P. v. Herbert

Filed 3/6/06 P. v. Herbert CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Byron Q. Hebert shoplifted two Oral-B toothbrush kits from a Walgreens drug store. A jury convicted him of petty theft with a prior and he admitted a prior conviction within the meaning of the Three Strikes law. (Pen. Code, §§ 666, 1170.12.) Appellant was sentenced to prison for the two-year middle term, doubled pursuant to the Three Strikes allegation. We reject his contention that the court erred when it denied its motion to strike the prior conviction allegation.

A trial court has limited discretion under Penal Code section 1385 to strike a prior "strike" in the furtherance of justice. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) 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 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.) We review the court's denial of a motion to strike for abuse of discretion and will reverse only if the decision below was arbitrary, capricious or patently absurd. (Carmony at p. 378; People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.)

The trial court refused to strike the strike after citing appellant's "very active and numerous [sic.] criminal record." This reason fully justified the court's decision. Appellant has a lengthy criminal record that has left him only rarely outside of prison or local custody or the supervision of the courts. The serious felony that qualified as a strike was a 1987 robbery conviction and his criminal history has continued unabated since that time. Although he has not recently engaged in violent conduct, his prospects of reformation do not appear bright.

Appellant argues that the court did not fully consider his individualized characteristics when it denied his motion to strike the prior conviction. The court may not have discussed each and every factor that would have some bearing on its decision, but it is clear that it knew about and considered the circumstances that might weigh in appellant's favor--primarily, his poor health and the relatively minor nature of the current offense. The court did not act arbitrarily or capriciously when it implicitly concluded that these circumstances did not outweigh appellant's persistent criminality and did not bring him outside the spirit of the Three Strikes law. (See People v. Strong (2001) 87 Cal.App.4th 328, 338; People v. Gaston (1999) 74 Cal.App.4th 310, 321.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Katherine Stolz, Judge

Superior Court County of Los Angeles

______________________________

Kurt J. Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Michael R. Johnsen, Daniel C. Chang, Deputy Attorney s General, for Plaintiff and Respondent.

Publication courtesy of Ramona Real Estate Attorneys (http://www.mcmillanlaw.us/) And Ramona Lawyers Directory (http://www.fearnotlaw.com/ )