Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Douglas M. Elwell, Judge, Super.Ct.No. FVA022294.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Alleging abuse of discretion in the trial court’s order declining to strike a prior “strike,” defendant Donald Douglas Casillas (defendant) appeals his 25-year-to-life prison sentence. We will affirm.
FACTS AND PROCEDURAL HISTORY
In 1992, defendant was convicted of robbery and forcible sexual penetration (Pen. Code §§ 211, 289) after he broke into a neighbor’s home and beat and sexually assaulted her before robbing her. Both convictions apparently also included great bodily injury enhancements. (Pen. Code, § 12022.7.) Defendant was released from prison in December 2002, after serving 10 years of a 20-year sentence (plus four months for a parole violation) for these offenses. Nineteen months later, on July 4, 2004, defendant was arrested for possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
On September 8, defendant pled guilty to possession of a controlled substance and admitted to having suffered two prior “strikes.” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) In exchange, pursuant to the provisions of Penal Code section 1000, the court deferred entry of judgment and referred him to a drug treatment diversion program, “Peace in the Valley.” Terms of the plea agreement specified that he was to successfully complete the program and was to violate no law. Defendant confirmed in writing and orally in open court his understanding that if he violated the terms he faced a third-strike sentence of 25 years to life. As part of the plea agreement, defendant reserved the right to file a Romero motion should he fail the diversion program and the criminal proceedings be reinstated. When defendant entered the Peace in the Valley diversion program, he told the counselor that he was facing 25 years to life in prison as a third-strike offender. On November 3, 2004, defendant’s random drug test was positive for amphetamine and methamphetamine and he was terminated from the program. On December 14, 2005, he completed the Substance Abuse Treatment and Recovery program for the second time. On August 25, 2006, after a protracted probation violation hearing, the court determined that defendant had violated the terms of his drug treatment program by using a controlled substance.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On December 21, 2006, defendant filed a Romero motion asking the court, in the interests of justice, to dismiss his prior strike offenses. The motion argued that defendant was a drug addict whose strike offenses were “remote in time” and had occurred in a single continuous course of action. His other crimes—misdemeanor petty theft, misdemeanor and felony receipt of stolen property, and misdemeanor obstructing an officer—were all related to his addiction; his current offense involved only a small amount of drugs (0.13 grams of methamphetamine) and no violence and no loss to any other victim; he had served 10 years of his sentence without incident; he was remorseful about his past offenses and willing to rehabilitate himself. Finally, the Penal Code section 1000 diversion program had presented him with only an “apparent life-preserver” and an “illusory” choice and now he faced a life sentence for a “misdemeanor offense without a victim.” The People filed an opposition to defendant’s motion arguing that under the criteria set forth by the court in People v. Williams (1998) 17 Cal.4th 148 (Williams), defendant’s priors should not be stricken.
On February 2, 2007, the court heard argument on the motion. Defense counsel talked at length about the particulars of defendant’s background and character, emphasizing his severe addiction to drugs. Counsel argued that defendant’s problems all stemmed from his addiction and that he therefore fell outside the spirit of the “Three Strikes” law. His most recent offense, counsel suggested, represented a “mistake” of a “trivial nature,” and a “relapse” to be expected of any addict. He was not a violent offender like the defendant in Williams and was not the kind of person the people of California were thinking of when they passed the law.
The prosecutor countered that the district attorney himself had carefully considered the matter before proceeding to trial and believed that, like the Williams defendant, this defendant posed an unacceptable risk to public safety. Defendant was the kind of person to whom the Three Strikes law was directed; he was like the offender in the Polly Klaus kidnapping and murder case, which had given rise to the law. The prosecutor recited the particulars of defendant’s 1992 crimes and argued that even if he was under the influence of methamphetamine at the time, his 10 years in prison appeared to have made little difference in his behavior. Within two years of release, he was again using illicit drugs and not even the prospect of life in prison had motivated him to control his addiction.
The court prefaced its decision to deny the Romero motion by explaining that it saw very little middle ground between the options of striking all or none of defendant’s prior strikes. It was true that defendant’s two priors were committed on the same occasion, but they were two separate crimes neither of which was necessary for the commission of the other. It was also true that defendant was addicted to drugs, but after 10 years in prison and help from at least two programs plus the restrictions of being on parole and the unusual opportunity for a diversion program in lieu of prison, he was right back using within a year and a half after his release. In view of these numerous failures—not just the most recent one—the court felt that, under the guidelines established by the Williams case, striking the priors and reinstating defendant into the diversion program was neither indicated nor appropriate.
On March 9, in accordance with the terms of the plea agreement, the court sentenced defendant to an indeterminate term of 25 years to life in state prison. This appeal followed.
DISCUSSION
Defendant’s two main arguments are that the trial court (1) abused its discretion in denying his Romero motion, and (2) misunderstood the scope of its discretion to strike only one of his prior strikes.
We do not address defendant’s attempt to preserve for a possible future challenge to the constitutionality of what he thinks is a cruel and unusual sentence for “the victimless crime of simple possession of a personal use quantity of a controlled substance.” Despite this minimalist characterization of his offense, it is defendant’s recidivism—not just his current crime, as he well knows—that the law addresses. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979-980.)
