Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Los Angeles County, No. NA077372, Jessie I. Rodriguez, Judge.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant Sergio Talavera.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant Timothy Fox.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendants and appellants Sergio Talavera and Timothy Fox of possession for sale of a controlled substance-cocaine base. (Health & Saf. Code, § 11351.5.) The jury acquitted Talavera and Fox of two counts of sale/transportation/offer to sell a controlled substance-cocaine base (Health & Saf. Code, § 11352, subd. (a)), acquitted Talavera of one count of possession of a controlled substance-methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and acquitted Fox of one count of possession of a controlled substance-cocaine base (Health & Saf. Code, § 11351.5). Talavera admitted that he suffered a prior conviction within the meaning of Penal Code section 667.5, subdivision (b), and Health and Safety Code section 11370.2, subdivision (a). In a bifurcated proceeding, the trial court found that Fox suffered four prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a), and one prior conviction within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c). The trial court granted Talavera’s motions to strike the Penal Code section 667.5, subdivision (b) prior conviction and a prior conviction allegation under the Three Strikes law (Pen Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), but denied his motion to strike a prior conviction allegation under Health and Safety Code section 11370.2, subdivision (a). The trial court denied Fox’s motion to strike the prior convictions found true within the meaning of Health and Safety Code sections 11370.2 and 11370. The trial court sentenced Talavera and Fox to state prison for 7 and 16 years, respectively.
On appeal, Talavera contends that the trial court erred when it sustained the prosecutor’s claim of privilege under Evidence Code section 1040 (section 1040) concerning a surveillance vehicle used to detect Talavera’s alleged offense. Fox also contends the trial court erred with respect to sustaining the privilege claimed under section 1040 and further contends that the trial court erred in denying his Marsden motion and in failing to strike at least two of the prior convictions found true within the meaning of Health and Safety Code section 11370.2. Talavera joins Fox’s arguments to the extent they inure to his benefit. We affirm.
People v. Marsden (1970) 2 Cal.3d 118.
BACKGROUND
About 2:30 a.m., on February 9, 2008, Los Angeles Police Officer Charles DeRosier, a narcotics officer, conducted a surveillance at 1534 Sandison Avenue in the City of Wilmington. During the course of his surveillance, Officer DeRosier observed defendants standing on the sidewalk in front of 1534 Sandison Avenue. Officer DeRosier further observed an Altima drive up and park on the north side of Sandison Avenue, across from the surveillance location. The driver of the Altima got out of the car and “met up with” defendants. After speaking with defendants for about five seconds, the driver went back to the Altima and drove away. Shortly thereafter, a dark-colored GMC drove up and parked on the north side of the street. The driver got out and “met up with” Fox. The driver then went back to his vehicle and drove off. Based on his training and experience, Officer DeRosier believed that narcotics were being sold at the location.
Shortly after the GMC left, a black Audi and an older model gray pickup truck pulled up almost simultaneously. Both vehicles parked on the north side of the street. Both drivers got out of their vehicles. The driver of the Audi went straight to Fox, and the driver of the pickup truck met with Talavera, who was standing next to Fox. Officer DeRosier observed motions that were consistent with “hand-to-hand” transactions. Officer DeRosier observed the driver of the pickup truck hand an item to Talavera and then move over to Fox, who handed the driver a small, unknown item. The drivers returned to their vehicles and drove away.
Officer DeRosier notified other officers of what he had seen and instructed them to stop the Audi and pickup truck and search them. About 3:05 a.m., on February 9, 2008, Los Angeles Police Officer Paul McKechnie stopped the Audi and searched the driver. Officer McKechnie recovered a small, off-white rock substance from the driver’s left jacket pocket. At the same time, Los Angeles Police Officer Gregg Jacobus stopped the pickup truck and searched the driver. Officer Jacobus recovered a small, off-white, rock-like substance from the driver’s right sock. Defendants were arrested at 4:30 a.m. Talavera had over $1,700 in cash in his pocket.
A Los Angeles Police Department criminalist tested the items Officers McKechnie and Jacobus recovered during their respective searches. The criminalist testified that the item Officer McKechnie recovered weighed.40 grams and contained cocaine base, and the substance Officer Jacobus recovered weighed.22 grams and contained cocaine base.
