P. v. Stewart

Filed 6/25/07 P. v. Stewart CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Jimmy Lee Stewart guilty of first degree burglary. (Pen. Code, 459.)^[1]Four prior conviction allegations were submitted to the trial court and found true. Defendants motion, based on section 1385, subdivision (a), and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to dismiss the prior convictions was denied, and the court sentenced him to 23 years in state prison. Defendant appeals the denial of his motion as an abuse of discretion. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of the underlying offense are neither disputed nor at issue in this appeal.

On May 3, 2005, Fabiola Ramirez observed defendant climb over a fence into the backyard of her neighbor, Wayne Moody. Ramirez went to the home of another neighbor, Jacqueline Doyle, and together they watched defendant exit Moodys house twice, once with a bicycle and a second time with a dark-colored backpack. Ramirez and Doyle called the police, who stopped defendant a block away from Moodys house. Defendant had in his possession a screwdriver, as well as a bike and a black duffel bag containing a laptop computer and a Victorias Secret catalogue addressed to Moodys residence. Doyle and Ramirez both identified the defendant as the burglar. Moody later identified the items found in defendants bag as those stolen from his home.

The information charged defendant with one count of first degree burglary, a serious felony within the meaning of section 1192.7, subdivision (c), and four prior convictions, one for first degree burglary, a serious felony within the meaning of section 667, subdivisions (b) through (i), and the remaining three (two for first degree burglary and one for first degree robbery) for serious felonies within the meaning of section 667, subdivision (a).

As to the count of first degree burglary, the jury found defendant guilty as charged. After defendant waived his right to a jury trial on the four prior conviction allegations, the court found all four allegations true beyond a reasonable doubt.

Prior to sentencing, defendant made a motion pursuant to section 1385, subdivision (a), requesting dismissal of all four prior convictions. The court denied the motion and imposed a sentence of four years (the middle term), doubled based upon the prior strike, plus an additional five years each for three of the prior convictions, for an aggregate sentence of 23 years in state prison, minus presentence custody credits. Defendant was also ordered to pay certain fees and fines.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends that the trial courts decision not to grant his motion to dismiss the priors was irrational and arbitrary because defendants admittedly lengthy criminal record involved very little violence, and his living situation mitigated against the severity of the crime.

We are not persuaded.

A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of the Three Strikes law.

( 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court must consider 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. (Williams, supra, 17 Cal.4th at p. 161.)

The trial courts failure to . . . strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (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 the 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.)

Thus, only in an extraordinary case -- where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ would the failure to strike be an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)

In denying defendants motion, the trial court considered not only defendants extensive criminal history, but also the fact that (1) defendants background demonstrated a continuous course of criminal conduct beginning in 1972, (2) most of the offenses were theft-related, (3) some of the offenses involved slight violence, (4) defendant committed crimes as soon as he was released from prison, and (5) there was no gap in time between the 1975 conviction and later crimes. The court also observed that defendants propensity toward crime did not appear to be decreasing, despite defendants age (53) or the potential of family support (12 siblings).

Although defendant urges that his living situation mitigated against the severity of the crime, he provides no explanation to support that contention. The only evidence we find in the record regarding any details about defendants life is a letter from the defendant to the trial court in which defendant explains that he was periodically homeless and unable to read or write for most of his adult life, and identifies an addiction to crack cocaine as his main problem in life. Defendant urges the court that, although drug free as of the writing of the letter, he would be better served by placement in an in-house 12-step program as an alternative to incarceration in state prison to help him continue to stay on the right track.

The trial court acknowledged receipt of defendants letter. However, in contrast, it also considered the probation report which, as the People correctly point out, notes defendants contrary representations that he last used cocaine in 1978 and denied the use of illegal drugs or narcotics has caused problems in his life. The probation report also details 26 encounters between defendant and law enforcement agencies in several counties beginning in 1972 and continuing through 2005, interrupted only by periods of incarceration.

Defendant has the burden of showing the sentencing decision was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at pp. 376-377.) He has not met that burden. Based on the evidence before it, the trial courts determination that defendant did not fall outside the spirit of the Three Strikes law was neither irrational nor arbitrary. We find no abuse of discretion in the courts denial of defendants motion to dismiss the prior convictions.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

RAYE , J.

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^[1] Further undesignated section references are to the Penal Code.