Filed 11/20/18 P. v. Turpin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge.

Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Henry Junior Turpin, Sr., was convicted by no contest plea of carrying a concealed dirk or dagger. On appeal, he contends the trial court abused its discretion when it denied his request to dismiss his prior felony “strike” conviction allegation. We affirm.

PROCEDURAL SUMMARY

On October 30, 2017, defendant pled no contest to carrying a concealed dirk or dagger (Pen. Code, § 21310)[1] and admitted having suffered a prior felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), in exchange for a four-year sentence lid.

On November 1, 2017, defendant raised a Romero[2] motion requesting that the trial court dismiss his prior felony conviction.

On December 4, 2017, the trial court denied the Romero motion and sentenced defendant to prison for the low term of 16 months, doubled to two years eight months pursuant to the Three Strikes law.

On December 5, 2017, defendant filed a notice of appeal.

FACTS[3]

On July 23, 2017, an officer came into contact with defendant as he was walking. After the officer asked defendant if he had anything illegal on his person, defendant answered that he had a “drug pipe” and a knife. Defendant produced a pipe containing methamphetamine residue. The officer removed an approximately five-inch-long fixed-blade knife from defendant’s rear pocket. Defendant stated he used the knife to protect himself from stray dogs. The officer also found a piece of plastic that contained 0.345 grams of methamphetamine.

DISCUSSION

Section 1385 grants trial courts the discretion to dismiss a prior felony conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) “ ‘A court’s discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with … section 1385[, subdivision] (a).’ ” (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law “was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 [“a primary purpose of the Three Strikes law was to restrict judicial discretion”].) The Three Strikes law establishes “ ‘a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,’ ” unless the sentencing court finds a reason for making an exception to this rule. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) There are “stringent standards that sentencing courts must follow in order to find such an exception.” (Ibid.) In ruling on a Romero motion, “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 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, at p. 161.)

The defendant bears the burden of clearly showing the trial court’s decision not to dismiss a prior felony conviction allegation was arbitrary or irrational. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, 33 Cal.4th at pp. 376-377.) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, ‘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. [Citation.] [¶] But ‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. [Citation.] … Because 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. Of course, in such an extraordinary case—where the relevant factors … manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (Id. at p. 378.)

In this case, defendant’s criminal conviction history began in 1985 when he was 20 years old, and included the following convictions: in 1985, he was convicted of felony receiving stolen property (§ 496.1), for which he received three years of probation; also in 1985, he was convicted of misdemeanor resisting arrest (§ 148), for which he received three years of probation; in 1992, he was convicted of driving under the influence (Veh. Code, § 23152, subd. (b)), for which he received five years of probation; in 1993, he was convicted of lewd and lascivious act upon a child under the age of 14 (§ 288, subd. (a)), for which he received three years of probation; in 1994, he was convicted of driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)), for which he received three years of probation; in 1997, he was convicted of misdemeanor possession of marijuana while driving (Veh. Code, § 23222, subd. (b)), for which he received three years of probation; also in 1997, he was convicted of driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)), for which he received three years of probation; also in 1997, he was convicted of being a felon in possession of a firearm (§ 12021, subd. (a)), for which he received three years of probation; in 1998, he was convicted of driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)), for which he received 12 months of probation; also in 1998, he was convicted of annoying a child under the age of 18 (with a similar prior) (§ 647.6, subd. (c)(2)), for which he received four years in prison; in 2002, he violated parole and was returned to prison; in 2005, he violated parole and was returned to prison; in 2006, he was convicted of driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)) (apparently his probation was denied); in 2008, he was convicted of felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), for which he received six years in prison; in 2014, he was released on post-release community supervision (PRCS); in 2016, he was convicted of misdemeanor reckless driving (Veh. Code, § 23103, subd. (a)) and driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)), for which he received three years of probation; also in 2016, he was flash incarcerated and his PRCS was transferred; later in 2016, his PRCS was terminated.

Defendant’s 1993 conviction for lewd and lascivious act upon a child under the age of 14 formed the basis of the prior felony conviction allegation in this case.

The probation officer’s report concluded:

“The defendant has an extensive criminal history, dating back to the mid 1980’s. Since then, he has continually acquired numerous felony and misdemeanor offenses, including PRCS and parole violations. In the instant matter, the defendant was found in possession of a knife and methamphetamine. Despite all attempts at local rehabilitation and incarceration sanctions, the defendant continues to re-offend. Since rehabilitative services and local sanctions have had little effect in deterring the defendant from further criminality, your officer respectfully recommended that probation be denied … and the defendant be committed to state prison.”

Defendant’s Romero motion argued that (1) his 1993 strike conviction was remote in time; (2) the current offense was relatively minor—he did not brandish or use the knife and was cooperative with the officer; (3) his criminal past was related to his methamphetamine addiction; (4) without dismissal of the prior, the length of his sentence would be unjust; (5) other than his prior strike conviction, his history does not include violent crimes; (6) even with dismissal of the prior, he would likely be too old upon his release to commit crimes; (7) he had no convictions between 1998 and 2008; (8) he acknowledged wrongdoing at an early stage of the criminal proceedings; and (9) his prior performance on PCRS was satisfactory.