Los Angeles Police Officer Gregory Halka transported Talavera from 1534 Sandison Avenue to the Harbor Division police station. Officer Halka searched Talavera before placing him in the car and did not find any contraband. At the police station Officer Halka and his partner, Officer Eric Johnson, conducted a strip search of Talavera. During the strip search, a “piece of what looked like rock cocaine fell from underneath [Talavera’s] testicles.” The police criminalist tested the item and determined that it weighed.44 grams and contained cocaine base. Also during the strip search Talavera removed “what looked like a plastic bindle” from his rectum which he put in his mouth and apparently attempted to swallow. Talavera spit out the bindle which was recovered by the police. The police criminalist, apparently testifying about the contents of the bindle, testified that the bindle contained an off-white fibrous material that was not formed into distinct rocks, the contents weighed 3.84 grams, and the contents contained cocaine base.
The police also conducted a strip search of Fox at the police station. During the search, Fox attempted to hide a piece of plastic containing small, off-white, rock-like objects in his rectum. Fox was taken to the U.S.C. Medical Center, where a bundled-up piece of plastic was recovered after Fox went to the bathroom in a bedpan. The police criminalist testified that the contents of the bundled-up plastic weighed 1.3 grams and contained cocaine base.
Ruth Talavera, Talavera’s wife, testified that on February 8, 2008, she and Talavera sold a car to Rudy Negrette. Negrette made a down payment of $1,500 in cash. Talavera took possession of the cash.
Monique Brackin testified that she and Fox, with whom she was romantically involved, spent the evening of February 8, 2008, and the early morning of February 9, 2008, together. Brackin dropped off Fox on Watson Street in Wilmington a few minutes after 4:00 a.m.
DISCUSSION
I. The Section 1040 Privilege
Defendants contend that the trial court erred in finding information concerning the type of vehicle from which DeRosier conducted the surveillance, whether the vehicle had been modified, and DeRosier’s position within the vehicle were privileged under section 1040, which provides for nondisclosure of information acquired in confidence by a public employee in the course of his or her duties. Further, defendants contend that having found the privilege, the trial court erred in failing to make an evidentiary ruling adverse to the prosecution that would “counter-balance the restriction of [defendants’] right to effective cross-examination of adverse witnesses.” The trial court did not err.
A. Standard of Review
We review for abuse of discretion a trial court’s determination of the materiality of evidence for purposes of the section 1040 privilege. (People v. Walker (1991) 230 Cal.App.3d 230, 237.)
B. Background
Officer DeRosier testified that he conducted his surveillance of 1534 Sandison from a distance of about 50 yards. Officer DeRosier surveilled the location with and without the assistance of binoculars. The area was partially illuminated with street lights. When asked on cross-examination by Fox’s counsel whether he was 50 yards to the east or west of the location, Officer DeRosier responded, “I would like to ask 1040, 1042 of the Evidence Code, not to disclose that information due to further investigations.” The prosecutor added, “That is the People’s motion, your Honor.”
The trial court brought the parties to the sidebar. There, Fox’s counsel stated that he had measured 50 yards from the location, and he believed that Officer DeRosier would not have been able to see what he claimed to have observed from that distance. Fifty yards from the location in one direction would have been around a corner, and 50 yards in the opposite direction would have been across an intersection. Fox’s counsel argued that it was integral to the defense that he be able to examine Officer DeRosier about where he was located and about any obstructions to his line of sight.
The prosecutor spoke with Officer DeRosier and informed the trial court that the officer might address whether he was to the east or west of the location, depending on the questions that would follow. Fox’s counsel stated that he would ask Officer DeRosier whether he was in a vehicle or a building. The prosecutor stated that Officer DeRosier would not testify about whether he was located in a vehicle or a house or whether he was “in a tree or so forth.”
The trial court suspended Officer DeRosier’s cross-examination and the matter was further addressed in an Evidence Code section 402 hearing. At the hearing, Officer DeRosier testified that he was inside a vehicle during the surveillance, and that nothing impaired his ability to see the defendants during the surveillance. Officer DeRosier testified that when he observed the defendants, he was not looking through a tinted window and there was no “superstructure of any automobile” blocking his direct line of sight. Officer DeRosier testified that while there were vehicles parked on the same side of the street between him and the defendants, none of the vehicles obstructed his view. Officer DeRosier identified the exact position where he was parked during the surveillance.
