P. v. Harris

Filed 7/26/07 P. v. Harris CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.

I.

INTRODUCTION

In April 2005, the People charged Don R. Harris with caretaker theft from an elder (Pen. Code, 368, subd. (e))^[1] (count 1), theft from an elder ( 368, subd. (d)) (count 2), grand theft ( 487, subd. (a)) (count 3), perjury by declaration ( 118, subd. (a)) (count 4), and attempted child abduction ( 278.5, subd. (a)) (count 5). The People also alleged that Harris had previously suffered a prior strike conviction ( 667, subds (b)-(i), 668, 1170.12). A jury found Harris guilty of counts 1 and 4, and not guilty of counts 2, 3, and 5. After the jury returned its verdicts, Harris admitted the prior strike allegation.

The trial court denied Harris's motion to dismiss the prior strike and sentenced Harris to a total term of eight years in prison. The court sentenced Harris to six years on count 1, consisting of the middle term of three years, doubled pursuant to the Three Strikes law, and a two-year consecutive term on count 2, consisting of one-third the middle term of three years, doubled pursuant to the Three Strikes law.

In a prior appeal, this court reversed the conviction on count 1 due to instructional error, rejected Harris's claims of insufficiency of the evidence as to counts 1 and 4, and rejected Harris's contention that the trial court abused its discretion in denying his motion to dismiss the strike. (People v. Harris (Jun. 15, 2006, D046628) [nonpub. op.] (Harris I).) On remand, the People declined to retry Harris on count 1. At resentencing, Harris again moved to dismiss the prior strike conviction. The trial court denied Harris's motion to dismiss the strike, and sentenced Harris on the remaining count (count 4) to a total term of six years in prison, consisting of the middle term of three years, doubled pursuant to the Three Strikes law.

In the present appeal, Harris contends that the trial court abused its discretion in refusing to strike the prior strike conviction. We affirm the judgment.

II.

FACTUAL BACKGROUND^[2]

A. Harris's relationships

Harris maintained relationships with two women: Elizabeth Harris (Elizabeth) and Deanna Thyssen. Harris had a son with Elizabeth in April 1988. Harris had a daughter, R.H., with Thyssen in October 1998. Harris, Thyssen and R.H. lived together in San Diego until 2001, at which time they moved to Hawaii. In November 2003, Harris, Thyssen and R.H. returned to San Diego and continued to live together. In December 2003, Harris moved into a one-bedroom apartment on Park Boulevard near Balboa Park. In February 2004, Thyssen and R.H. moved into a hotel together. On April 15, Harris invited Thyssen and R.H. to stay at his apartment. All three slept together in the same bed. While Thyssen lived there, she and Harris had a sexual relationship. On June 7, without Thyssen's knowledge, Harris married Elizabeth.

B. Thyssen's trip to Hawaii

On September 10, Thyssen traveled to Hawaii to visit her hospitalized mother. With Elizabeth's assistance, Harris purchased Thyssen's airplane ticket for departure on September 10 and return on September 16. Thyssen left R.H. in Harris's care because R.H. was in school, and Thyssen believed her trip would be short.

On September 15, Harris called Thyssen and asked her not to return the following day because he wanted to move to Hawaii and live with her there. Thyssen agreed, and the pair spoke about living on Oahu. Harris told Thyssen that he and R.H. would fly into Oahu on Sunday, September 26. Thereafter, Harris repeatedly called Thyssen and told her that their arrival date had been delayed.

In the meantime, Thyssen moved from Maui to Oahu, moved in with a family friend and obtained a job. She told Harris where she was living, and gave him telephone numbers at which she could be contacted. On October 24, Harris called Thyssen and gave her his flight number and arrival time for a flight that was to arrive in Oahu on October 25. However, when Thyssen arrived at the airport on October 25, she learned that there was no such flight number. When Harris and Thyssen spoke later that day, Harris told Thyssen that he and R.H. had missed their flight and that they would arrive the following Monday. Later that week, Thyssen tried to call Harris at the hotel at which he said he and R.H. would be staying, but he was not there. Thyssen then called Harris's mother, father, and sister, and learned that Harris was preparing to move to Texas with R.H., a woman, and a boy.

Thyssen called the family court in San Diego and learned that in her absence, Harris had obtained an order awarding him sole legal and physical custody of R.H. On November 3, Thyssen returned to San Diego. On November 4, Thyssen picked up R.H. from protective custody, where she had been since Harris's arrest the previous day. Thyssen obtained an order granting her custody of R.H. the next day.

