Opinion
E052350 Super.Ct.No. INF066835
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ANDREW GONZALEZ, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed with directions.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Steven Andrew Gonzalez appeals from a jury conviction for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). He argues the trial court abused its discretion in denying his motion to dismiss a prior strike conviction (Pen. Code, § 1385). Defendant also argues there was a clerical error in the calculation of his presentence custody credits under Penal Code section 4019.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Testimony presented at trial indicated defendant was questioned by security personnel at a casino on August 13, 2009, about 3:50 a.m., because he was acting suspiciously. Defendant was unable to provide identification, responded nervously, and wanted to leave. The security officers noticed he was holding onto something in his pocket and wanted him to remain. When the security officers indicated they wanted to search him, defendant ran. The security officers chased him through the casino parking lot, and defendant was seen removing a large baggie from his pocket and tossing it over his shoulder as he ran.
The security officers quickly apprehended and then handcuffed defendant. Officers noticed the lining of defendant's pocket was pulled out. The parking lot was searched by security personnel who, within five to ten minutes, found a plastic baggie containing 18 smaller baggies, each of which contained a white powdery substance. They also found a bag containing a green leafy substance.
A sheriff's deputy was then dispatched to the scene and tested the white substance in several of the baggies. The substance tested positive for methamphetamine. The baggies were also sent to a laboratory for testing, and a technician confirmed the presence of methamphetamine. An expert testified he believed defendant possessed the methamphetamine for sale.
Defendant was charged as follows: count 1, possession of methamphetamine for sale (Health & Saf. Code, § 11378); count 2, transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); and count 3, possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). It was further alleged defendant had one prior strike (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and one prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Count 3 was dismissed pursuant to Penal Code section 1118.1.
A jury found defendant not guilty of count 1, possession of methamphetamine for sale, but found him guilty of the lesser included offense of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The jury also found defendant guilty of count 2, transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). In a separate proceeding, the court found the two prior conviction allegations were true.
On November 5, 2010, defendant filed a motion seeking dismissal of his prior strike and a stay or dismissal of his prison prior pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. On November 19, 2010, the trial court denied defendant's motion and sentenced him to a total of seven years in state prison. To reach the total of seven years, the court imposed the middle term of three years on count 2 (transportation of methamphetamine), and doubled it to six years as a result of the prior strike. On count 1 (possession of methamphetamine), the court imposed the middle term of two years doubled to four years as a result of the prior strike, but stayed the term under section 654. The court then added a one-year term for the prison prior.
DISCUSSION
A. DENIAL OF MOTION TO DISMISS OR STRIKE
Defendant contends the trial court abused its discretion when it denied his motion seeking dismissal of his prior strike and prior prison term, because his background and the conviction in this case did not put him within the spirit of the "Three Strikes" law. In support of his argument, defendant cites his acquittal on the most serious charge (possession of methamphetamine for sale); as well as the circumstances of the current offenses, his family history, prior record, and methamphetamine addiction. To support his argument that the trial court should have dismissed his prior prison term, defendant cites the trial court's pretrial indication it would sentence him to six years in state prison in exchange for a guilty plea. Defendant also complains the court unfairly focused on a single statement in the probation report indicating he failed to take responsibility for the current offense when he said the methamphetamine was planted on him by a security officer. According to defendant, he made other statements during the same interview recognizing the severity of his methamphetamine addiction and accepting the consequences of his actions.
A trial court's denial of a motion to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) A trial court deciding whether to dismiss a prior strike conviction in furtherance of justice pursuant to section 1385, subdivision (a), "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." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant has the burden of demonstrating an abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 376-377.) There is a "'strong presumption' [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation." (In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be "'extraordinary'" for a career criminal to be deemed to fall outside the scheme of the Three Strikes law. (Carmony, at p. 378.) A decision to strike a prior conviction remote in time is an abuse of discretion where the defendant has not led a crime-free existence since the time of his last conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
The trial court denied defendant's motion based on several factors, including the serious nature of the prior strike offense, which was an assault with a firearm. The court also cited defendant's long criminal history and his repeated probation violations. The court said, "He did not learn his lesson, and he is precisely the type of defendant for which the strike laws should apply."
Defendant was 27 years old at the time of his conviction. The probation report indicates his criminal history began long ago while he was a juvenile. In 1997, when he was about 14 years old, defendant was convicted of burglary (§ 459). In 2000, while still a minor, he was convicted of a second burglary (§ 459). In 2002, he was convicted of carrying a loaded, concealed firearm and ammunition as a minor (§§ 12031, subd. (a), 12025, subd. (a)(2), 12101, subds. (a) & (b).)