At the Evidence Code section 402 hearing, Officer DeRosier asserted the section 1040 privilege to the following questions: (1) “[W]ere you in the front seat or the back seat?” (2) “Were you to the passenger side or the driver’s side?” (3) “Was that a sedan or a van or an SUV-type vehicle?” and (4) “Is the vehicle modified in any way to enhance surveillance?” At the conclusion of Officer DeRosier’s testimony, the trial court conducted a brief in camera hearing with Officer DeRosier and the prosecutor. The transcript of that hearing was sealed.
After the in camera hearing, the trial court upheld Officer DeRosier’s assertion of the section 1040 privilege. The trial court concluded that the information sought was not material. The trial court stated, “there isn’t a reasonable possibility that no disclosure might deprive the defendants of a fair trial; and, therefore, the information so requested, it’s not material. It will not deny any of the defendants of a fair trial. And the absence of that-of that requested information would not in any fashion, from the court’s perspective, after the court has listened to both the evidence in open court, the arguments of counsel, and the in chambers conference, wouldn’t in any way either exculpate or inculpate the defendant in this case.” The trial court observed that like the identity of confidential informants, hidden observation points may continue to be useful to law enforcement as long as they remain secret. The identification of a hidden observation point likely would destroy the future value of the location for police surveillance.
Talavera’s counsel asked the trial court to define the scope of the privilege. The trial court stated, “[W]e know it’s in a car. The only questions that we are not going to get into is what type of a car and whether he was in the passenger’s seat or the driver’s seat, you know, whether the car has been modified or not. Anything relating to a specific type of a car, anything that encompasses that.” Talavera’s counsel asked if she could ask questions that had been asked at the Evidence Code section 402 hearing. The trial court responded that she could ask any question that would not lead to Officer DeRosier asserting the privilege. Accordingly, Talavera’s counsel could ask the questions Officer DeRosier answered at the Evidence Code section 402 hearing.
C. Legal Principles
Section 1040 provides a privilege against public disclosure of official information. Official information is “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (§ 1040, subd. (a).) Public entities have a privilege to refuse to disclose official information if “[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice....” (§ 1040, subd. (b).) The People have the burden to demonstrate that the section 1040 privilege for official information applies. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1317.)
The location of a surveillance is information to which the official information privilege can apply. (In re Sergio M. (1993) 13 Cal.App.4th 809, 814.) The information the trial court ruled privileged in this case – whether Officer DeRosier was in the passenger’s seat or the driver’s seat, the type of vehicle used in the surveillance, and whether the vehicle was modified – is akin to information about the location of a surveillance because it concerns the manner in which the officer secreted himself from view during the surveillance. Accordingly, such information is the type of information to which the official information privilege can apply. (See ibid.)
Evidence Code section 1042, subdivision (a) provides that when a claim of official privilege is sustained in a criminal proceeding, the trial court is to “make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material.” “[B]y its plain terms, section 1042 does not require an adverse order or finding whenever [the privileged information] is relevant. It requires such measures only when the [information] is material. ‘[T]he test of materiality is not simple relevance; it is whether the nondisclosure might deprive defendant of his or her due process right to a fair trial. [Citation.]’” (People v. Lewis (2009) 172 Cal.App.4th 1426, 1441, quoting People v. Garza (1995) 32 Cal.App.4th 148, 153; In re Sergio M., supra, 13 Cal.App.4th at p. 814 [“an adverse finding is only required [under section 1042, subdivision (a)] if the privileged information is material”].) With respect to materiality, the defendant has “the burden of showing that in view of the evidence, there was a reasonable possibility that the [privileged information] could constitute material evidence on the issue of guilt which would result in his exoneration.” (People v. Walker, supra, 230 Cal.App.3d at p. 238.)
We have reviewed the sealed transcript of the in camera hearing during which Officer DeRosier testified under oath. Based on our review of Officer DeRosier’s sealed and unsealed testimony, we hold that the evidence at issue came within the official information privilege in section 1040. We further hold that that information did not constitute material evidence on the issue of guilt that could result in either defendant’s exoneration. The confidentiality of the information outweighs any necessity for disclosure in the interest of justice. Accordingly, the trial court did not err in sustaining the privilege under section 1040, and it properly did not make an adverse order or finding under Evidence Code section 1042. (People v. Lewis, supra, 172 Cal.App.4th at p. 1441; In re Sergio M., supra, 13 Cal.App.4th at p. 814.)
