Opinion
G058551
04-01-2020
THE PEOPLE, Plaintiff and Respondent, v. CHANDLER EMILE GRAHAM, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF1090) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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"Following a jury trial, defendant Chandler Emile Graham was convicted of four counts of second degree robbery [citation]; assault with a firearm [citation]; evading while driving recklessly [citation]; unlawfully taking a vehicle [citation]; and possession of a firearm by a felon [citation]. As to the four robbery counts, the jury found defendant personally used a firearm [citation]. The court found true sentencing enhancement allegations that defendant had previously suffered a prior strike, within the meaning of the 'Three Strikes' law [citations], and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). Defendant was sentenced to 44 years 4 months in prison, which include a five-year serious felony enhancement [citations]." (People v. Graham (Aug. 9, 2019, G056855) [nonpub. opn.], fn. omitted (Graham).)
This is defendant's third appeal from the judgment. "In his first appeal, we held he was entitled to a sentencing hearing to permit the court to exercise its discretion and determine whether to strike the firearm enhancements under then recently enacted legislation [citation], and we remanded the matter for a new sentencing hearing. [Citation.] On remand, the court decided not to strike the firearm enhancements." (Graham, supra, G056855.)
Defendant appealed the court's sentencing decision on remand, and we affirmed that decision. (Graham, supra, G056855.) But in the meantime, the Legislature had again enacted legislation "to provide a court discretion to strike or dismiss a five-year prior serious felony conviction for sentencing purposes." (Ibid.) Accordingly, "[w]e remand[ed] the matter a second time to permit the court to exercise its newly conferred sentencing discretion. (Ibid.) On remand, the court decided not to strike the five-year prior serious felony enhancement for sentencing purposes.
Defendant timely appealed that sentencing decision, making this his third appeal. We appointed counsel to represent him. Counsel did not argue against defendant but advised the court he was unable to find an issue to argue on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.
We have examined the entire record and have not found an arguable issue on appeal. Accordingly, we affirm the postjudgment order.
DISCUSSION
The only potential issue in this appeal is whether the court understood its newly conferred discretion to strike or dismiss the five-year prior serious felony enhancement, and, if so, whether the court abused its discretion by declining to strike it. Manifestly, the court did not abuse its discretion after first recognizing that it possessed the discretion to strike the enhancement.
In defendant's first appeal, we recited the following facts: "Defendant walked into a bank and used a loaded gun to rob four bank employees. One of these victims was pregnant, and defendant leveled the barrel of the gun at her belly. He also physically attacked a male customer and pointed the gun at the man's face. Defendant then fled the scene in a stolen car, leading police on a dangerous car chase, blowing through red lights and stop signs, swerving into oncoming traffic and through intersections while driving nearly 100 miles per hour. Even worse, this was not defendant's first high-speed police chase. Years earlier, he had killed a man during a similar high-speed getaway attempt and was on parole for that murder when he committed this robbery. The Attorney General argued, 'No judge would ever find that the 'interest of justice' demanded clemency for a person like appellant.'" (People v. Graham (May 23, 2018, G055219.) [nonpub. opn.].)
On remand from Graham, supra, G056855 and after entertaining argument, the court stated: "The Court is now recognizing its new discretion to strike versus apply the 667(a) [the five-year prior serious felony enhancement]. Given the—I realize it wasn't a takeover robbery. It was still a very aggravated set of circumstances—both pointing the gun at the pregnant woman and the [Vehicle Code section 2800.2, evading while driving recklessly] afterwards. All very dangerous, especially given his prior. [¶] I understand my discretion. I am not altering that sentence or striking the 667(a) for sentencing."
"The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Here, the court clearly understood its discretion. The court's stated reasons for declining to strike the five-year prior serious felony enhancement were manifestly not arbitrary and capricious. Its decision was based on consideration of defendant's serious offenses both currently and "especially given his prior." We perceive no abuse of discretion. Counsel's assessment that there was no arguable issue to raise on appeal is correct.
DISPOSITION
The postjudgment order is affirmed.
IKOLA, J. WE CONCUR: FYBEL, ACTING P. J. GOETHALS, J.