three Strikes law violated the prohibition against double jeopardy; and 5) the concurrent sentence on count 1 should be stayed under section 654. The People concede, and we agree, that the sentence on count 1 should be stayed. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At around 1:45 a.m., on February 27, 2005, Barstow Police Officer Thomas Lee conducted a traffic stop of defendants vehicle. Officer Lee asked to see defendants drivers license, registration, and proof of insurance. Another officer arrived on the scene and Officer Lee showed him defendants license. The officer informed Officer Lee that defendant was on parole. Officer Lee asked defendant to step out of his vehicle and then searched him. He found a small plastic bag in the bottom of one of defendants shoes that contained what appeared to be methamphetamine. (The substance was later analyzed and tested positive for methamphetamine. The substance weighed .36 grams.) Defendant was arrested for violating his parole. He was released to the custody of the California Department of Corrections and Rehabilitation to serve time for the parole violation. He was subsequently charged with and convicted of possessing and transporting a controlled substance.

ANALYSIS

I. Defendants Sixth Amendment Right to a Speedy Trial Was Not Violated

Defendant contends that his Sixth Amendment right to a speedy trial was violated and, therefore, his convictions must be reversed. The crux of his complaint is that, by the time of his arraignment, he had lost the opportunity for a concurrent sentence. In other words, he alleges that there was an unexplained delay between the time he was arrested and his arraignment. He argues that the delay prejudiced him, since he lost the chance to serve any sentence stemming from the instant charges concurrently with the prison term he was already serving on the parole violation. We reject his claim.

A. Background

Defendant was arrested on February 27, 2005. He was booked on a parole violation and released to the custody of the Department of Corrections and Rehabilitation. The police forwarded a copy of the police report to the district attorney (DA) for review and consideration of the charges.

On March 3, 2005, while he was incarcerated in prison on the parole violation, defendant sent a written demand to be brought to trial on the instant case, pursuant to section 1381.

The DA filed a felony complaint against defendant on May 25, 2005, charging him with possession of a controlled substance (Health & Saf. Code, 11377, subd. (a), count 1) and alleging one strike prior and two prison priors. (The DA later filed a first amended information to add count 2 and one more strike prior.) Defendant was apparently released from his incarceration on the parole violation on July 27, 2005. He was arraigned in the instant case two days later.

On September 22, 2005, prior to trial, defendant filed a motion to dismiss the complaint, pursuant to section 1381 and the California Constitution, on the ground that his right to a speedy trial was violated. The trial court heard the motion and denied it on October 13, 2005.

Defendant filed a renewed motion to dismiss on December 2, 2005. He alleged that when the police arrested him, they knew he was on parole. He was then committed to serve several months on the parole violation. Because the DA failed to initiate formal charges against him until months after his arrest, defendant lost his opportunity to serve his sentence concurrent with the term he was serving on the parole violation. Thus, his right to a speedy trial was violated under both the state and federal Constitutions. The court heard arguments from both parties, but then deferred the motion to the end of trial. The court concluded that there had been no showing of prejudice, absent the arguments regarding current time. It then reasoned that defendant would receive day-for-day, hour-for-hour credit for the time he spent in custody for the parole violation, which meant that there would be no prejudice to defendant. Without expressly stating whether or not defendants speedy trial right was violated, the court denied the motion to dismiss.

B. Defendants Right to a Speedy Trial Was Not Violated

Both the state and federal Constitutions guarantee criminal defendants the right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) Here, defendant raises a claim only under the federal Constitution. The United States Supreme Court has held that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. (United States v. Marion (1971) 404 U.S. 307, 320 (Marion); see also People v. Martinez (2000) 22 Cal.4th 750, 761.)

In support of his position, defendant argues that his speedy trial right attached at the time of his arrest in February 2005. He complains that his speedy trial right was violated because there was a delay of five months between the date of his arrest (February 27, 2005) and his arraignment (July 29, 2005). However, the speedy trial right attaches only upon either a formal indictment or else the actual restraints imposed by arrest and holding to answer a criminal charge. (Marion, supra, 404 U.S. at p. 320.) Here, defendant was arrested on February 27, 2005, was booked on the charge of a parole violation, and was then released to the Department of Corrections and Rehabilitation to serve the term on that charge. In other words, there were no actual restraints imposed on him at that time, since he was not held to answer on the criminal charges in the instant case until later. Thus, defendants speedy trial right did not attach until the formal complaint was filed on May 25, 2005. (See Marion, supra, 404 U.S. at p. 320.) He was arraigned approximately two months later. Under these circumstances, there was no unreasonable delay. As such, there is no need to inquire into any other factors normally considered in a speedy trial violation claim, such as the reason for the delay and the defendants assertion of the right. (Barker v. Wingo (1972) 407 U.S. 514, 530.)

