P. v. Villalobos
Filed 3/2/07 P. v. Villalobos CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. VICTOR VILLALOBOS, Defendant and Appellant. | D048553 (Super. Ct. No. SCS198028) |
APPEAL from a judgment of the Superior Court of San Diego County, Raymond Edwards, Jr., Judge. Affirmed.
A jury convicted Victor Villalobos of transportation of more than 28.5 grams of marijuana (Health & Saf. Code, 11360, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, 11359), and found true the allegations that Villalobos had suffered a prior strike conviction (Pen. Code, 667, subds. (b)-(i), 1170.12, 668),[1]and served two prior prison terms ( 667.5, subd. (b), 668). The court denied Villalobos's motion to dismiss his prior strike conviction allegation, and sentenced him to a prison term of eight years. Villalobos contends the failure to dismiss his prior strike conviction allegation was an abuse of discretion.
FACTS
A. The Present Offense
Villalobos was apprehended by United States Customs officers when he entered the United States from Mexico transporting more than 100 pounds of marijuana in the car he was driving.[2] After he was arrested, he admitted to officers he was paid $1000 to bring the marijuana from Mexico to Chula Vista, California.
B. Villalobos's Criminal History
The probation report summarized Villalobos's criminal history and performance on parole. His "prior strike" conviction was a 1981 conviction for robbery. In the 25 years following that conviction, Villalobos's criminal history was extensive. He was convicted of possession of a controlled substance in 1983, of theft with a prior in 1984, and violated his parole for that offense in 1987, 1988, 1989, and 1990. He was convicted of possession of a controlled substance in 1990, and suffered four more drug convictions in 1991, and another drug conviction in 1992. He was convicted of possession of a controlled substance, along with possession of burglary instruments, in 1993. He was convicted of possession of a controlled substance in 1994, and in 1995. After 32 months in prison, Villalobos was released and (less than a year later) was convicted of grand theft and sentenced to 44 months. When he was released on parole for that offense, he violated parole and suffered another conviction for possession of a controlled substance in 2001. He was discharged from parole in April 2005 and, fewer than eight months later, was arrested for the present offenses.
C. The Request to Dismiss
Villalobos requested dismissal of his prior strike conviction allegation in the interests of justice under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He asserted the prior strike conviction was ancient, the present offense was neither sophisticated nor violent, his criminal history was attributable to his drug dependency, and an eight-year term for the present offense would be grossly disproportionate to the offense. The trial court weighed the nature of the offense (concluding the amount of drugs being transported made the offense a significant crime) and the nature of the offender (concluding Villalobos's criminal history and two prison terms in the years following his conviction for robbery showed he had not led a legally blameless life) and denied the request.
ANALYSIS
A trial judge may dismiss prior serious or violent felony conviction allegations in the furtherance of justice under section 1385. (Romero, supra, 13 Cal.4th 497.) In doing so, trial courts are bound to follow the general principles regarding the exercise of discretion developed in the law under section 1385. When evaluating the question of whether to dismiss prior conviction allegations, a court must consider both the interests of the defendant as well as the public as represented by the prosecutor. (People v. Orin (1975) 13 Cal.3d 937, 945.) Judges making those decisions should be influenced by those factors that would convince a reasonable trial judge to reach the same conclusion. (Ibid.; People v. Williams (1998) 17 Cal.4th 148, 159.)
In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the court held a trial court's decision not to dismiss a prior conviction allegation under section 1385 is reviewed under "the deferential abuse of discretion standard." (Carmony, at p. 371.) Carmony explained that when reviewing a decision under that standard an appellate court is 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." (Id. at pp. 376-377.)
The court in Carmony stressed that in determining whether a trial court acted "irrationally or arbitrarily in refusing to [dismiss] a prior conviction allegation," the reviewing court must consider the refusal in the context of legal principles and policies regarding the particular law under which the discretionary exercise of authority was sought. (Carmony, supra, 33 Cal.4th at p. 377.) In Carmony, as here, the three strikes law ( 667, subds. (b)-(i); 1170.12) was the pertinent law for this inquiry. (Carmony, at p. 377.)
In reviewing the three strikes law, Carmony reiterated its observation made in Romero that the law was " 'intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.]" (Carmony, supra, 33 Cal.4th at p. 377.) It also repeated the requirement set out in Williams that a trial court "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," before exercising its discretion to dismiss a prior felony conviction allegation. (Carmony, supra, 33 Cal.4th at p. 377.)
Carmony further explained that because a trial court's adherence to the provisions of the three strikes law creates a strong presumption the trial court was not abusing its discretion in refusing to dismiss a prior conviction allegation for purposes of sentencing under that scheme, "a trial court will only abuse its discretion in failing to [dismiss] a prior felony conviction allegation in limited circumstances[, such as] 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, 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. [Citation.]" (Carmony, supra, 33 Cal.4th at p. 378.)
Villalobos has not clearly shown the court abused its discretion in its sentencing decision. The probation report and argument from counsel fully informed the court of Villalobos's criminal history and current offenses, as well as the factors relied on by Villalobos in support of his request, and the trial court was aware of its discretion to dismiss and did not consider any impermissible factors in declining to dismiss. Villalobos's criminal behavior was frequent and, during the past 25 years, he has demonstrated he was incapable of complying with the dictates of the law or, when leniency was shown, the terms of parole or probation. Although the present offense was neither violent nor victimized any specific individual, Villalobos's unbroken history of drug use and crimes to support that drug use, including crimes when Villalobos was on probation or parole, supported the trial court's conclusion Villalobos was a person within the spirit of the three strikes law.
The record reflects the court was fully aware of its discretion to dismiss a prior felony conviction allegation for purposes of sentencing under the three strikes scheme and determined it was not in the interests of justice to exercise its section 1385 discretion to dismiss the allegation. We conclude the trial court's ruling was not an " ' "arbitrary, capricious or patently absurd" result' under the specific facts of [Villalobos's] case. [Citation.]" (Carmony, supra, 33 Cal.4th at p. 378.)
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
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[1] All statutory references are to the Penal Code unless otherwise specified.
[2] The precise amount is unclear. The officer who seized the materials testified the approximate weight to be 117 pounds, although a forensic chemist testified he estimated the total weight to be approximately 93 pounds.