Officer DeRosier’s sealed in camera testimony may not be disclosed. (Evid. Code, § 915, subd. (b).)
II. The Trial Court Did Not Err In Denying Fox’s Marsden Motion
Fox contends that the trial court erred in denying his Marsden motion. The trial court did not abuse its discretion.
In his opening brief, Talavera “joins in any and all arguments advanced on behalf of co-defendant Fox that may inure to his benefit and adopts all arguments as though fully set forth in [his] opening brief.” Beyond this cursory joinder, Talavera does not explain, and we fail to perceive how, the trial court’s denial of Fox’s Marsden motion could be prejudicial error as to Talavera. Accordingly, we consider the correctness of the trial court’s ruling on Fox’s Marsden motion only as to Fox. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)
A. Standard of Review
The decision whether to grant a Marsden motion is within the trial court’s discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 803; People v. Smith (2003) 30 Cal.4th 581, 604.) An appellate court will not find an abuse of that discretion unless the defendant shows that the trial court’s failure to remove appointed counsel and to appoint substitute counsel would substantially impair the defendant’s right to effective assistance of counsel. (People v. Gutierrez, supra, 45 Cal.4th at p. 803; People v. Smith, supra, 30 Cal.4th at p. 604.)
B. Background
Seven weeks after the jury rendered its verdict, Fox submitted a letter to the trial court entitled, “Request: Marsden Hearing and/or, replace Attorney of record. Reason: Ineffective counsel. Action/Resolution: Postpone sentencing.” In his letter, Fox identified a number of areas in which he believed his counsel’s performance was deficient. On appeal, Fox addresses only two of these complaints: (1) defense counsel’s failure to bring a Pitchess or “related motion to discover officer’s record of conduct on job, credibility as witness or complainants [sic.] filed against him” and (2) defense counsel’s choice “to use bias witness (Moniqe [sic] Brackin.] – Girlfriend) instead of Robert Hayes who was also present and willing to testify.” In Fox’s summary, he asserts, “‘Counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient performance give rise to a reasonable probability that if counsel had performed adequately, the result of the proceeding would have been different.’”
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
The trial court held an in camera hearing to allow Fox to assert defense counsel’s alleged deficiencies outside of the prosecutor’s presence. At the hearing, apparently with respect to Fox’s complaint that his counsel did not file a Pitchess or similar motion, Fox stated that he believed his counsel “could have did a lot more with the case as far as concerning the police admitting to initially signing his name to a police report that was not totally true. He had time to investigate the report before he had to even signed his name to it, your Honor. And I felt – you know, I’m not an attorney, but I felt my attorney should have did further investigation on the officer as far as conduct or any other perjury or-you know, any other perjury of him basically signing his name to an affidavit that is not true.” Asked to respond, defense counsel, in relevant part, stated that all of the evidentiary and investigative issues that Fox addressed in his written motion were relevant to the counts on which Fox was acquitted and not relevant to the count on which he was found guilty. The trial court denied Fox’s motion, stating that it could not make a finding of ineffectiveness or that Fox’s relationship with his counsel had deteriorated to the degree that counsel could not continue to represent Fox.
C. Legal Principles
A defendant who believes that his appointed counsel is providing ineffective assistance may seek to have that counsel relieved and substitute counsel appointed through what is commonly called a Marsden motion. (People v. Smith, supra, 30 Cal.4th at p. 604.) When a defendant makes a Marsden motion, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (Ibid.) “We do not find Marsden error where complaints of counsel’s inadequacy involve tactical disagreements. [Citations.]” (People v. Dickey (2005) 35 Cal.4th 884, 922.)
“‘Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.]’” (People v. Foster (2003) 111 Cal.App.4th 379, 383.) “Generally, ... prejudice must be affirmatively proved. [Citations.] ‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) If the defendant fails to make a sufficient showing either of deficient performance or prejudice, the ineffective assistance claim fails. (People v. Foster, supra, 111 Cal.App.4th at p. 383.)
We need not determine “‘whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland v. Washington (1984) 466 U.S. 668, 697.)
