P. v. Smith
Filed 4/17/07 P. v. Smith CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ERIC SMITH, Defendant and Appellant. | D048514 (Super. Ct. No. SCD195372) |
APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis, Judge. Affirmed.
Eric Smith pleaded guilty to seven offenses: (1) evading an officer with reckless driving (Veh. Code, 2800.2, subd. (a)); (2) being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)); (3) driving under the influence of drugs (Veh. Code, 23152, subd. (a)); (4) hit and run driving (Veh. Code, 20002, subd. (a)); (5) resisting an officer (Pen. Code, 148, subd. (a)(1));[1](6) possession of drug paraphernalia (Health & Saf. Code, 11364); and (7) driving without a license (Veh. Code, 12500, subd. (a)). Smith also admitted allegations he suffered two prior serious or violent felony convictions within the meaning of the three strikes law ( 667, subds. (b) - (i), 1170.12) and two prior prison terms within the meaning of section 667.5, subdivision (b). Smith contends the trial court abused its discretion by (1) refusing to dismiss his prior conviction allegations, and (2) imposing a $10,000 restitution fine.
FACTUAL AND PROCEDURAL BACKGROUND
San Diego Police Officer Jose Mendez and his partner were driving in the downtown San Diego area on December 4, 2005, when they noticed a vehicle with expired registration tags. The officers attempted to stop the vehicle, driven by Smith. The vehicle slowed, but continued for several blocks while the officers followed with their patrol car's overhead lights activated. The vehicle stopped at a red light, and two female passengers got out of the vehicle. As Mendez approached the vehicle on foot, it accelerated through the intersection, running the red light. Mendez returned to his vehicle and pursued Smith's vehicle. Smith drove through several red lights and stop signs, disregarding pedestrians and traffic. Mendez eventually lost sight of Smith's vehicle, but then discovered Smith had crashed it into a building, causing property damage. Smith fled on foot.
Another officer in the area, Officer Joel Schmid, responded to a radioed description of Smith. Schmid noticed Smith walking down a street and asked him to stop. Smith ran and Schmid chased him, ordering Smith to stop several times. Schmid saw a metallic object in Smith's hand as he ran. Additional officers joined the chase, and eventually tackled Smith. Although Smith struggled against the officers, they subdued him and discovered the metallic object in his hand was a folding knife.
Officers found a cocaine pipe in Smith's possession. Smith did not have a valid driver's license at the time. A urine sample provided by Smith tested positive for cocaine.
Smith pleaded guilty to six misdemeanors and one felony. He admitted prior serious or violent felony conviction allegations, stemming from incidents in 1981 (when Smith was 16 years old) and 1991, within the meaning of sections 667, subdivisions (b) through (i), 1203, subdivision (e)(4), 1170.12, and 668, and two prior prison term allegations within the meaning of sections 667.5, subdivision (b), and 668. Under his plea agreement, Smith also waived his right to appeal "issues relating to [prior convictions] (under [Penal Code] sections 667[, subdivisions] (b)-(i) and 1170.12)." Smith requested the court dismiss his prior felony conviction allegations. The court refused his request and sentenced Smith to 25 years to life under the three strikes law. The court also ordered Smith to pay a restitution fine of $10,000 under section 1202.4, subdivision (b).[2]
DISCUSSION
I
Prior Felony Conviction Allegations
The trial court has the power to dismiss prior felony conviction allegations in the interest of justice. ( 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) In ruling whether to dismiss a prior conviction allegation under the three strikes law, the court must consider both the constitutional right of the defendant to receive a fair punishment and the interest of society in the fair prosecution of crimes. (Romero, at pp. 530-531.) In addition, the court "must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects, the defendant may be deemed outside the [three strikes] scheme's spirit, in whole or in part, and hence should be treated as though [the defendant] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) A court may deem a repeat offender outside the spirit of the three strikes sentencing scheme only in extraordinary circumstances. (People v. Carmony (2004) 33 Cal.4th 367, 378.) The three strikes law restricts a court's discretion in sentencing recidivists, and a court abuses its discretion in refusing to dismiss a prior conviction allegation only if "its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) For example, a court abuses its discretion when it is unaware of its power to dismiss a prior felony conviction allegation or considers impermissible factors (id. at p. 378), including court congestion.
Smith contends the trial court abused its discretion by refusing to dismiss his prior felony conviction allegations. It appears Smith waived the right to raise this contention on appeal because of the express language contained in his plea agreement. Neither party addressed this waiver in their appellate briefs. However, even if the waiver does not foreclose the issue on appeal, the court did not abuse its discretion by declining to dismiss Smith's prior felony conviction allegations.
Smith contends the court should have dismissed his prior conviction allegations because they were 24[3]and 14 years old, respectively. The age of these prior convictions, however, cannot be considered "extraordinary" because they are not stale, isolated events. Rather, the prior felony convictions are part of a continuous pattern of crime that includes not only the felony convictions, but multiple misdemeanors, violent acts, and parole and probation violations. Smith does not fall outside the spirit of the three strikes scheme. As the sentencing court noted, "[h]e is a recidivist, and he is dangerous; and he has proven that to us in all of his prior conduct and the conduct that brings him before the court [in this case]." The court did not abuse its discretion by refusing to dismiss Smith's prior felony conviction allegations.
II
Restitution
Under section 1202.4, subdivision (b), the trial court must impose a restitution fine for every person convicted of a crime unless it finds "compelling and extraordinary" reasons for not doing so. Section 1202.4 vests substantial discretion in the court to set restitution fines in any amount between $200 and $10,000. ( 1202.4, subd. (b)(1); People v. Mearns (2002) 97 Cal.App.4th 493.) The court may use the formula of $200 multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted. ( 1202.4, subd. (b)(2).) In addition, "the court shall consider any relevant factors including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime." ( 1202.4, subd. (d).)
Generally, contentions not raised in the trial court will not be considered on appeal because of fairness to the trial court and the opposing party, and the practical need for an orderly and efficient administration of the law. (E.g., People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Rogers (1978) 21 Cal.3d 542, 547-548; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.) Smith did not object to the amount of restitution in the trial court, and thus waived his right to appeal the restitution fine.
However, even had he objected to the amount of restitution in the trial court and thus preserved the issue for appeal, the court did not abuse its discretion in imposing a $10,000 restitution fine. Smith contends the maximum restitution fine, normally reserved for the most serious felonies, is an "unauthorized sentence" for Smith's relatively minor felony of evading police. A sentence is "unauthorized" when "it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Here, the restitution fine was the statutory maximum, not more, and thus is not unauthorized. Because Smith has not shown any compelling or extraordinary reason why the court should not have imposed the fine, the court did not abuse its discretion.[4]
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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[1] All statutory references are to the Penal Code unless otherwise specified.
[2] The court also imposed but suspended a restitution fine of $10,000 under section 1202.45, and restitution to the property damage victim under section 1202.4, subdivision (f) in an amount to be determined.
[3] Although both parties refer to Smith's 24-year-old convictions as "juvenile adjudications," he was apparently tried as an adult because he was sentenced to nine years in state prison.
[4] Smith also contends "[a]ny fail[ure] to object should be deemed the result of ineffective assistance of counsel." Because we hold the imposition of the restitution fine was not an abuse of discretion, any alleged ineffective assistance of counsel was not prejudicial.