Moreover, there is very little support for defendants position, considering the purposes of the Sixth Amendments speedy trial provision. The purposes are to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. [Citations.] (Marion, supra, 404 U.S. at p. 320.) Defendant has not alleged that he suffered undue restraints on his liberty, or that he was the subject of public accusation, or that the passage of time impaired memories, caused evidence to be lost, deprived him of witnesses, or otherwise interfered with his ability to defend himself. (Ibid.) He only complains that he lost the opportunity for a concurrent sentence. However, [t]he likelihood of serving a sentence on a pending charge concurrently with a sentence already being served in another case is speculative. (People v. Lowe (2007) 40 Cal.4th 937, 946.) Furthermore, at sentencing in the instant case, he was given custody credits for the time he served on the parole violation.

Defendant argues that the courts remedy of giving him credits for the time served on the parole revocation, rather than dismissing the current charges, was expressly rejected in Strunk v. United States (1973) 412 U.S. 434, 440 (Strunk). Strunk is distinguishable. In that case, the petitioner was charged with a federal offense in the United States District Court. Before trial, the district court denied a motion to dismiss the charge, which the petitioner argued that he had been denied his right to a speedy trial. (Id. at p. 435.) The Court of Appeal reversed the district court, holding that the petitioner had in fact been denied a speedy trial. However, the Court of Appeal believed that the remedy of dismissing the charge was extreme, so it remanded the case to the district court to reduce the petitioners sentence to the extent of 259 days[,] in order to compensate for the unnecessary delay which had occurred between return of the indictment and petitioners arraignment. (Ibid.) The United States Supreme Court then reviewed the case, but the only question before the Supreme Court was whether the remedy fashioned by the Court of Appeal was proper. (Id. at 437.) The Supreme Court held that since the Government did not challenge the determination that the petitioner was denied a speedy trial, the proper remedy was to set aside the district courts judgment of conviction, rather than give him sentence credits to compensate for the delay. (Id. at p. 440.)

Strunk is significantly distinguishable from the instant case. First, the delay in prosecuting the case occurred between the return of the indictment and the petitioners arraignment, and it was for 10 months. (Strunk, supra, 412 U.S. at p. 435.) Second, by the time the case reached the Supreme Court, there had already been a judicial determination that the petitioner was denied a speedy trial. (Ibid.) Third, the Supreme Court rejected the Court of Appeals remedy of reducing the petitioners sentence to compensate for the delay because the determination that he was denied a speedy trial was unchallenged. (Id. at p. 440.)

In contrast, in the instant case, the alleged delay occurred before the formal complaint was even filed and it was only for two months. Furthermore, the People are challenging the claim that defendants speedy trial right was violated. Thus, Strunk is inapplicable here and does not require us to reverse defendants conviction.

We conclude that defendants speedy trial right under the Sixth Amendment did not attach at the time he was arrested, but rather upon the filing of the formal complaint on May 25, 2005. Since he was arraigned approximately two months later, we find no violation of his speedy trial right.

II. The Trial Court Properly Exercised Its Discretion in Refusing to Strike

Defendants Prior Strike Convictions

Defendant contends the trial court erred in failing to strike at least one of his prior strike convictions. He asserts that: 1) the instant offense involved a relatively small quantity of methamphetamine, presumably for personal use, rather than for sale; 2) the instant offense was a victimless, nonviolent crime; 3) he was gainfully employed; 4) his sole purpose for driving that night was to help a relative in trouble; and 5) he is not a danger to the community. We conclude that the court properly declined to strike any of his prior strikes.

A. Standard of Review

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the California Supreme Court held that a trial court has discretion to dismiss three strike prior felony conviction allegations under section 1385. (Id. at pp. 529-530.) [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).) It 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 courts ruling, even if we might have ruled differently in the first instance. [Citation.] (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

B. The Trial Court Did Not Abuse Its Discretion

The touchstone of the Romero analysis is 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 schemes 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. [Citation.] (Carmony, supra, 33 Cal.4th at p. 377.) [T]he circumstances must be extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the . . . scheme . . . . (Id. at p. 378.)

This case is far from extraordinary. Defendant claims that the trial court abused its discretion in failing to strike a prior conviction, given the seemingly trivial nature of his current offenses. However, his recidivist criminal history brings him squarely within the spirit, as well as the letter, of the Three Strikes law. His criminal career began 20 years ago, as a juvenile, when he was convicted of assault with a deadly weapon. ( 245, subd. (a)(1).) His convictions through the years include possession of a weapon to commit assault ( 467); possessing, manufacturing, and selling a dangerous weapon ( 12020, subd. (a)); aiding and assisting a murder suspect ( 32); assault with a firearm ( 245, subd. (a)(2)); battery ( 243, subd. (d)); and manslaughter ( 192). During his lengthy criminal history, defendant repeatedly violated his grants of probation or parole. In short, the record demonstrates two decades of criminal conduct, undeterred by repeated incarcerations. Moreover, as noted by the court, defendants current conduct shows that he has failed to make a clean break from his reprehensible past.