Assuming that Fox’s ineffectiveness claim with respect to defense counsel’s failure to file a Pitchess or similar motion concerns the failure to file such a motion with respect to Officer DeRosier, Fox’s claim fails because he cannot establish prejudice. (In re Fields, supra, 51 Cal.3d at p. 1079.) Fox was convicted of possession for sale of a controlled substance – cocaine base –based on the contraband recovered during a search of Fox’s person in which Officer DeRosier did not participate. Thus, the jury did not convict Fox of the hand-to-hand transaction observed by Officer DeRosier. The evidence showed that after Fox’s arrest, Fox was taken to the police station where officers other than Officer DeRosier conducted a strip search of Fox. During that search, Fox attempted to hide in his rectum a plastic bindle containing 1.3 grams of small, off-white, rock-like objects that contained cocaine base. Fox was taken to the U.S.C. Medical Center where officers other than Officer DeRosier recovered the plastic bindle and cocaine base after Fox went to the bathroom in a bedpan. Because Officer DeRosier did not participate in the recovery of the cocaine base from Fox, any failure by defense counsel to file a Pitchess or similar motion to discover any charges of dishonestly concerning Officer DeRosier had no bearing on the offense of which Fox was convicted.
On appeal, Fox contends that in his written Marsden motion, he claimed that Hayes was “present at the scene and... was willing to testify that [Fox] did not arrive until 4:00 a.m. and therefore was not a participant in the two exchanges alleged to be sales transactions.” Fox asserts that such testimony, if believed by the jury, would be evidence that he was at the scene to use drugs, not to sell drugs. The record does not support Fox’s contention. Neither in his written motion nor in his statements at the Marsden hearing did Fox make an offer of proof as to any testimony Hayes would have given. As quoted above, Fox’s only statement concerning Hayes was that defense counsel “chose to use bias witness (Moniqe [sic] Brackin– Girlfriend) instead of Robert Hayes who was present and willing to testify.” Assuming that Fox had made an offer of proof in the trial court consistent with that made on appeal concerning Hayes’s purported testimony, Fox’s disagreement with defense counsel’s tactical decision to call Brackin rather than Hayes to testify about Fox’s whereabouts prior to 4:00 a.m. is not subject to challenge through a Marsden motion. (People v. Dickey, supra, 35 Cal.4th at p. 922.)
Finally, Fox contends that his motion was not really a Marsden motion, but rather a motion for new trial based on ineffective assistance of counsel. But Fox’s letter was entitled “Request: Marsden Hearing and/or, replace Attorney of record.” The stated “Action/Resolution” Fox sought was the postponement of sentencing. If Fox’s letter was intended as a motion for a new trial, a new trial would have been the “action” or “resolution” Fox sought, not a postponement of sentencing. That Fox sought to postpone sentencing plainly is inconsistent with the assertion that he sought a new trial – had he been granted a new trial, there would not have been a sentencing hearing to postpone.
III. The Trial Court Properly Denied Fox’s Motion To Strike Fox’s Prior Conviction Allegations
Fox contends that the trial court abused its discretion when it denied his motion to strike his prior convictions that were found true within the meaning of Health and Safety Code section 11370.2, subdivision (a). We disagree.
Talavera’s cursory joinder in this argument (see footnote 2, above) fails to meet Talavera’s burden of demonstrating error and prejudice. Accordingly, we consider the trial court’s asserted abuse of discretion in failing to strike the prior conviction findings within the meaning of Health and Safety Code section 11370.2, subdivision (a) only as to Fox. (People v. Nero, supra, 181 Cal.App.4th at p. 510, fn. 11.)
A. Background
In his written motion to strike the four prior convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, Fox argued that two of the convictions were more than 20 years old, one was 14 years old, and one was 8 years old. Fox also argued that he was employed during his trial, that three letters had been submitted in his behalf that attested to his good character, and his fiancé testified in his behalf. At the hearing on Fox’s motion, Fox’s counsel submitted on the written motion.
Opposing Fox’s motion, the prosecutor argued that the trial court should impose consecutive three-year terms for each of Fox’s prior convictions because “there has been no significant break in [Fox’s] criminal conduct in the area of the sales or possession for sales of narcotics throughout this period.” Fox’s counsel responded that Fox had successfully completed a Proposition 36 program and has “made some kind of an effort to break from a course of conduct which has stemmed from addiction to crack cocaine.”