C. Harris's perjury by declaration

After Thyssen left for Hawaii, Harris had retained Attorney Robert Garland to file an ex parte application for an order awarding Harris sole physical and legal custody of R.H. In support of the application, Harris signed a declaration under penalty of perjury that Garland prepared based on information Harris had provided.

The declaration signed by Harris under penalty of perjury, and filed with the court, stated:

"My daughter [R.H.] was born in San Diego on October 4, 1998. She lived with me and her mother in San Diego. We all moved to Hawaii in November 2001. We all returned to San Diego in October of 2003 and stayed briefly with Ms. Thyssen's adult son from another relationship. After one week in San Diego Ms. Thyssen left with [R.H.] without notice to me. I got a place of my own and I worried about [R.H.]. Ms. Thyssen and [R.H.] were gone for about three months on and off. Sometimes staying in a hotel and sometimes she said she was staying with friends, but I couldn't be sure [where] she was. . . . [A]fter about three months in January of 2004 Ms. Thyssen and [R.H.] moved back in with her son Patrick. We evenly split custody of [R.H.], who slept at my house half of the time. In June of 2004, Ms. Thyssen threatened to go back to Hawaii with [R.H.] if I didn't let her move in with me, so I did. She moved in with me from July 2004 until September 2004. When Ms. Thyssen realized that our relationship was over she went to Hawaii and left [R.H.] with me. That was on September 7th, 2004. I have spoken to Ms. Thyssen by telephone and she has no place of her own in Hawaii and is staying with friends. She says she has no intention of coming back to San Diego. I do not have an address for her either. [R.H.] is enrolled in [an elementary school] in San Diego and is in the first grade. She is well cared for and in good health. She went to kindergarten [at the same school]. The school has told me that I have no legal rights to [R.H.], even though she is my daughter. I need a temporary order granting me legal and physical custody rights. There is nothing stopping Ms. Thyssen from coming back and taking [R.H.] without notice to me. I have signed an advisement and waiver of rights acknowledging that [R.H.] is my daughter and filed the paternity petition. I declare under penalty of perjury under the laws of the State of California this is true and correct." (Italics added.)

On approximately October 6, a trial court issued an order granting Harris temporary sole physical and legal custody of R.H.

The People alleged that Harris made the following false statements in his declaration:

"1. We evenly split custody of [R.H.] who slept at my house half of the time.

"2. In June of 2004, Ms. Thyssen threatened to go back to Hawaii with [R.H.] if I didn't let her move in with me. So I did.

"3. She moved in with me from July 2004 until September 7, 2004.

"4. When Ms. Thyssen realized that our relationship was over, she went to Hawaii and left [R.H.] with me. That was on September 7, 2004.

"5. She says she has no intention of coming back to San Diego. I do not have an address for her either.

"6. There is nothing stopping Ms. Thyssen from coming back and taking [R.H.] without notice to me."

At trial, Thyssen testified that these six statements in Harris's declaration were not true. Thyssen testified that R.H. stayed overnight alone with Harris at his Park Boulevard apartment only once or twice, when Thyssen had to work at night. Thyssen also testified that she had not threatened to go back to Hawaii with R.H. in June 2004 if Harris did not let her move in with him. Thyssen testified Harris had falsely stated that she moved in with him in July 2004. Rather, Thyssen had moved into Harris's Park Boulevard apartment on April 15, 2004. Thyssen also testified that she did not go to Hawaii because she realized her relationship with Harris was over. Rather, she went to Hawaii to visit her sick mother. Further, she left for Hawaii on September 10, 2004, not September 7. Thyssen also testified that Harris had falsely stated that she had no place of her own in Hawaii and that she was staying with friends. Rather, she had stayed with her mother when on Maui, and later stayed with a family friend on Oahu. Thyssen testified that Harris falsely stated she had no intention of coming back to San Diego.

III.

DISCUSSION

The trial court did not abuse its discretion in refusing to strike Harris's strike

Harris claims the trial court erred in refusing to strike his prior strike conviction.

A. Governing law

In considering whether to strike a defendant's prior strike conviction, a trial court is required to consider whether, given "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 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." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

Our standard of review of the trial court's decision is well established:

"A trial court's decision to strike prior felony convictions is subject to review under the 'deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. 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 court's ruling, even if we might have ruled differently in the first instance. [Citation.]' [Citation.]" (People v. Romero (2002) 99 Cal.App.4th 1418, 1434 (Romero).)

B. Factual and procedural background

On remand from Harris I, Harris filed a motion to dismiss his prior strike. In his motion, Harris argued the trial court should strike his prior strike because it was remote in time, the current offense was not a serious or violent offense, punishment under the Three Strikes law was disproportionate to the severity of the current offense, and his criminal history was not lengthy. Harris supported his motion with numerous documents attesting to his excellent behavior and his involvement in various self-improvement programs while in prison.

