P. v. Thomas
Filed 4/17/07 P. v. Thomas CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ERIC ANGEL THOMAS, Defendant and Appellant. | D049171 (Super. Ct. No. SCD197488) |
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed.
A jury convicted Eric Angel Thomas of sale of cocaine base (Health & Saf. Code, 11352, subd. (a)) and possession for sale of cocaine base (Health & Saf. Code, 11351.5), and found true the allegations Thomas served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b),[1]and suffered a serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. Thomas contends: (1) the trial court abused its discretion by declining to dismiss the prior felony conviction allegation; and (2) the evidence is insufficient to support the possession for sale conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Detective Roberto Lemus was working as part of a narcotics team when he approached Carla Poole in a known narcotics trafficking area. Lemus asked her if she knew from whom he could buy narcotics, and Poole responded that she would help him find a dealer. Lemus gave Poole a prerecorded $20 bill. Poole walked across the street and spoke to Eric Thomas, who walked to the front of a nearby hotel and took something out of a planter box. He then placed something back in the planter box. Thomas walked back to Poole and handed her something, allegedly rock cocaine, and Poole gave Thomas something, allegedly the prerecorded $20 bill, in return. Poole walked back to Lemus and handed him .13 grams of cocaine base. Lemus gave the "bust signal," and uniformed officers arrested Poole and Thomas.
The officers searched Poole and found nothing. The officers searched Thomas and found the prerecorded $20 bill, .18 grams of cocaine base, and an additional $251 in cash.
Officer Robert Stinton searched a planter box near where Thomas was arrested and found .81 grams of cocaine base. He did not search the planter box from which Thomas allegedly obtained the cocaine he gave to Poole.
The jury convicted Thomas of sale and possession for sale of cocaine base, with true findings he served a prior prison term within the meaning of section 667.5, subdivision (b), and suffered a serious or violent felony conviction within the meaning of sections 667, subdivisions (b) through (i) and 1170.12. The court sentenced Thomas to the midterm of four years for the sale conviction, doubled to eight years under the three strikes law, and imposed but stayed execution of a sentence of the midterm of four years for the possession for sale conviction, doubled to eight years under the three strikes law. The court imposed an additional one-year enhancement for the prior prison term, a restitution fine of $1,800 under section 1202.4, subdivision (b), and imposed but stayed an additional restitution fine of $1,800 under section 1202.45.
DISCUSSION
I
Prior Felony Conviction Allegation
The trial court has the power to dismiss prior felony conviction allegations in the interest of justice. ( 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) In ruling whether to dismiss a prior conviction allegation under the three strikes law, the court must consider both the constitutional right of the defendant to receive a fair punishment and the interest of society in the fair prosecution of crimes. (Romero, at p. 531.) In addition, the 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 [the defendant's] background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme's spirit, in whole or in part, and hence should be treated as though [the defendant] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) A court may deem a repeat offender as outside the spirit of the three strikes sentencing scheme only in extraordinary circumstances. (People v. Carmony (2004) 33 Cal.4th 367, 378.) The three strikes law restricts a court's discretion in sentencing recidivists, and a court abuses its discretion in refusing to dismiss a prior conviction allegation only if "its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) For example, a court abuses its discretion when it is unaware of its power to dismiss a prior felony conviction allegation or considers impermissible factors (id. at p. 378), including court congestion.
Thomas contends the trial court abused its discretion by declining to dismiss his prior felony conviction allegation because of the relatively minor nature of his current offense. He explains the current offense was nonviolent and involved only a $20 cocaine transaction. In addition, he notes his prior performance on parole was "satisfactory." The nature of the current offense and his performance on parole, however, cannot be considered "extraordinary." Rather, his current offense is part of a continuous pattern of crime that includes not only the serious felony conviction, but another felony and multiple misdemeanors. Thomas does not fall outside the spirit of the three strikes scheme. The court did not abuse its discretion by declining to dismiss Thomas's prior serious felony conviction allegation.
II
Substantial Evidence Supports the Possession for Sale Conviction
Under the standard of substantial evidence, we " 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 578.) The function of the appellate court is not to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), and reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
Here, Thomas contends the evidence is insufficient to support his possession for sale conviction because Officer Stinton found the .81 gram rock of cocaine base in a different planter from the one in which Detective Lemus saw Thomas rummaging. There is no direct evidence Thomas retrieved or placed anything in the planter in which Officer Stinton found the .81 gram rock. However, the .81 gram rock is not necessary to support Thomas's conviction. Rather, the .13 gram rock found in Thomas's pocket after his arrest is substantial evidence supporting his conviction for possession for sale.
DISPOSITION
The judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line Lawyers.
[1] All statutory references are to the Penal Code unless otherwise specified.
