P. v. Fleming

Filed 7/16/07 P. v. Fleming 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. David B. Downing, Judge. Affirmed.

Patrick J. Hennessey, Jr., 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, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

Defendant entered an open plea of guilty to one count of possession of methamphetamine (count 1 ‑‑ Pen. Code,  11377, subd. (a)),^[1] one count of receiving stolen credit cards (count 2 ‑‑  496, subd. (a)), and one count of identity theft (count 3 ‑‑  530.5, subd. (d)). In addition, he admitted the truth of several enhancement allegations, including three prior prison term allegations ( 667.5 subd. (b)) and one prior strike conviction ( 667 subds. (c) & (e)(1), 1170.12 subd. (c)(1)). On appeal, defendant contends the trial court erred in declining to strike his prior strike conviction and in determining he was ineligible for referral to the California Rehabilitation Center (CRC). For the reasons set forth below, we conclude the trial court acted appropriately and affirm the judgment.

I. FACTAL AND PROCEDURAL BACKGROUND

On March 29, 2006, officers conducted a probation search of defendants brothers home where they found defendant outside attempting to get into a vehicle parked in front. Defendant informed them he was on parole and that his brother had turned himself in the previous day. In defendants room therein, the officers discovered paraphernalia of methamphetamine use; .05 grams of methamphetamine; and several identification, credit, and social security cards in various individuals names.

Prior to sentencing, defendant filed a sentencing memorandum. Even though the memorandum did not mention People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), or any of its progeny, nor request that the court strike a prior strike conviction, all individuals involved treated the memorandum as a Romero motion. The court denied the motion, and found defendant ineligible for referral to CRC due to his conviction on the prior strike. It ultimately sentenced defendant to an aggregate term of seven years four months, minus custody credits.

II. DISCUSSION

On appeal, defendant contends the court erred in failing to strike his prior strike conviction and in declining his request for referral to CRC. Despite defendants portrayal of the issues as separate, they are, in fact, mutually dependent; hence, we will deal with them concurrently.

[A] courts failure to dismiss or 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.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. (Id. at p. 376.) In the absence of such a showing, the trial court is presumed to have acted correctly. (Id. at pp. 376-377.) The appellate court may not substitute its judgment for that of the trial court when determining whether the courts decision to strike the prior was proper. (Id. at p. 377.) [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question 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. [Citation] (Ibid.) 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]. (Id. at p. 378.) [T]he circumstances must be extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the . . . scheme . . . . (Ibid.)

Here, defendant argues that, given the trivial nature of his current conduct, the trial courts refusal to strike his prior conviction was error. However, in so doing, defendant fails to note the very purpose of the Three Strikes law, which is to look not solely at a defendants current offense, but also at his criminal history. (People v. Mantanez (2002) 98 Cal.App.4th 354, 366.) Here, as the trial court explicitly noted, defendant had a rather lengthy criminal past: . . . Mr. Fleming hasnt led a legally blameless life. On the contrary, he has been in and out of prison since then, so he has not led a legally blameless life.

Indeed, defendant admitted a conviction for possession of methamphetamine at the age of 15. He had a conviction for contempt of court (Pen. Code,  166, subd. (a)(4)) on July 19, 1995. He suffered a stalking (Pen. Code,  646.9, subd. (a)) conviction on November 8, 1995. On January 3, 1996, he was convicted of carjacking (Pen. Code,  215, subd. (a)), possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)), and kidnapping (Pen. Code,  207, subd. (a)). Finally, he obtained another conviction on December 6, 2001, for possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) with a prior strike allegation (Pen. Code,  667 subds. (c) & (e)(1)). In conjunction therewith, defendant had been found to have violated parole on three previous occasions. The apparent gaps in defendants criminal conviction record consisted of the periods of time during which he was serving prison sentences. Additionally, defendant had just been paroled on March 6, 2006, 23 days prior to committing the instant offenses. The court, the prosecutor, and defendant below all admitted the People could have alleged an additional prior strike conviction for which he would have received a 25-year-to-life sentence. Hence, defendant is precisely the type of habitual offender to whom the Three Strikes law was designed to apply.

Defendant also notes that his long-term drug problem was a major factor in all his instances of criminality; hence, the trial court should have considered it as a mitigating factor when determining whether to strike his prior strike conviction. While drug addiction may be considered a mitigating factor for purposes of determining whether to strike prior convictions, it may lose that distinction when a defendant consistently fails to make any effort at rehabilitation. (People v. Williams (1998) 17 Cal.4th 148, 155, 163; see also People v. Gaston (1999) 74 Cal.App.4th 310, 322.) Here, defendant admitted to initiating his substance abuse with marijuana at the age of six and alcohol at the age of 10. He admitted to expansive abuse and experimentation with drugs, both in type and frequency. Likewise, defendant had four previous positive drug tests while out on parole. Moreover, the record shows three previous convictions for possession of methamphetamine. Thus, it is indisputable that he had a substance abuse problem. Nonetheless, the record is devoid of any effort defendant made to ameliorate his addiction. Indeed, the probation officer noted that defendant had no answer when asked about the numerous opportunities he had received to get himself straight. Therefore, the court was well within its discretion in declining to strike defendants prior strike conviction.

Defendant finally contends that the court erred in not referring him to CRC. A court has no discretion to issue such a referral where the defendants sentence exceeds six years. (Welf. & Inst. Code,  3052, subd. (a)(2).) Here, defendants ultimate sentence was over seven years; thus, he was ineligible for a CRC recommendation. Defendant also argues that the present trial court was inclined to refer him to CRC, but did not because it erroneously believed that even if it did strike the prior strike conviction, defendant would still be ineligible for referral. The record belies defendants claim. Here, the trial court stated, Given all the facts and circumstances of your ‑‑ Mr. Flemings background, I am not going to Romero the strike. I do not think that would be appropriate, and even if I were to do that, which I will not, but even if I wereto, my experience with CRC is they will not take him, because he has previous violence in his background, and they just will not take him. (Italics added.) Clearly, the court had no intention of entertaining a CRC referral. Moreover, defendant has failed to show any prejudice. Nowhere does defendant show that even if the court had stricken the prior, he would then be eligible for, or the court would likely have referred him to, CRC. Rather, defendant simply speculates he may well have qualified for acceptance to CRC and would in all likelihood . . . have been eligible. It is, of course, appropriate for the court to deny referral to CRC when it finds a defendant has engaged in a pattern of excessive criminality. (People v. Wagoner (1979) 89 Cal.App.3d 605, 615-616.) Here, as noted above, defendant had an extensive criminal history, which included the commission of extremely serious crimes, such as carjacking and kidnapping. Defendants sentence was proper.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Gaut

J.

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