Opinion
A132572
07-31-2012
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DOUGLAS CHARLESON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. SC-171808A)
Defendant entered a negotiated guilty plea to all 54 counts charged against him: 18 counts of making a fictitious instrument (Pen. Code, § 476), 19 counts of commercial burglary (§ 459), five counts of identity theft with a prior conviction (§ 530.5 subd. (c)(2)), forgery of a driver's license (§ 470a), possession of a forged driver's license (§ 470b), receiving stolen property (§ 496, subd. (a)), unlawful activity with an access card (§ 484i, subd. (c)), making counterfeit bank notes or bills (§ 480), fraudulent acquisition of the personal information of 10 or more persons (§ 530.5, subd. (c)(3)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and unlawful display of registration or vehicle identification documents to a peace officer (Veh. Code, § 4462.5). He also admitted allegations of three prior convictions for identity theft (§ 530.5), a prior burglary strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and restricted probation eligibility due to specified prior convictions (§ 1203, subd. (e)(4)). Defendant then moved pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to dismiss and strike his 1989 burglary robbery conviction. The motion was denied, and the trial court imposed a total sentence of eight years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant claims that the trial court erred by denying his request to strike his prior conviction. We find no abuse of discretion in the trial court's refusal to dismiss or strike the prior conviction, and affirm the judgment.
STATEMENT OF FACTS
In light of defendant's plea and the issue raised on appeal we will concisely recite the facts pertinent to the underlying convictions to the extent necessary to resolve his claim of erroneous denial of his motion to strike the prior conviction. The facts are based on the evidence presented at the preliminary hearing.
Defendant and his wife Renee Charleson were occupants of the Days Inn motel in Novato from July 1, to August 27, 2010. A few days before August 27, 2010, they were moved into room 209 of the motel. Defendant also paid for the room directly above, 210, which was occupied by codefendant John Hoffman, but notified the desk clerk on the morning of August 27, 2010, that he "would not be responsible" for that room any longer.
For the sake of clarity and convenience we will refer to defendant's wife Renee Charleson by her first name.
At around 8:00 that evening, officers of the Novato Police Department contacted defendant and conducted a probation search of rooms 209 and 210 at the Days Inn motel; Renee and Hoffman were also present. Found in the rooms, and in defendant's personal possession, were a vast array of items that indicated an extensive scheme of theft, fraud and counterfeiting, including: numerous "fraudulent California driver's licenses" with defendant's photograph, but bearing the names of third parties; an extraordinary number of blank checks, bank statements and other financial records, blank credit cards, prepaid gift cards, debit cards and credit cards issued to third parties; stolen personal and payroll checks payable to third parties; identification and Department of Motor Vehicles documents belonging to third parties; financial records, social security numbers, addresses, and account information of clients of a financial group; washed or bleached counterfeit bills in $50 and $100 denominations, and equipment used to manufacture counterfeit bills and fraudulent checks; lists of credit card and checking account numbers; laser and card photo printers, scanners and a credit card reader; a stolen pipe laser; a laptop accessory kit addressed to a third party; and third party tax documents. On a computer screen the officers observed file folders with displays of credit card numbers and expiration dates, along with images of "US currency" that "can be manipulated" and "printed out." Also discovered in the rooms were glass pipes with usable amounts of "methamphetamine inside," and a tin box that contained methamphetamine.
A pipe laser is a special type of laser that is used in construction; it is especially useful in assisting construction workers with the laying of pipe.
In the parking lot of the Days Inn, the officers located defendant's van, which bore a license plate that had been reported stolen. Assorted tools, a pipe laser, and another license plate that matched one found in room 209, were discovered inside the van.
Defendant admitted that he occupied room 209 with his wife, and paid the rent for room 210 where Hoffman stayed. He also stated that the items found in room 209 belonged to him, an admission that was corroborated by Renee.
Renee told the officers that she, defendant and Hoffman smoked methamphetamine from a pipe provided by defendant. She further stated that she observed defendant and Hoffman "making counterfeit money" and identification documents. The search of a room in a house where Renee had been staying resulted in the recovery of more gift cards and credit cards in defendant's name that Renee used to pay bills. Evidence was also presented that defendant passed checks stolen from third parties at various retail businesses.
DISCUSSION
Defendant's sole contention in this appeal is that the trial court erred by denying his request pursuant to section 1385 and Romero, supra, 13 Cal.4th 497, to dismiss and strike his January 1989 residential burglary conviction, which was based on his entry into a neighbor's residence in Mill Valley and theft of stereo equipment from two occupants. The record pertinent to the Romero motion provides a chronology of defendant's extensive, prolonged criminal history, in addition to the current convictions and the strike conviction. In a span of 30 years, beginning in 1981, he sustained 12 additional felony convictions, 12 misdemeanor convictions, and a juvenile adjudication of residential burglary. Two of his felony convictions, in 1994, and 2003, were for possession and possession for sale of controlled substances. Nine of the felony convictions for identity theft, receiving stolen property, and possession of a controlled substance, occurred in June of 2004. He was convicted of a felony theft offense in May of 2008, and most recently misdemeanor petty theft in March of 2010. Defendant was on probation when the present offenses were committed.
