P. v. Wilson

Filed 3/15/07 P. v. Wilson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol Rehm, Judge. Affirmed with directions.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Michael Wilson appeals from the judgment entered following his pleas of no contest to count 1 assault by means likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)), two counts of misdemeanor vandalism (Pen. Code,  594, subds. (a), (b)(2)(A); counts 2 and 5), count 3 felony vandalism (Pen. Code,  594, subds. (a), (b)(1)), and count 4 battery against a person with whom appellant had a dating relationship (Pen. Code,  243, subd. (e)(1)) with an admission that he suffered a prior felony conviction (Pen. Code,  667, subd. (d)). The court sentenced appellant to prison for four years.

We hold the trial court properly refused to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior felony conviction. In light of the nature and circumstances of appellants current felony offenses and the qualifying prior conviction (a 2001 terrorist threats conviction), and in light of the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the prior conviction. We also hold the trial court must amend the abstract of judgment to reflect that appellants conviction on count 1 was for assault by means likely to produce great bodily injury, and not assault with a deadly weapon.

FACTUAL SUMMARY

The record reflects that prior to July 30, 2005, appellant and Tianne Batiste had been dating and appellant frequently stayed at her Los Angeles apartment. On July 30, 2005, the two argued and Batiste asked appellant to leave her apartment. Appellant did, but returned and said he wanted his belongings. Appellant knocked hard on Batistes wooden front door, then kicked it in, damaging the door jamb. He grabbed Batiste by the hair and she fell, apparently hitting her head.

On August 8, 2005, the two again argued in the apartment. Appellant grabbed Batiste by her hair and forced her to sit in a chair. He then bit the left side of her face, injuring her cheek and lip. Batiste, and later appellant, left the apartment. Batiste returned to the apartment and locked the wooden front door and a metal door she had installed. Appellant returned, knocked hard on a door, and asked to come inside. Appellant said he wanted his belongings. Appellant eventually forced open the metal door, damaging it. The probation report reflects, under a heading for victim information, LAPD and [b]roken window to LAPDs car, broken white iron.

CONTENTION

Appellant contends the trial court erroneously refused to strike his only Three Strikes law prior felony conviction. In a supplemental letter brief, appellant contends the abstract of judgment must be amended to reflect that his conviction on count 1 was for assault by means likely to produce great bodily injury, and not assault with a deadly weapon.

DISCUSSION

1. The Trial Court Did Not Err By Refusing to Strike Appellants Prior Conviction.

a. Pertinent Facts.

The early disposition report prepared for an August 17, 2005, hearing reflects as follows. Appellant was born in 1975. He suffered a 1994 conviction for marijuana possession. He also suffered a 1996 conviction for driving with a suspended or revoked license, a misdemeanor, and the court placed him on probation for two years. In 2001, appellant suffered a conviction for terrorist threats (case No. SA042990) and the court placed him on felony probation for three years. Appellant had six outstanding traffic warrants. According to the probation officers evaluation, appellant had a moderate criminal history.

The report also reflects appellant was unemployed and had a controlled substance abuse problem. According to the probation officers evaluation, appellant was supposedly employed. Batiste suffered property damage to her door, and appellant broke a police car window.

On November 3, 2005, appellant entered the previously mentioned no contest pleas and admitted he had suffered a prior felony conviction under the Three Strikes law based on his 2001 conviction for terrorist threats.

On November 23, 2005, appellant filed a request to dismiss, under Penal Code section 1385, his prior felony conviction. In the written request, appellant argued as follows. First, as to the nature of the offense, there were no lasting injuries. According to Batiste, appellant was depressed over the death of a friend and was preparing for a funeral. He was also concerned about the possible loss of his apartment. Batiste had since learned that appellant already had lost his apartment. Batiste questioned appellant about their relationship, the death of his friend, and why appellant was acting sullen, and this led to the argument resulting in the present charges.

Second, appellant would receive a lengthy sentence even absent the prior felony conviction since, according to appellant, his maximum exposure without the prior felony conviction was four years eight months in prison. Third, as to his criminal record, the 2001 conviction resulted when the victims mother, not the victim, called the police. Appellant pled no contest in that case, over the objection of his counsel at the time, and appellant completed probation successfully. Pursuant to his negotiated plea in that case, he had been entitled to move to reduce the offense to a misdemeanor, but never made the motion.

