P. v. Tucker

Filed 10/12/07 P. v. Tucker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Ronn M. Couillard, Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Gerald Tucker is before this court for the third time in this case after we remanded his case for further proceedings on two previous occasions. He claims the trial court abused its discretion when it failed to strike his prior convictions under the Three Strikes Law. In addition, he argues that a consecutive sentence could not be imposed because his murder conviction, arising from a 1969 murder, merges with his other sentences. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May of 2002 defendant was convicted of the 1969 first degree murder of Wilma M. (F040806 and F045726).^[1] During the preliminary hearing in the murder case, defendant stood up and slashed his throat with a disposable razor blade. Based on his possession of the razor blade, he was convicted in this case of possession of a weapon while confined in a penal institution in violation of Penal Code section 4502, subdivision (a).^[2] In addition, the jury found he had suffered four prior strikes within the meaning of the Three Strikes Law and had served a prior prison term.

In his first appeal to this court in this case (F041408), we found insufficient evidence to support the prior-conviction strike based on his 1955 burglary conviction, reversed his sentence, and remanded the matter back to the trial court for proceedings in compliance with our disposition. The prosecutor chose not to retry the burglary strike allegation and the matter proceeded to sentencing.

Defendant was sentenced to prison for the indeterminate term of 25 years to life, plus one year for the prior prison term. This term was ordered to run consecutive to the life term sentence for his murder conviction. Defendant appealed and we again reversed defendants sentence, finding that defendant was deprived of a full and fair hearing with the assistance of counsel. In addition, we rejected defendants argument that his sentence in this case may not run consecutive to the sentence he received for the 1969 murder. We remanded the matter to the trial court for resentencing. (F045999.)^[3]

Defendant was resentenced on August 4, 2006. At sentencing, defense counsel made a motion asking the court to strike all of defendants remaining prior-conviction strikes because they were remote in time, having occurred in 1955.

The trial court denied the motion to strike defendants prior-conviction strikes, finding that the prior convictions were serious and defendant has a lengthy record. The court sentenced defendant to a term of 25 years to life, plus one year for the prior prison term enhancement. This term was ordered to run consecutive to the sentence for his murder conviction.

Defendant filed a timely notice of appeal.

DISCUSSION

I. Romero Motion

In 1955, defendant approached the victim with a gun and pointed it at her. He pushed her into her car and drove off. He hit the victim in the head with the gun and took 80 cents from her. He drove the victim to a dark street and raped her. He was convicted of forcible rape, robbery, kidnapping, and burglary. These prior felony convictions formed the basis for the four strikes found true by the jury. The burglary prior-conviction strike was reversed by this court and, due to the election by the People to not retry that prior conviction, it was no longer available to the trial court at sentencing.

At resentencing, as previously noted, defendant filed a Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion asking the trial court to strike his remaining charged prior convictions in furtherance of justice. He argued to the court that his current conviction was one of mere possession and nothing more. He claimed that the priors were not valid as prior serious felony convictions under the Three Strikes Law. Defendant asked the court to use its discretion to strike the priors because they were significantly old, having occurred in 1955.

The court denied the motion to strike, finding that the prior convictions were very serious and defendant had a lengthy, lengthy, lengthy record of criminal conduct, both misdemeanor and felony conduct, many of which are crimes of violence. I just dont see any justification in this case to strike any strikes.

Now on appeal, defendant claims the trial court abused its discretion in failing to strike the prior convictions in furtherance of justice. He argues that the current offense is a minor offense, the strikes were remote, the strikes were closely connected and arose from a single act, and the sentence of 25 years to life is cruel and/or unusual punishment.

[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.) 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.)

[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 (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. (People v. Williams (1998) 17 Cal.4th 148, 161.)

First, defendant argues that his current conviction is of an exceedingly minor nature because it is a malumprohibitum offense imposing strict criminal liability and lengthy prison sentences are inappropriate for strict liability offenses. We disagree. The possession of a weapon of any kind in a penal institution is serious because it carries with it a strong potential for harm to others. In this instance, defendant, on trial for murder, had possession of a razor blade in a public courtroom. We see a great potential for harm and would not characterize the conviction as exceedingly minor. In addition, the trial court is required to consider all of the circumstances and not merely focus on a single factor such as the nature of the offense in determining if it should or should not strike prior serious felony conviction strikes. (People v. Carmony, supra, 33 Cal.4th at p. 379.)

Second, defendant argues that his prior convictions are remote because they occurred over 50 years ago. He contends that his prior strike convictions are ancient history and were suffered when he was a youth, and an offense committed that long ago says little about his current prospects. He claims that although he did have a history of violence in the distant past, his current criminal behavior is not serious or violent.