Defendant's first conviction as an adult was for resisting or obstructing an officer in 2005. (§ 148) In 2005, he was also convicted of his strike offense, assault with a firearm (§ 245, subd. (a)(2)). Because he incurred the strike offense in 2005, it is not remote, and defendant has not lead a crime-free life since its commission. For the strike offense, defendant was sentenced to four years in state prison. After his release he was found in violation of his parole on four different occasions: February 27, 2006, March 13, 2007, January 4, 2008, and September 4, 2009. The violation on September 4, 2009, was based on the current offenses. In other words, defendant was still on parole when he was arrested and charged in this case. Thus, the extent of defendant's criminal history does not favor a finding defendant should be deemed to fall outside the Three Strikes law.
Here, the mitigating factors cited by defendant are simply not significant enough to outweigh the factors favoring a sentence under the Three Strikes law. First, "drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment. [Citations.]" (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) In an interview shortly after his conviction, defendant did express a need and desire for substance abuse treatment. However, the record also indicates he was resistant or unwilling to pursue treatment just prior to his arrest in this case. On August 12, 2009, the day before his arrest, defendant was supposed to turn himself in to begin a residential treatment program but chose not to do so. Instead, on the very next day, he was found carrying 18 baggies of methamphetamine, a further indication he lacked a strong desire to address his addiction.
Additionally, the probation report indicates defendant had already received treatment for his addiction in several different programs. In general, "when a defendant has a drug addiction or substance abuse problem, where the defendant has failed to deal with the problem despite repeated opportunities, where the defendant shows little or no motivation to change his life style, and where the substance abuse problem is a substantial factor in the commission of crimes, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence." (People v. Reyes (1987) 195 Cal.App.3d 957, 963.) For these reasons, we are unconvinced by defendant's contention his drug addiction was a mitigating factor weighing in favor of a lesser sentence for the current offenses.
Based on all of the information before the court at the time of sentencing, it is our view the trial court appropriately concluded defendant is a recidivist offender who falls squarely within the Three Strikes law. We disagree with defendant's contention the trial court did not consider all relevant factors or unfairly focused on a single factor to deny his motion. In our view, the record indicates there are no viable grounds upon which defendant could validly be deemed to fall outside the Three Strikes law. We therefore conclude there was no abuse of discretion.
B. PRESENTENCE CUSTODY CREDITS
Relying on the probation report, the court calculated defendant's presentence custody credits under section 4019 based on 374 days in actual custody. Defendant was awarded 184 days of credit under section 4019. Citing subdivision (f) of section 4019, effective January 25, 2010, defendant contends there was a mathematical error in calculating his credits. He believes he should have received 186 rather than 184 days.
As defendant concedes, the calculation of his presentence custody credits was limited by subdivisions (b)(2) and (c)(2) of section 4019, effective January 25, 2010, because of his prior strike offense.
Citing the dates of arrest and release shown in the probation report, the People argue the calculation of credits is incorrect for different reasons. First, the People point to an obvious error in one of the dates of release shown in the probation report. The report shows defendant was arrested on November 13, 2009, and then released before that date on March 15, 2009. The People believe the probable date of release was March 15, 2010, rather than March 15, 2009. Second, the People believe defendant only spent 252 actual days in custody if the March 15, 2010, release date is correct. In our independent review, we could not confirm the accuracy of the dates defendant actually spent in presentence custody, relying on the information shown in the probation report or the calculations by the court or the People.
Our calculations suggested defendant spent 255 days in actual custody.
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Based on the foregoing, there appear to be factual determinations that need to be made in order to correctly calculate defendant's custody credits. The court that imposed the sentence, which has access to the information necessary to resolve the disputes, is in the best position to make those factual determinations. (People v. Hyde (1975) 49 Cal.App.3d 97, 102.) Thus, we decline to make a final ruling on this issue, and remand the case to the trial court for a redetermination of defendant's actual days in presentence custody, as well as his custody credits under section 4019. (See People v. Fares (1993) 16 Cal.App.4th 954, 957.)
DISPOSITION
The trial court is directed to reconsider the number of days defendant actually spent in presentence custody and to correctly calculate defendant's presentence custody credits under section 4019. The trial court is further directed to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.