Standard of Review and Three Strikes:
It is well settled that a trial court has discretion to strike a prior conviction that constitutes a strike under the Three Strikes law. (Williams, supra,17 Cal.4th at pp. 151-152; Romero, supra, 13 Cal.4th at pp. 529-530; People v. Cline (1998) 60 Cal.App.4th 1327, 1337 (Cline).) The discretion to strike a prior strike is broad but limited in the sense that it must further the interests of justice. In other words, the rights of society as well as those of defendants must be considered when determining whether striking a prior conviction that constitutes a strike under the Three Strikes law is appropriate. (Williams, supra, at p. 161; Romero, supra, at p. 530; Cline, supra, at p. 1337.)
When a trial court is faced with a motion to dismiss a strike in the interests of justice, it must determine whether, in light of the nature and circumstances of the present felony and the prior convictions, and the particulars of a defendant’s background, character and prospects, he may be deemed to be outside the spirit of the Three Strikes law, in whole or in part, and thus should be treated as though he had not previously been convicted of one or more serious or violent felonies. (People v. Garcia (1999) 20 Cal.4th 490, 498–499 (Garcia); Williams, supra, 17 Cal.4th at p. 161.)
A decision to strike a prior conviction that constitutes a strike is reviewed for abuse of discretion. (Williams, supra, 17 Cal.4th at pp. 152, 158-159, 162; Romero, supra, 13 Cal.4th at pp. 531-532.) The standard is deferential but not empty. The appellate court considers whether the decision of the trial court falls outside the bounds of reason under the applicable law and the relevant facts. (Williams, supra, at p. 162.)
Analysis:
Our review of the record shows that in making its determination the court here properly considered the particular facts of defendant’s background, character and prospects and we cannot say that its decision to deny defendant’s motion to strike his prior strikes fell outside the bounds of reason. As the trial court correctly determined, defendant’s background contained nothing that would support a conclusion that he fell outside the spirit of the relevant law. He had been using drugs since he was 18 years old. When he was picked up on the possession charge, he had been out of prison for only 19 months after serving 10 years of a 20-year sentence for two serious and violent felonies. Given an almost-unheard-of further opportunity at drug rehabilitation in the form of the diversion program, he failed the random screening test with an unusually high level of methamphetamine in his system. This is despite the fact that he was fully aware of his precarious legal status as a third-strike offender. Defendant’s background showed that he was determined to continue using drugs whatever the penalty.
Similarly, defendant’s character and prospects as revealed by his criminal record were poor. His first recorded crimes occurred in 1983 and continued right up until his arrest while on parole. His offenses included, as defense counsel admitted in both the written motion and in oral argument before the trial court: petty theft (Pen. Code, § 488), petty theft with a prior (Pen. Code, § 666), two separate incidents of receiving stolen property (Pen. Code, § 496), and obstruction of a public officer (Pen. Code, § 148). His career had culminated in the 1992 violent and serious crimes of robbery and sexual assault (Pen. Code, §§ 211, 289). It is true that his prior strikes were remote in time, but he had been in prison for 10 years—without opportunity to commit more offenses. Almost as soon as he was free, he returned to his old ways.
It is true that defendant’s current underlying offense, considered in isolation, was not a serious or violent crime; he was apparently arrested at a Fourth of July celebration with only a small amount of methamphetamine in his possession. But just a short time later and while on diversion he chose to ingest an amount of drug that resulted in a very high level. As we have explained, a court deciding whether to strike a prior conviction that constitutes a strike may not consider a recidivist defendant’s current offense in isolation. It must consider it in the context of his whole record and the rights of society. (Williams, supra, 17 Cal.4th at p. 161; Romero, supra, 13 Cal.4th at p. 530; Cline, supra, 60 Cal.App.4th at p. 1337.) The fact that while on parole and in diversion defendant chose to ingest an amount of drug that resulted in a very high level demonstrates that his level of control was so poor as to constitute an unacceptable risk to society. The trial court did not abuse its discretion in so concluding.
We do not have either the police report or laboratory results from the possession charge in this record, but defense counsel’s statements to this effect were not disputed by the prosecutor and were apparently accepted by the court. Later, when he failed the drug screening test in the diversion program, the expert in charge of the testing laboratory testified that defendant’s test result was unusually high.
Defendant also argues that the court misunderstood the scope of its discretion to strike only one of his offenses. The record does not support his argument. It is true that a trial court in a Three Strikes case has discretion to strike prior strikes on a count-by-count basis. “A court might therefore be justified in striking prior conviction allegations with respect to a relatively minor current felony, while considering those prior convictions with respect to a serious or violent current felony.” (People v. Garcia, supra, 20 Cal.4that p. 499.)
The court here gave no indication that it thought it could not strike just one of defendant’s prior strike convictions, only that it could not find grounds upon which to do so. This means that there was nothing in the nature of the crimes themselves, which although committed on the same occasion, were two separate, unrelated offenses, and nothing in defendant’s character, background, or prospects that would justify the court’s dismissing one and not the other.
DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.