At the resentencing hearing, Harris's attorney reiterated these arguments. In response, the trial court emphasized the seriousness of the current offense and indicated that it had considered the remoteness of the strike and the fact that Harris did not have a lengthy criminal record. The People requested that the court deny Harris's motion to dismiss the strike, emphasizing the brutality of the prior strike offense and arguing that Harris's good behavior in prison did not warrant striking the strike.

The trial court then reviewed the Williams factors, specifically noting that the current offense was of a serious nature, and that the strike offense involved "atrocious conduct." The court considered Harris's performance while in prison, but concluded that Harris was not outside the spirit of the Three Strikes law. The court further stated that a Three Strikes sentence in this case did not "shock [the court's] conscience," and was not disproportionate to the severity of the current offense. The court denied the motion to dismiss the strike.

C. The trial court did not abuse its discretion in refusing to strike Harris's strike

In considering the Williams factors, with respect to the current offense, we agree with the trial court that "perjury goes right to the heart of the justice system," and for that reason, is a very significant offense. This is particularly true in the context of a family law matter in which the custody of a young child is at stake, as the trial court also stressed at the resentencing hearing.

With respect to the circumstances of the strike prior, Harris suffered a 1992 conviction for assault with a deadly weapon or by force likely to produce great bodily injury ( 245, subd. (a)(1)). The June 6, 2005 probation report describes the circumstances of the offense as follows:

"They [Harris and a co-defendant] beat [the victim] up and left her bleeding and naked from the waist down. When the victim regained consciousness, she made her way to a restaurant and screamed for help. She had a fractured jaw, a fractured right orbital of her face, a broken nose, a large contusion on her right breast, a deep laceration on her right cheek, and other minor scrapes and cuts."

We agree with the trial court that the prior strike can be characterized as a "dead-center strike that involved outrageous, atrocious conduct."

While 13 years passed between the commission of the strike offense and the current offense, the trial court considered this fact, and found that in light of Harris's incarceration for three or four of these years, this passage of time was "less impressive." The trial court did not abuse its discretion in concluding that the remoteness of the strike and the lack of any intervening criminal history did not warrant dismissing the strike.

With respect to Harris's background, character, and prospects, we have carefully considered evidence of Harris's exemplary behavior in prison, his wife's statement at the resentencing hearing attesting to his virtues, and his own statement in which he described his efforts to improve himself while in prison. The trial court did not abuse its discretion in determining that evidence of Harris's redeeming characteristics did not warrant dismissing the strike.

We reject Harris's contention that the trial court's refusal to strike Harris's strike must be reversed because it "had to be based in some part upon the court's stated awareness of the Court of Appeal decision [in Harris I] finding that a reasonable jury could have convicted appellant on the crimes." Harris argues, "It is well established that it is improper for the sentencing court to consider facts underlying a dismissed count for purposes of aggravating or enhancing a defendant's sentence, absent a waiver." To begin with, the cases cited by Harris in support of this proposition, People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey), People v. Franco (1986) 181 Cal.App.3d 342, 349 (Franco), considered whether, in sentencing a defendant, it is proper for a trial court to consider a count that was dismissed pursuant to a plea bargain. The Harvey court held that implicit in the plea bargain at issue in that case was the understanding that the defendant would "suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Harvey, supra, 25 Cal.3d at p. 758; see also Franco, supra, 181 Cal.App.3d at p. 350 [distinguishing Harvey because defendant had no "reasonable expectation" regarding trial court's use of dismissed counts in sentencing defendant pursuant to plea bargain at issue in that case].) In this case, the dismissed count was not dismissed by a plea bargain, and thus, Harris could have not had a reasonable expectation that the trial court would not consider it in resentencing him.

Moreover, even assuming that it would be improper for the trial court to rely on the conduct alleged in the dismissed count in refusing to dismiss the strike, the court did not rely on such conduct. While the trial court mentioned that the Harris I court had not reversed Harris's conviction on the ground of insufficient evidence, in denying Harris's motion to dismiss the prior strike conviction, the court did not state that its denial was based in any part on the conduct alleged in count 1.

In sum, "even if we might have ruled differently in the first instance" (Romero, supra, 99 Cal.App.4th at p. 1434), we cannot conclude that the trial court abused its discretion in refusing to grant Harris's motion to dismiss the prior strike.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] While this appeal was pending, we granted Harris's unopposed request that we take judicial notice of the record of his prior appeal in this case (Harris I). This factual background is taken from the opinion in Harris I.