We, therefore, cannot find that the court abused its discretion in declining to strike any of defendants prior convictions.

III. Defendants Sentence Does Not Constitute Cruel and Unusual Punishment

Defendant contends his sentence of 27 years to life is disproportionate to his current offenses and, as such, constitutes cruel and unusual punishment under the state Constitution. (Cal. Const., art. I, 17.) We disagree.

The California Constitution is violated when the punishment is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) The main technique of analysis under California law is to consider the nature both of the offense and of the offender. [Citation.] The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendants individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind. [Citations.] (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)

With regard to the nature of the offense, defendant again argues that possession and transportation of methamphetamine is a nonviolent, victimless crime. He also asserts that the offense of possession of methamphetamine is ordinarily a wobbler that can be punished as a misdemeanor, with the maximum penalty of one year in county jail for a first time offender. In addition, he avers that, at the time of the arrest, he was not engaged in violent behavior, he was not selling drugs, and he was not under the influence. He states that he merely drove to a bar to pick up a relative who called for a ride to avoid trouble. He concludes that the instant offenses are relatively minor. With regard to the nature of the offender, defendant makes no argument.

Defendant essentially minimizes his offenses. For a first-time offender, the offense of possession of methamphetamine may be considered a minor offense. However, in light of defendants extensive criminal background, the offense was significant. Defendant was on parole at the time the police stopped him. He was concealing illegal drugs in his shoes, which presumably meant that he had associated with a drug dealer to obtain the drugs. His actions on that night demonstrate that he is not the innocuous person that he portrays himself to be. He was clearly not trying to rehabilitate himself in any way. Instead, he was continuing his persistent, unlawful conduct.

We conclude that his punishment was not grossly disproportionate, in light of the nature of the offense and the nature of the offender.

IV. Defendants Sentence Does Not Violate the Double Jeopardy Clause

Defendant contends that his sentence violates the double jeopardy clause because his past offenses were used to elevate his present offense from a misdemeanor to a felony and also to enhance his sentence under the Three Strikes law. We assume defendant is referring to the drug possession offense under Health and Safety Code section 11377 since that offense may be charged as a misdemeanor or a felony. (Health & Saf. Code,  11377, subd. (a).) Defendants argument is meritless.

Both the state and federal Constitutions prohibit the state from placing a defendant twice in jeopardy for the same offense. (U.S. Const. Amend. 5; Cal. Const. art. I,  15; People v. Fields (1996) 13 Cal.4th 289, 297-298.) [The Fifth Amendment guarantee against double jeopardy] consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1519-1520 (White Eagle).) The double jeopardy clause does not prohibit the imposition of enhanced punishment under a recidivist statute. (Witte v. United States (1995) 515 U.S. 389, 400; White Eagle, supra, at p. 1520.) Recidivist statutes do not impose a second punishment for the first offense in violation of the double jeopardy clause of the United States Constitution. [Citation.] Moreover, the double jeopardy clause does not prohibit the imposition of multiple punishment for the same offense where the legislature has authorized multiple punishment. (White Eagle, supra, at p. 1520.)

Defendant argues that his life sentences constitute punishment for his past conduct rather than his present crimes. However, he is not currently being punished for his prior convictions. He is being punished under the sentencing provisions of section 667, subdivision (e), for the possession and transportation of methamphetamine offenses he committed in 2005. The 2005 offenses and his prior strike convictions for assault with a deadly weapon and manslaughter are distinct offenses. Although his status as a repeat offender subjects him to harsher punishment under section 667, subdivision (e), and may have been used to elevate his present possession offense under Health and Safety Code section 11377 to a felony, he is not now being punished for his past offenses.

Thus, use of defendants prior felony convictions in sentencing did not violate the prohibition against double jeopardy.

V. Defendants Sentence on Count 1 Should Have Been Stayed Under Section 654

Defendant argues, and the People concede, that the sentence imposed on count 1 should have been stayed pursuant to section 654.

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.] (People v. Hester (2000) 22 Cal.4th 290, 294.) Thus, if a defendant suffers two convictions, punishment for one of which is precluded by section 654, section 654 requires the sentence for one conviction to be imposed, and the other imposed and then stayed. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.] (Ibid.)

In this case, the record establishes that the two offenses were committed with a single intent and objective. The court accordingly found that section 654 applied. The court chose count 2 as the principal term. Thus, the sentence on count 1 should have been stayed pursuant to section 654. The abstract of judgment should be modified to reflect the stay.

DISPOSITION

The judgment is modified pursuant to section 654 to stay the term imposed on count 1. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment and its minute order to reflect this modification and to

forward a certified copy of the amended abstract of judgment to the Director of the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

Acting P.J.

We concur:

/s/ RICHLI

J.

/s/ KING

J.

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