At the sentencing hearing, the following occurred:

“[DEFENSE COUNSEL]: … [Defendant] is essentially informing the Court that he is not trying to deny responsibility for the offenses in this case. He simply wishes to inform the Court that he is asking for leniency because he is 53 years old. He, at this time, is seeking to rehabilitate himself. He has a drug problem. His—his—which is the center of the offense here. And, um, he is simply informing the Court that he is trying to get his life straightened out. Those are the contents of the letter.

“THE COURT: All right. Thank you. At this time, I’ll hear from the People with regards to their position on—on sentencing or the report.

“[PROSECUTOR]: Yes, Your Honor. It would be the People’s position that this is not an individual who falls outside of the spirit of the Three Strikes Law. Particularly, and although the strike comes from 1998, since that time, this defendant has had constant and consistent contacts with law enforcement—or excuse me, the strike is from 1993, but since that time, he had a 1998 felony conviction for which he served four years—was sentenced to four years in prison. Came back in 2002 and 2005 with violations of his parole and was returned to prison on those. And in 2009, he received a six-year term in state prison. And upon his release, he violated P.R.C.S. in 2015 and picked up additional misdemeanors in 2016 and as well as additional more minor misdemeanors scattered throughout the entire period as indicated in the probation report. Frankly, this—this individual has spent very little time free from the criminal justice system. Notably, he was terminated from P.R.C.S. approximately five months before committing the instant offense. So based upon that, the People don’t believe this is an—are the type of extraordinary circumstances in which Romero would be granted as outlined in People v. Vargas [(2014) 59 Cal.4th 635]. And the People would argue that the [section] 1385 in this case should be denied based upon that. So, we’ll submit.

“THE COURT: All right. Thank you. [Defense counsel], response, please?

“[DEFENSE COUNSEL]: Yes, Your Honor, just that he did complete and terminate from his P.R.C.S. Um, his—the convictions that were noted by the People for the felonies were few and far between, in 1998 and in 2009. And we’ll submit on that.

“THE COURT: All right. Thank you. The matter stands submitted to the Court for the pronouncement of judgment. In order for the Court to exercise its grant of relief in the furtherance of justice to strike the prior allegation, the Court would have to find that [defendant] falls outside the scheme of the Three Strikes Law and there’s factors the Court has to consider under a case called People v. Williams and People v. Superior Court (Romero). Um, there has been a series of Supreme Court cases that distinguish and give the Court parameters about what it’s to do and what it’s to consider with regards to the application of the furtherance of justice standard. And the Court[s] consistently use the language in its jurisprudence with regards to extraordinary circumstances. Noting that the sentencing norm is that which is charged and admitted here, frankly, and that is as a recidivist offender. I don’t find that there’s been any showing to show that he has rehabilitated himself. As noted, he hasn’t been that long off of P.R.C.S. There are some mitigating circumstances, I would agree with Defense, but those circumstances do not amount to unusual circumstances or the furtherance of justice standard. And so the Court would deny his request for [section] 1385 relief and order that he’s to receive the low term of 32 months in state prison for the violation of Penal Code Section 21310. The low term is arrived at after a consideration of the circumstances of this offense, which are not very serious, relatively minor as noted by the Defense, but also noting that he acknowledged culpability early in the proceedings.”

In our opinion, the trial court was correct in concluding that this is not an extraordinary case in which all reasonable people would agree that defendant falls outside the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 378.) Defendant’s record supports the conclusion that he was almost constantly involved with the criminal justice system from the age of 20. He was repeatedly granted probation and he repeatedly reoffended, some years suffering multiple convictions. Other than the breaks in convictions between 1985 and 1992, the breaks were mostly due to incarceration. He performed poorly on probation, parole, and PRCS, although he did ultimately complete PRCS. Overall, his record does not demonstrate a trend toward rehabilitation, but rather an insistence on repetitive criminal behavior. While defendant is correct that he did not resort to violence in the commission of the current offense, this factor did not remove him from the effects of the Three Strikes law.[4] (See People v. Strong (2001) 87 Cal.App.4th 328, 340 [a criminal career need not have consisted entirely of violent or serious felonies to bring the defendant within the spirit of the Three Strikes law].) Furthermore, the prior strike conviction was not so remote to suggest defendant had otherwise led a crime-free life, and his record established he had not. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [“remote” carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect on the error of his ways].) Finally, defendant’s alleged addiction to drugs did not operate to excuse his continuous commission of crimes. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [“drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment”].) In sum, defendant has not shown that the trial court’s decision not to strike the prior felony conviction allegation was arbitrary or irrational. We cannot say the trial court abused its discretion.

DISPOSITION

The judgment is affirmed.