P. v. Thigpenn

Filed 3/14/07 P. v. Thigpenn CA4/1

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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.

Marcus Odell Thigpenn was convicted of attempted carjacking and making criminal threats. It was found true that he had served a term of imprisonment within the meaning of Penal Code^[1]sections 667.5, subdivision (b), and 668, that he had a serious felony prior within the meaning of sections 667, subdivision (a)(1), 668, 1192.7, subdivision (c), and that he had a strike prior within the meaning of sections 667, subdivisions (b) through (i), 668 and 1170.12. Thigpenn was sentenced to 10 years in prison. He appeals, contending the trial court abused its discretion when it failed to dismiss his 1999 robbery strike prior, and the court abused its discretion by failing to consider a mitigating factor.

FACTS

On the night of January 20, 2005, and into the next day, appellant and a girlfriend used drugs. On the evening of January 21, 2005, the two argued in the girlfriend's car. Upset, appellant got out of the car and hit it with both hands. Soon after, appellant was approached by a group of men and a fistfight ensued. After the fight, appellant approached another group of men. As he was walking towards them, appellant pulled out a plastic gun and held it at his side. In response, one of the men, Roberson, pulled his gun, causing appellant to drop his gun and retreat. Appellant exchanged words with Roberson and then turned and ran down the street. Appellant eventually stopped and lay down in the street.

As Georgia Gaines approached appellant's location in her car, she noticed him lying in the street ahead of her. She swerved to the left to avoid appellant and stopped at the red light. While stopped, appellant began to climb into her car. Gaines screamed, sounded the horn and tried to lock the door as appellant entered, knelt on the passenger seat and leaned forcefully into her. As the two fought over the keys, appellant repeatedly yelled: "Give me this car. Give me the car, bitch. Put it in neutral." "Give me the fucking car." "I am going to kill you, bitch."

Roberson and his friend Donald ran to the car and attempted to remove appellant. The two men successfully pulled appellant out through the passenger door, even as he continued to demand the car and threaten Gaines. Appellant was able to get free from the two men and got back into the car. Appellant again fought with Gaines for the keys, demanded the car and continued to threaten her. Finally, the two men were able to pull appellant out of the car a second time, and Gaines was able to drive away.

DISCUSSION

I

Appellant argues the trial court abused its discretion under section 1385 when denying his Romeromotion to dismiss his strike prior.

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, the California Supreme Court held that section 1385, subdivision (a), permits "a [trial] court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law." The Romero court explained that the exercise of discretion under that subdivision is limited by the "amorphous" concept of "furtherance of justice," which requires consideration both of the constitutional rights of the defendant and the interests of society represented by the People. (Romero, supra, 13 Cal.4th at p. 530.)

Ultimately, the standard for dismissing a strike in furtherance of justice is whether the defendant is outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 159-161 (Williams).) In Williams the California Supreme Court explained that "in 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 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." (Id. at p. 161.)

A trial court's decision on whether to strike a strike prior is reviewed under the abuse of discretion standard. (Romero, supra, 13 Cal.4th at p. 530.) "This standard is deferential. [Citations.] But it is not empty. . . . [I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (Williams, supra, 17 Cal.4th at p. 162.)

Here the court examined appellant's background, the current crime, appellant's prospects and whether appellant fell within the spirit of the three strikes law. The court stated it reviewed the letters from appellant's family and friends, appellant's sentencing statement (which incorporated two mental health reports, one from 2003 and the other obtained specifically for sentencing purposes), appellant's juvenile record, the current probation report and the probation reports from his two prior felonies, the robbery and petty theft with a prior. The court noted appellant's relatively young age, the recentness of his criminal history and his "rather disturbing record of violence and violent, assaultive behaviors," which put people at risk. Finally, the court considered appellant's prospects for the future, noting comments from both the 1999 probation report and the current mental health examination, which stated a lack of optimism for appellant's future and that his prognosis did not look good. After considering these factors, the court did not believe appellant fell outside the spirit of three strikes and denied the Romero motion.

In refusing to strike appellant's strike prior, the court did not abuse its discretion. Its decision was reasonably based on considerations of appellant's criminal history, background, prospects and the risk his violent behavior continues to pose to society. Appellant's strike prior involved violence. Appellant assaulted and robbed a fast food restaurant cashier.

Both the incidents contained in appellant's juvenile record were also violent in nature. The first incident was a fight in high school where appellant pushed one staff member to the ground and had an errant blow hit another staff member in the face. The second incident involved appellant lashing out with a four-inch knife in an attempt to stab a man in a Denny's restaurant. The current offense involved the use of violence in an attempt to take the car from Ms. Gaines. The last time appellant was on probation, following his 1999 robbery conviction, it was less than a year before he committed the theft which resulted in his prior prison term and appellant was on active parole at the time he committed the current offense. Finally, appellant has serious problems with drugs and alcohol abuse, which he has not been able to check. The court did not abuse its discretion under section 1385 when denying the Romero motion to dismiss appellant's strike prior.

II

Appellant contends the trial court abused its discretion by failing to consider a mitigating factor when denying his request for the lower term.

California Rules of Court, rule 4.420(b), provides in part: "Circumstances in aggravation and mitigation shall be established by a preponderance of the evidence. . . . Selection of the lower term is justified only if, considering the same facts, the circumstances in mitigation outweigh the circumstances in aggravation." Determination as to the appropriate term is within the trial court's broad discretion and must be affirmed unless there is a "showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) "Absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence." (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888.)

Appellant argues the trial court failed to consider as a circumstance in mitigation that "defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime." (Cal. Rules of Court, rule 4.423, subd. (b)(2).) However, during sentencing the court did note appellant's mental condition and had just finished hearing the Romero motion where the issue of appellant's mental condition was raised. There was no explicit statement by the court it had not considered appellant's mental condition in mitigation when pronouncing sentence. Thus, appellant has not shown the court failed to discharge its legal duty. The court did not abuse its discretion when sentencing appellant to the middle term.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.

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