Defendant's personal history of intermittent drug and alcohol abuse, dating from 16 years of age, was also delineated. The record indicates that defendant suffered from periods of poly-substance abuse, interrupted by participation in residential drug addiction treatment programs, extended sobriety and successful employment history, but followed inexorably by relapse and repeated commission of criminal offenses.
Defendant was evaluated by Dr. Bruce Heller, a consulting psychotherapist, and Dayle Carlson, a Correctional Consultant to assess his suitability for probation and residential drug rehabilitation at the Delancey Street facility, rather than state prison. Both experts reviewed defendant's personal and criminal history, and interviewed him. In addition, Dr. Heller conducted a comprehensive psychological testing and evaluation of defendant.
Dr. Heller reported that defendant exhibits lack of coherent and logical thinking, particularly when he is engaged in substance abuse. Defendant suffers from alcohol, cocaine and methamphetamine dependence, recurrent episodes of depression, anxiety and agitation, and antisocial features in his personality. In the past, he received only superficial rehabilitation from the programs he was offered. According to Dr. Heller, instead of incarceration in state prison defendant requires a strong, structured, intensive, lengthy rehabilitative experience offered by Delancey Street, followed by individual psychotherapy, to resolve issues with rejection by his birth mother and emotional and physical abuse by his adoptive father.
Carlson agreed with Dr. Heller's assessment and opinion, but noted that defendant has only "superficial insight" into his substance abuse and emotional issues. Carlson noted that Delancey Street is designed to alter behavior and promote positive change, whereas the prison system merely entrenches negative behavior. Due to a lack of "violent tendencies" in defendant's previous criminal conduct, his positive, if temporary, response to treatment in the past, and expressed agreement to a lengthy commitment to Delancey Street, along with his more advanced age during which research suggests behavioral changes, Carlson proposed a suspended sentence of 21 years and eight months, probation, and a minimum five-year commitment to Delancey Street.
In support of his Romero motion and request for a probation disposition of the case, the defense also presented a drug and alcohol assessment report from Milton Paul of Bay Area Community Resources, which noted that defendant actively and successfully participated in an in-custody counseling program, and recommended Delancey Street as an appropriate treatment facility for him. Delancey Street tentatively accepted defendant into its program.
The clinical assessment did not advocate "treatment instead of court sanctions."
The probation report expressed agreement with the findings of Carlson and Dr. Heller. The report found "sufficient factors in mitigation to warrant striking the prior strike," and recommended that the court suspend imposition of a sentence of six years, eight months, and place defendant on supervised probation for five years on the condition, among others, that he successfully complete the Delancey Street Foundation program. The mitigating factors cited by the probation report in support of the recommendation were: criminality "less than the average case of its type," with only "$3,000 loss to four individual victims" from the cashed checks; the lack of any previous "appropriate transitional treatment and supervision" to effectuate lasting rehabilitation of defendant; his history of "no violence" and past success, even if impermanent, with treatment; his 22-year-old prior strike offense; his acceptance into the Delancey Street program; and, his willingness to waive credits and commit to a five-year term at Delancey Street. The report considered defendant an "excellent candidate for probation."
The trial court declined to strike the prior conviction. The court acknowledged "mitigating factors," but found "under the Romero case" and "in the interest of justice," striking the prior conviction "is not appropriate and warranted here." Probation was denied and an aggregate state prison term of eight years was imposed.
Defendant argues that the "trial court abused its discretion" by refusing to strike his "22 year old burglary conviction." He maintains that the court "did not properly weigh the relevant factors in reaching its decision," particularly his "old" prior strike, his "lack of history of violence," the "relatively minimal" nature of the current property offenses, his previous "model inmate" conduct, community support, Carlson's opinion that he "could be rehabilitated if he were sent to residential drug treatment at Delancey Street," and the evidence of his "prospects for success in the community" if given appropriate treatment.
" 'Pursuant to section 1385, subdivision (a), "in furtherance of justice," the trial court may dismiss an allegation or vacate a finding that a prior serious or violent felony conviction qualifies as a strike under the Three Strikes law. . . .' " (People v. Stone (1999) 75 Cal.App.4th 707, 716, citations omitted.) The court in Romero, supra, 13 Cal.4th 497, 530-531, provided guidance in the manner of the trial court's exercise of discretion to strike a prior conviction under section 1385, subdivision (a): " 'The trial court's power to dismiss an action under section 1385, while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be "in furtherance of justice." As the Legislature has provided no statutory definition of this expression, appellate courts have been faced with the task of establishing the boundaries of the judicial power conferred by the statute as cases have arisen challenging its exercise. Thus, in measuring the propriety of the court's action in the instant case, we are guided by a large body of useful precedent which gives form to the above concept.' [¶] 'From the case law, several general principles emerge. Paramount among them is the rule "that the language of [section 1385], 'in furtherance of justice,' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]" [Citations.] At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." [Citations.]' [Citation.]" (Italics omitted; see also People v. Superior Court (Pipkin) (1997) 59 Cal.App.4th 1470, 1476-1477.)