Fourth, as to appellants social history, appellant was a 30-year-old man who had lived in Los Angeles all his life. He graduated from high school and had attended one year of community college. He had a stable relationship with his father and grandmother, and he credited her with most of his upbringing. Appellant was holding two jobs, one with a plumbing company and another with a real estate company. Appellant would be welcomed back at his jobs once he was released from custody.

At the November 23, 2005, hearing, appellant argued as follows. His 2001 conviction arose from an incident involving an ex-girlfriend. As to the instant offenses, Batiste was present in court and had submitted a letter explaining the circumstances. Batiste did not feel the present incident had been life-threatening, and she was not afraid of appellant. Appellant had been in custody in the present case for 108 days, and this was a wake-up call for him. Appellant personally told the court he had learned his lesson and would be gainfully employed when released from custody.

The prosecutor opposed dismissal of the prior felony conviction. The prosecutor argued the 2001 conviction, like the present case, involved domestic violence, and the 2001 conviction should have been a sufficient wake-up call for appellant.

Batiste told the court the following. Her first instinct was to call the police, but once the situation was in control, she no longer felt threatened by appellant. There were two incidents but they occurred within a week. Batiste suggested she and appellant were at fault for what had occurred. She had noticed changes in appellant since she first met him.

The court indicated it had read Batistes letter. The court cited as guiding precedent People v. Superior Court (Romero) (1996) 13 Cal.4th 497, People v. Williams (1998) 17 Cal.4th 148, and People v. Garcia (1999) 20 Cal.4th 490. The court also noted the following. It was only when Batiste felt everything was under control that she did not feel threatened. Many of the cases in which women were homicide victims involved domestic violence. Appellants prior criminal record indicated he had serious problems with controlling his behavior. Based on appellants prior contacts with the criminal justice system and his actions in the present case, it was clear to the court that appellant was not outside the spirit of the Three Strikes law. Appellant had demonstrated he could not or would not comport his behavior to the requirements of society. The court denied appellants request to dismiss the prior felony conviction.

b. Analysis.

The trial court is presumed to have read the probation report (Pen. Code,  1203, subd. (b)(3); Evid. Code,  664) and appellants request to dismiss the prior felony conviction, and the court heard argument from the parties. If we accepted appellants claims, we would be holding that the courts denial of appellants request to strike the prior felony conviction was irrational, capricious, or patently absurd (People v. Delgado (1992) 10 Cal.App.4th 1837, 1845; In re Arthur C. (1985) 176 Cal.App.3d 442, 446) and without even a fairly debatable justification. (People v. Clark (1992) 3 Cal.4th 41, 111.) Based on the record in the present case, we cannot come to that conclusion. In light of the nature and circumstances of appellants current felony offenses, the qualifying prior felony conviction, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the prior felony conviction, and may not be treated as though he previously had not suffered it. (Cf. People v. Williams, supra, 17 Cal.4th at pp. 161-164.)

We hold the trial courts order refusing to strike the Three Strikes law prior felony conviction was sound, and not an abuse of discretion. (Cf. People v. Williams, supra, 17 Cal.4th at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.) None of the cases cited by appellant, or his argument, compel a contrary conclusion.

2. The Abstract of Judgment Must Be Amended as to Count 1.

a. Pertinent Facts.

The information alleged as to count 1 that appellant committed assault by means likely to produce great bodily injury, in violation of Penal Code section 245(a)(1) . . . . (Some capitalization omitted.) On November 3, 2005, during the taking of the pleas, the prosecutor asked appellant how he pled to the charge of violating Penal Code section 245 subdivision (a) subdivision (1)[,] and the prosecutor added, [i]t is a felony as set forth in count 1 of [the] information . . . . Appellant replied, No contest. However, the abstract of judgment reflects as to count 1 that appellant was convicted of assault w/deadly weapon.

b. Analysis.

There is no dispute the abstract of judgment must be amended to reflect that, as to count 1, appellant was convicted of assault by means likely to produce great bodily injury, and not assault with a deadly weapon. (Cf. People v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3.) Appellant claims the issue is important because, of the two crimes, only assault with a deadly weapon may qualify as a prior felony conviction under the Three Strikes law in the event he commits a future felony. (People v. Banuelos (2005) 130 Cal.App.4th 601, 605.) We will direct the trial court to amend the abstract of judgment accordingly.

DISPOSITION

The judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting, as to count 1, that appellant was convicted only of assault by means likely to produce great bodily injury.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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