Opinion
F055259
1-6-2009
THE PEOPLE, Plaintiff and Respondent, v. RONALD LEE ALLEN, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published in the Official Reports
OPINION
THE COURT
Before Wiseman, Acting P.J., Hill, J. and Kane, J.
INTRODUCTION
Appellant Ronald Lee Allen pleaded no contest to unlawfully taking or driving a vehicle, admitted a prior strike conviction and a prior prison term enhancement, and received a second strike term of seven years. He has filed an appellate brief pursuant to People v. Wende (1979) 25 Cal.3d 436. He also filed a letter brief and asked this court to review the trial courts denial of his motion to dismiss the prior strike conviction pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We will affirm.
All further statutory citations are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 24, 2007, Walter Brenton drove his older model station wagon to church in Taft. The ignition was broken and Brenton did not need a key to operate the vehicle. Brenton parked in the handicapped space and did not lock the door. About 90 minutes later, Brenton walked out of church and discovered the car was gone.
Given appellants no contest plea, the following facts are from the preliminary hearing.
The churchs pastor drove around the area with two parishioners to look for Brentons car, and they found it traveling on a nearby street. Appellant was the driver and sole occupant. They pulled alongside the car and told appellant the car was stolen and to pull over. Appellant accelerated and sped away. A brief car chase ensued as the pastor followed appellant as he drove through alleys. Appellant crashed the car into a fencepost and ran away. The pastor and parishioners chased and tackled appellant. Brentons car was recovered but the two front tires were blown out, a rear tire was flat, and the left door and left front fender were smashed.
Appellant was charged with count 1, unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and count 2, receiving a stolen vehicle (Pen. Code, § 469d, subd. (a)), with special allegations he suffered one prior strike for robbery in 1991 (§ 667, subds. (b)-(i)) and served six prior prison terms (§ 667.5, subd. (b)). He pleaded no contest to count 1, admitted the prior strike conviction, and admitted one prior prison term enhancement, for a maximum possible sentence of seven years, and the remaining charges were dismissed.
Appellant filed a request to dismiss the prior robbery strike pursuant to section 1385 and Romero because the prior offense was remote and the instant offense did not involve violence. The prosecution filed opposition and argued a second strike sentence was appropriate based on his lengthy record.
The Probation Report
In the probation report, appellant stated he used cocaine, heroin, and considered himself addicted to methamphetamine, and claimed he was under the influence of alcohol and drugs when he committed the instant offense. The probation report recounted appellants lengthy criminal record, which began with juvenile petitions for burglary and theft. His adult record began in 1979 with convictions for second degree burglary, theft (§ 484), and vandalism (§ 594), and he was placed on probation.
In 1984, appellant was convicted of second degree burglary and sentenced to two years in prison. He was paroled in January 1986, but convicted of taking or driving a vehicle in July 1986 and sentenced to two years in prison. He was paroled in November 1987, and placed on probation for possession of narcotics paraphernalia (Health & Saf. Code, § 11364) and giving a false identity to an officer (Pen. Code, § 148.9) in February 1988, and unlawfully taking or driving a vehicle in March 1988.
In May 1988, appellant was convicted of receiving stolen property (§ 496.1), sentenced to 16 months in prison, and paroled in June 1990. In January 1991, he was convicted of robbery (§ 212.5, subd. (b)), which was the strike offense in this case, and sentenced to two years in prison. Appellant was paroled in March 1992, but convicted of giving false information to an officer (Veh. Code, § 31) in July 1992, and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)) in August 1993.
In July 1995, appellant was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), with a prior strike conviction, and sentenced to four years in prison. He was paroled in 1998 and placed on probation for maintaining a place for unlawfully selling controlled substances, being under the influence of a controlled substance, and possession of an opium pipe (Health & Saf. Code, §§ 11366, 11550, subd. (a), 11364) in 1999; being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) in 2000; possession of an opium pipe (Health & Safety Code, § 11364) in November 2001; driving without a license (Veh. Code, § 12500, subd. (a)) in September 2003; and driving without a license and fleeing from a peace officer (Veh. Code, § 2800.1) in June 2004.
