P. v. Church

Filed 7/5/07 P. v. Church 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

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A jury found defendant Noah Charles Church guilty of possessing heroin for sale, a felony (Health & Saf. Code,  11351),^[1] maintaining a place for selling/using heroin, a felony ( 11366), possessing a smoking device, a misdemeanor ( 11364), and possessing a hypodermic syringe without a permit, a misdemeanor (Bus. & Prof. Code, 4140). The jury found him not guilty of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)), being a felon in possession of ammunition (Pen. Code, 12316, subd. (b)(1)), and possessing heroin while armed with a loaded firearm ( 11370.1, subd. (a)). In a bifurcated proceeding, the trial court sustained allegations that defendant had two prior strike convictions (Pen. Code, 1170.12, 667, subds. (b)-(i)) and a prior narcotics conviction ( 11370.2, subd. (a)). After denying defendants motion to strike at least one of his prior strike convictions, the trial court sentenced him to an aggregate term of 28 years to life in prison, consisting of 25 years to life for possessing heroin for sale, plus a consecutive three years for the narcotics enhancement. Sentence on the remaining felony count was stayed pursuant to Penal Code section 654.^[2]

Defendant appeals, contending the trial court erred in failing to strike one or both of his prior strike convictions. We shall affirm.

Facts and Procedural History

We need not recount in detail the facts of the underlying offenses. Suffice it to say that on May 22, 2005, the Shasta Interagency Narcotics Task Force searched defendants residence--a room at the Capri Motel in Redding, which he shared with his wife and son--and found hypodermic syringes, approximately one-quarter gram of heroin, a digital scale, a used glass pipe, pay/owe sheets, clean packaging, a loaded .50 caliber handgun, and ammunition. Officers also searched a van parked near the hotel room and found approximately 7.9 grams of heroin behind the ashtray and a glass pipe on a ledge over the drivers seat door. Defendant told one of the law enforcement officers the heroin underneath the ashtray was his.

Both of defendants prior strike convictions were for attempted robbery. Defendant was convicted of attempting to rob two separate victims. Both attempted robberies occurred on October 1, 1982, and involved the use of a knife. Defendant was sentenced to three years for one of the attempted robberies and a consecutive eight months for the other. In deciding to impose consecutive sentences, the trial court found the crimes involved separate acts of violence and multiple victims.

Before the sentencing hearing in this case, defendant made a request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and Penal Code section 1385 to strike at least one of his prior convictions. Although the court found the motion was a close one, it denied it.

Discussion

Defendant claims the trial court abused its discretion in failing to strike one or both of his prior convictions because (1) the prior convictions were closely connected; (2) although defendant had approximately eight prior felony convictions, the only violent felonies were the prior strike convictions; (3) defendants only felony conviction during the past 10 years was for failing to register as a sex offender in 2003; (4) the majority of defendants convictions of all sorts were for drug offenses; and (5) the trial court was misadvised as to the maximum potential sentence defendant could receive if the court struck one of his prior convictions, and as a result, was hindered in the exercise of its discretion.

A trial court has discretion to strike, at a defendants request or on its own motion, prior felonies alleged for sentence-enhancement purposes. (Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony conviction, 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 [] spirit [of the Three Strikes law], 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 (1998) 17 Cal.4th 148, 161.) We review a trial courts decision to deny a motion to strike a prior conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The court abuses its discretion if its consideration of the factors set forth in Williams falls outside the bounds of reason. [Citations.] (Williams, supra, 17 Cal.4th at p. 162.)

In People v. Benson (1998) 18 Cal.4th 24, 36 (Benson), our Supreme Court held that a qualifying prior conviction [may] be treated as a strike even if the sentence on the conviction has been stayed pursuant to the provisions of [Penal Code] section 654. In doing so, the court noted in dicta: Because the proper exercise of a trial courts discretion under [Penal Code] section 1385 necessarily relates to the circumstances of a particular defendants current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected--for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct--that a trial court would abuse its discretion under [Penal Code] section 1385 if it failed to strike one of the priors. (Benson, at p. 36, fn. 8.)