Again, we disagree. Defendant is an exemplar of the revolving door career criminal to whom the Three Strikes law is addressed. [Citation.] (People v. Carmony, supra, 33 Cal.4th at p. 379.)

We adopt the Peoples recitation of defendants criminal record as accurate: He has been convicted of at least 12 felony convictions (including murder, rape, robbery, kidnapping, and first-degree burglary) and at least eight violations of probation or parole since 1955. And, his criminal career actually began in 1951 where he was eventually sent to the California Youth Authority in 1953. [Citation to record.]

In 1955, he was convicted of first degree robbery, aggravated kidnapping, forcible rape, and first degree burglary for which he received a 13-year prison term. He was paroled in late 1968, violated in February 1969, and was released again in October 1969. He raped and murdered Wilma M. in December 1969 -- which went unsolved for nearly 30 years (case numbers F040806 and F045726). [Citation to record.]

In 1970, he was convicted of felony assault with a firearm and being a felon in possession of a firearm. He was paroled in 1974, but was again convicted of being a felon in possession of a firearm in 1975. He was paroled in October 1979, but violated parole in April 1980. In 1983, he was again convicted of being a felon in possession of a firearm and sentenced to prison for two years. [Citation to record.]

In 1989, he was convicted of felony petty theft with priors and felony failure to appear for which he was granted a term of probation. In 1998, he was convicted of failing to register as a sex offender for which he was sentenced to 32 months in prison. In 2002, he was convicted of first degree murder which occurred in 1969. [Citation to record.] Moreover, between 1980 and 1995, he was convicted of at least 10 misdemeanor offenses. [Citation to record.]

We do not find that the age of defendants prior convictions helps his argument. In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on. To be sure, a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as washing out. [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways. Where, as here, the defendant has led a continuous life of crime after the prior, there has been no washing out and there is simply nothing mitigating about a [50+]-year-old prior. Phrased otherwise, the defendant has not led a legally blameless life since the [1955] prior. [Citations.] Far from being washed out, this prior was dyed in. [Citation.] (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)

Third, defendant argues that his strikes were so closely connected as to have arisen from a single act and the trial courts failure to strike was an abuse of discretion.

The California Supreme Court has suggested that it might be an abuse of discretion under section 1385 to fail to strike a strike where more than one conviction arises from the same act. (People v. Sanchez (2001) 24 Cal.4th 983, 993; People v. Benson (1998) 18 Cal.4th 24, 36.)

In People v. Benson, supra, 18 Cal.4th 24 the California Supreme Court held that the fact that a conviction may have previously been stayed pursuant to section 654 may nevertheless constitute a strike for purposes of the Three Strikes Law. (Id. at pp. 26, 29-33.)

Defendants prior convictions, although arising from one incident, arose from multiple acts and thus could properly be used as separate strikes. These crimes were extremely serious and involved distinct activities relating to the separate crimes of kidnapping, robbery, and rape. The trial court did not abuse its discretion in not striking one or more of the strikes.

Fourth, defendant contends that his punishment is cruel and/or unusual. Defendant has waived this argument by failing to raise it below. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.)

II. Imposition of a Consecutive Term

The trial court ordered that the sentence of 26 years to life in this case be served consecutively with the life sentence imposed for the 1969 murder.

Defendant contends that his indeterminate sentence in this case may not run consecutively to the sentence he received for his conviction of the 1969 murder because when he committed the murder the authorized sentence was life imprisonment with parole eligibility after the service of seven years. In 1969, the law stated that the seven-year minimum term could not be lengthened by the imposition of any additional consecutive sentences. Thus, defendant argues that his sentence in this case must be merged, under the merger rule of section 669 as it existed in 1969, with his life sentence for murder. He argues that any other interpretation of the law would violate the ex post facto clause.

Defendant acknowledges that he raised this identical claim in his prior appeal (F045999) and we rejected it, citing various authorities, including People v. Helms (1997) 15 Cal.4th 608, and People v. Boyce (1982) 128 Cal.App.3d 850. He raises his challenge again for the asserted purpose of ensuring his federal claim is properly preserved.

As previously noted, we have taken judicial notice of our case F045999. Our determination that a consecutive sentence is appropriate here has not been altered from our previous decision in this case, and our previous opinion is law of the case. Accordingly, we need not set forth our analysis again.

DISPOSITION

The judgment is affirmed.

__________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

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CORNELL, J.

____________________________________

DAWSON, J.

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^[1]Defendant was not arrested for the 1969 murder until January of 1999.

^[2]All future code references are to the Penal Code unless otherwise noted.

^[3]We have granted defendants request to take judicial notice of the courts file in F045999.