In September 2004, appellant was convicted of possession of a controlled substance with a prior strike conviction, and was sentenced to 32 months in prison. He was released on parole in September 2006, but was charged with resisting arrest (§ 148, subd. (a)(1)) and giving a false identity (§ 148.9, subdivision (a)) in June 2007. Appellant was on parole when he committed the instant offense in July 2007.
The probation report recommended imposition of the upper term based on the aggravating circumstances that appellants prior convictions were numerous, he had served six prior prison terms which were not being used to enhance the offense, he was on parole when he committed the instant offense, and his prior performance on probation and parole was unsatisfactory; there were no mitigating circumstances.
The Sentencing Hearing
At the sentencing hearing, appellant requested the court to dismiss the prior strike conviction or impose the lower term, notwithstanding the plea agreement, because his 1991 prior robbery strike was "relatively old." Appellant said he was sorry for what he did, claimed he was on drugs when it happened, asked for leniency, and promised not to break the law again because "I got a bunch of kids at home."
The court denied appellants request to dismiss the prior strike based on his numerous prior convictions, poor performance on probation and parole, and he continued to regularly reoffend after the 1991 prior strike conviction. The court noted he violated parole 11 times after he suffered the prior strike conviction. "The overall record does not warrant in this particular case striking the strike. [¶] The original charge in this particular case shows that he has six prison priors which means he hasnt been out of custody for more than five years and six consecutive prison commitments and in this particular case its not a situation where he has been in possession—well, where he is charged with possession of narcotics or drugs, although he claims he was under the influence at the time. [¶] The circumstances are that he basically stole a car and that car was stolen from some people whose only income is Social Security. This is a significant impact to a victim in this particular case."
The court imposed the upper term of three years for count 1 and doubled that term to six years as the second strike term, with a consecutive term of one year for the prior prison term enhancement. The court awarded 219 days of actual credit and 108 days of conduct credits, for a total of 327 days. The court imposed a restitution fine of $200 (§ 1202.4, subd. (b)), a $200 parole revocation fine (§ 1202.45) that was stayed pending successful completion of parole, and a $20 court security fee (§ 1465.8). The court also suspended his drivers license for one year (Veh. Code, § 13357).
DISCUSSION
Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) By letter of September 5, 2008, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider.
Appellant has filed a letter brief and argues the trial court should have dismissed his prior strike conviction under Romero and imposed the midterm. Section 1385 permits the trial court to exercise its discretion and dismiss a prior strike conviction in furtherance of justice. (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 158 (Williams ); Romero, supra, 13 Cal.4th 497, 529-530.) The trial court must find the defendant falls outside the "spirit" of the three strikes law, based on the nature and circumstances of his past and present offenses, and the "particulars of his background, character, and prospects," to dismiss a prior strike conviction in furtherance of justice pursuant to section 1385 and Romero. (Williams, supra, 17 Cal.4th at p. 161; Romero, supra, 13 Cal.4th at pp. 530-531.)
The trial court has broad discretion in making sentencing choices and its decisions will not be disturbed on appeal absent a showing of clear abuse. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) "... 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." (Id. at p. 378.)
In the instant matter, appellant asserted his case was only "technically" within the three strikes law and a second strike sentence "would lead to a result that falls outside the spirit of the law," because of the nature of the offense and the remoteness of his prior strike conviction. However, appellant is exactly the type of person at whom the three strikes law is directed. While the prior robbery strike occurred in 1991, he repeatedly committed theft and narcotics offenses, he was repeatedly placed on probation, he repeatedly reoffended and violated probation, and he was ultimately sent to prison. He committed new offenses almost as soon as he was paroled for his prior offenses. The trial court carefully reviewed the entirety of appellants criminal record, the nature of the current offense, and particularly his numerous violations of probation and parole, and acted to achieve legitimate sentencing objectives, after a thoughtful and conscientious assessment of all relevant factors. (See Williams, supra, 17 Cal.4th at pp. 162-164.) The court did not abuse its discretion in denying appellants request to dismiss his prior strike conviction.
After further independent review of the record, we have concluded no other reasonably, arguable legal or factual arguments exist.
DISPOSITION
The judgment is affirmed.