Citing the dicta in Benson, in People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos), the court held the trial court abused its discretion in failing to strike one of two prior strike convictions. (Id. at pp. 1214-1215.) There, the defendant was convicted of second degree robbery and assault by means likely to produce great bodily injury, and he admitted two prior strike convictions: attempted carjacking and attempted robbery. (Id. at pp. 1211-1212.) The prior convictions were based on the following facts: the defendant and two companions approached a man at a gas station and [the defendant] demanded the victims car while one of the companions told the victim that he had a gun. (Id. at p. 1212, fn. 3.) The trial court denied the defendants request to dismiss one of the strike convictions. (Id. at p. 1212.) The Court of Appeal reversed, explaining that the defendants strike priors arose from a single criminal act. His criminal history aside from the strike convictions consisted of misdemeanors, including a juvenile finding of battery on his sister and adult convictions of interference with a bus driver, unruly behavior at a bus terminal, and littering, and of one felony conviction for sale of a substance in lieu of a controlled substance . . . . While the current offenses were not merely petty theft or drug possession offenses, neither were they, under the circumstances, the worst of crimes. (Id. at p. 1216.)

The present case is readily distinguishable. Unlike Burgos, the record here does not demonstrate that defendants attempted robbery convictions arose from a single criminal act. As defendant acknowledges, there is very little information in the record about the facts surrounding the attempted robberies, other than that they occurred on the same day and involved different victims. As defendant candidly concedes: Whether [defendant] actually threatened both [victims] with a knife separately or at the same time does not appear in the record. However, in deciding to impose consecutive sentences for the two convictions, the trial court found the crimes involved separate acts of violence and multiple victims. Thus, if anything, the record suggests the strike convictions did not arise from a single criminal act.

Moreover, defendants history of criminal activity spans nearly 30 years and includes approximately four misdemeanor convictions, including a 1997 conviction for battery, seven felony convictions (aside from the strike convictions), including a 1980 conviction for oral copulation while in jail, 1980 and 1981 convictions for grand theft, a 1988 conviction for possession of a firearm by an ex-felon, a 1992 conviction for possession of methamphetamine for sale, a 1992 conviction for possession of a controlled substance for sale and possession of marijuana for sale, and a 2003 conviction for failing to register as a sex offender, numerous parole violations between 1990 and 1998, in addition to the present offenses, which include two felonies and two misdemeanors. Furthermore, defendant was on probation at the time he committed the present offenses. Defendant manifestly is not outside the letter or spirit of the Three Strikes law. While perhaps not violent, defendants prior felony convictions are serious and his history evinces an ongoing pattern of criminality.

We reject defendants claim that the trial court was hindered in the exercise of its discretion because it was misadvised as to the maximum term defendant could receive if the court struck one of his prior strike convictions. At the sentencing hearing, the People told the trial court that the maximum sentence defendant could receive in this case if the court struck one of defendants prior strike convictions was 12 years four months--eight years for possessing heroin for sale (the maximum term, doubled), plus three years for the narcotics prior, and a consecutive 16 months for maintaining a place for sale (one-third the middle term, doubled). Defense counsel then added that defendant would also receive an eight-month sentence (one-third the middle term) in an unrelated case, bringing the total sentence to 13 years. As defendant points out, the 13 years did not include an additional five years defendant would receive in the unrelated case for five prior prison term enhancements.

Defense counsels omission was of no consequence. The trial court was correctly advised that the maximum sentence defendant could receive in this case was 12 years four months. Moreover, the probation report clearly indicated defendant would receive an additional five years in the unrelated case for the five prison priors, and the court indicated it had reviewed the report prior to the sentencing hearing when it ruled on defendants motion to strike. In addition, the court sentenced defendant on this and the unrelated case moments after it denied the motion to strike and in doing so imposed an additional five years for the five prison priors in the unrelated case. Thus, even assuming the court was not aware defendant would receive an additional five years in the unrelated case at the time it ruled on the motion to strike, it was soon made aware of that fact and could have revisited its ruling on the motion to strike had the additional time made any difference to the court.

Finally, defendants assertion, in his reply brief, that the trial court appeared to accept the prosecutors erroneous suggestion that application of section 654, rather than the close connection of the offenses was the issue is not supported in the record.

Accordingly, the trial court did not abuse its discretion in refusing to strike one or both of defendants prior strike convictions.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] Hereafter, undesignated section references are to the Health and Safety Code.

^[2] The trial court also sentenced defendant to a consecutive five years eight months in prison in an unrelated case, consisting of eight months for the underlying offense, plus five years for five prior prison terms.