"The touchstone for that standard, where a trial court is asked to dismiss a prior serious or violent felony conviction which qualifies as a strike 'in furtherance of justice' pursuant to section 1385, subdivision (a), . . . is 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.' [Citations.]" (People v. Gaston (1999) 74 Cal.App.4th 310, 315, italics omitted, quoting from People v. Williams (1998) 17 Cal.4th 148, 161; People v. Garcia (1999) 20 Cal.4th 490, 503.)
" '[A] decision to strike a prior is to be an individualized one based on the particular aspects of the current offenses for which the defendant has been convicted and on the defendant's own history and personal circumstances. This approach allows the court to perform its obligation to tailor a given sentence to suit the individual defendant. But the court must also be mindful of the sentencing scheme within which it exercises its authority. In deciding to strike a prior, a sentencing court is concluding that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.' [Citation.]" (People v. Cluff (2001) 87 Cal.App.4th 991, 1004.)
In our review for an abuse of discretion, " ' "The governing canons are well established: 'This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]' [Citations.] . . . '[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and legal policies appropriate to the particular matter at issue.' [Citation.]" [Citation.] . . .' " (People v. Stone, supra, 75 Cal.App.4th 707, 716-717, quoting from People v. Gaston, supra, 74 Cal.App.4th 310, 314-315.) But, "an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) Further, "the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] . . . [¶] . . . '[I]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] . . . Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
We disagree with defendant's claim that the trial court failed to properly evaluate the pertinent factors in reaching its decision. As we read the record, the court carefully considered the particular aspects of the current offenses for which the defendant was convicted, as well as the age of the prior strike, his history and personal circumstances.
We also concur with the trial court that the current offenses are not comparatively inconsequential or minor. While the total amount of monetary loss to the victims was not great, the evidence adduced at the preliminary hearing shows conclusively that defendant and his confederates were engaged in a sophisticated, extensive scheme of identity theft, fraud, counterfeiting and unauthorized check and credit card use. That their criminal enterprise was apparently aborted by the intervention of the police before the harm to the victims became greater does not detract from the seriousness of the offenses considered in total.
While the only strike was remote in time, his 1989 burglary conviction was both preceded and followed by the repeated commission of offenses for a lengthy period both during or directly following release from the constraints of criminal justice supervision. In short, after his strike conviction defendant did not engage in the kind of "crime-free life" that would give significance to the remoteness of the prior conviction, but rather by repeated criminality - concededly with alternating periods of crime-free conduct. (People v. Gaston, supra, 74 Cal.App.4th 310, 321; see also People v. Barrera (1999) 70 Cal.App.4th 541, 554-555.) Defendant was also once again on probation when the current offenses occurred. "[A] prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as 'washing out.' [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813; see also People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 537.) Where, as here, the defendant has led a nearly incessant life of crime after the prior conviction, "there has been no 'washing out' and there is simply nothing mitigating about a 20-year-old prior." (People v. Humphrey, supra, at p. 813.) Even with a nonviolent past, defendant's recidivist history of a multitude of criminal offenses and probation or parole violations over the years suggests he continues to pose a cognizable risk to society that does not take him "outside the spirit of the Three Strikes law" to any degree. (People v. Williams, supra, 17 Cal.4th 148, 162-163; see also People v. Strong (2001) 87 Cal.App.4th 328, 338-339; People v. Stone, supra, 75 Cal.App.4th 707, 717; People v. Thornton (1999) 73 Cal.App.4th 42, 49.)
We are not persuaded that the trial court's failure to abide by the probation department's recommended disposition, or the opinions of Carlson and Dr. Heller, constitutes an abuse of discretion. The court considered, but was not required to follow, the recommendations in the report. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Downey (2000) 82 Cal.App.4th 899, 910.) Given defendant's history, the court had adequate reason to question his prospects of success with probation.
Finally, defendant was not subjected to an inappropriately lengthy term despite the trial court's refusal to strike the prior conviction. He was afforded leniency when the court imposed the lower term of two years for the principal term, and struck the prior prison term enhancement. Even with his sentence for principal term imposed on count four doubled, he received only an aggregate state prison sentence of eight years, far below the maximum possible 40-year sentence. (People v. Stone, supra, 75 Cal.App.4th 707, 716-717.) " '[A] defendant's sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.' " (People v. Gaston, supra, 74 Cal.App.4th 310, 315, quoting from People v. Garcia, supra, 20 Cal.4th 490, 500.) We conclude that the trial court did not abuse its discretion by refusing to dismiss or set aside the prior robbery conviction. (People v. Ortega (2000) 84 Cal.App.4th 659, 666.)
Accordingly, the judgment is affirmed.
By separate order filed this date, we deny defendant's petition for writ of habeas corpus (A134064), based on his claim of ineffective assistance of counsel in failing to file a petition for writ of mandate to review the denial of his request for the trial judge at the preliminary hearing to recuse himself due to a personal relationship with a complaining witness in the case. We find that defendant did not suffer prejudice from counsel's failure to seek review of the ruling.
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Dondero, J.
We concur:
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Marchiano, P. J.
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Margulies, J.