The trial court ruled as follows:
“The court is fully aware, of course, of its discretionary powers in deciding whether or not these allegations should be stricken for the purposes of sentencing in this case. [¶] As I indicated before when addressing Mr. Talavera, I didn’t think in that case that the time alone is the main factor or the only factor in deciding whether or not that pursuant to section 1358 [sic] or that a strike or an allegation should be stricken, but it is considered in the totality of the circumstances. [¶] When looking at Mr. Fox’s record, the totality of the circumstances do not assist him because Mr. Fox continues to be convicted of one after another after another, either possession for sale or transportation. And it is not simply just possession. It is the most dangerous of this type of incidents is possession for a sale and selling and transporting this poison. [¶] Therefore, at this time, in attempting to exercise my full discretion and attempting to find areas in which to assist Mr. Fox in order for me to strike any of these, the court does not find sufficient reason to strike any of the allegations. Therefore, your motion pursuant to section 1385 is denied.”
At Fox’s sentencing hearing, Fox’s counsel asked the trial court to “suspend time” on the Health and Safety Code section 11370.2, subdivision (a) priors or on at least some of them because the prior convictions arose out of a lifetime of drug addiction; the equal protection clause required a sentence comparable to the seven years that Talavera received; and a 16 year sentence would constitute cruel and unusual punishment. The trial court stated, “I understand what you are saying. I’m a traditionalist. I follow stare decisis to the max. I wish sometimes that the 9th Circuit would follow stare decisis from the Supreme Court. They get overturned 70, 80 percent of the time. [¶... ¶] More activism than legalism. We are not here for that. I understand what you’re saying. [¶] I’m having a hard time conceptualizing because your client has had four convictions for selling drugs, and those are the ones that he is convicted of. They are not possession for use. They are possession for sale and selling. He is spreading this disease. He is spreading the killing of perhaps innocent human beings. So I do not believe that he stands on the same footing as Mr. Talavera, which didn’t have all those convictions.”
B. Relevant Legal Principles and Standard of Review
A trial court may dismiss a Health and Safety Code section 11370.2, subdivision (a) enhancement under section 1385. (People v. McCray (2006) 144 Cal.App.4th 258, 267.) We review a trial court’s ruling on a request to strike an enhancement under section 1385 for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) “[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.) It is the burden of party attacking the sentence to demonstrate that the trial court abused its discretion. (Id. at p. 376.)
Section 1385, subdivision (a) provides:
Fox contends that the trial court failed to make an informed exercise of its discretion because it failed to consider his admitted drug addiction, that his prior convictions were the consequence of that addiction, and that two of the convictions were remote in time. Fox further contends that the trial court’s comments about being a “traditionalist” and stare decisis “indicate a rigid and trite political ideology was dictating its decision rather than the particular facts of [Fox]’s case, or the law as applied to those facts.” Finally, Fox contends that the record demonstrates that the trial court “failed to realize it had discretion to dismiss the strike convictions in this case.”
In context, it is apparent that Fox is referring to the sentence enhancements under Health and Safety Code section 11370.2, subdivision (a), and not prior “strike” convictions under the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)).
The trial court did not abuse its discretion is denying Fox’s motion to strike Fox’s four (or any of the four) prior convictions that were found true within the meaning of Health and Safety Code section 11370.2, subdivision (a). At the outset of the hearing on Fox’s motion to strike, the trial court stated that it fully understood its discretion to strike the convictions. The trial court addressed Fox’s assertion that some of his prior convictions were remote in time, and elected not to exercise its discretion due to Fox’s recidivism and its view concerning the seriousness of Fox’s prior convictions. The trial court stated that it had considered the “totality of circumstances” presented in Fox’s case and that it had “attempt[ed] to find areas in which to assist Mr. Fox in order for [it] to strike any” of Fox’s prior convictions. The record makes clear that the trial court based its ruling on the facts in Fox’s case and the law that applies to those facts, notwithstanding some extraneous comments. Accordingly, Fox has failed to meet his burden of showing the trial court abused its discretion in denying his motion to strike the four (or any) prior convictions found true within the meaning of Health and Safety Code section 11370.2, subdivision (a). (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
DISPOSITION
The judgments are affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.
“The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.”