Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Harry N. Papadakis, Judge. Super. Ct. No. 08CM0811
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J. and Poochigian, J.
INTRODUCTION
Appellant/defendant Frank Carrillo, Jr. was convicted of count I, possession of methamphetamine for sale (Health & Saf. Code, § 11378), and count II, unlawful transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and admitted three prior strike convictions (Pen. Code, § 667, subds. (b)-(i)). The court denied defendant’s request to dismiss the prior strike convictions, and he was sentenced to the third strike term of 25 years to life.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the court should have granted his motion to dismiss one of two prior strike convictions, which were purportedly based on the same act or course of conduct, and the court should have dismissed the remaining prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We will affirm.
FACTS
On November 28, 2007, Detective John Harris of the Corcoran Police Department was working on a plain-clothes assignment and driving an unmarked vehicle. He saw a pickup truck stop on the wrong side of the road and facing the wrong way. The truck was in front of a house which Harris was familiar with because he had previously arrested the occupants for narcotics-related offenses. A driver and passenger were in the truck, and the passenger was speaking to someone on the street.
Detective Harris followed the truck as it pulled away from the house, performed a U-turn, and headed in the opposite direction. Harris noticed the passenger was not wearing a seatbelt and activated the flashing lights on his unmarked vehicle to conduct a traffic stop. After Harris activated the flashing lights, he saw the passenger bend over and make furtive movements as if he was trying to conceal something under the seat. The truck stopped, Harris approached the vehicle, and he asked the two occupants for identification. Wesley Benford was the driver and defendant was the passenger. Harris advised Benford of the reason for the traffic stop and asked if he had anything illegal in the vehicle. Benford said no.
Defendant complied with Detective Harris’s request to step out of the truck. Harris asked defendant if he had “any illegal items on him.” Defendant replied, “‘[Y]ou got me.’” Defendant was holding something in his clenched right fist, and he handed a plastic bag to Harris. The plastic bag contained five plastic bindles, which held white crystalline substances similar to methamphetamine. Harris arrested defendant and searched under the truck’s passenger seat and found a glass pipe used to smoke methamphetamine.
Defendant was advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and agreed to answer questions. Harris asked defendant if he was selling drugs. Defendant said he had been selling drugs for several years and had never been caught. Defendant said he did not make much of a profit because he used so much of the product himself. Defendant offered to become a confidential informant to work off the charges. Harris was initially interested in defendant’s offer, and gave defendant a citation and did not arrest him that day. Harris later reviewed defendant’s background and decided he was not a good candidate to serve as an informant.
A criminalist tested the substances inside three of the five baggies and determined the baggies contained usable amounts of methamphetamine. The net weight of the contents in all five baggies was 0.98 grams. Officer Michael Wallace of the Kings County Narcotics Task Force testified that 0.05 grams was a normal dosage of methamphetamine that would produce a 12-hour high. Wallace testified defendant possessed the drugs for purposes of sale based on the number of individual bindles, the packaging, and defendant’s admission. The five bindles were worth about $125 to $150, and could have produced 20 individual dosages.
The probation report
The probation report (filed February 11, 2009) set forth defendant’s lengthy criminal history, which began in March 1989 when he received fines for speeding (Veh. Code, § 22349) and driving without a seatbelt. In October1990, defendant was convicted of felony assault with a deadly weapon with force likely to produce great bodily injury (§ 245, subd. (a)(1)), one of the strikes in this case, and he was sentenced to three years in prison. He was also sentenced to one year for his conviction of misdemeanor forgery (§ 470). Defendant was released on parole in February 1992, returned to custody in July 1992, again released on parole in the same month, and his parole was terminated in February 1996.
In November 1993, defendant was convicted of misdemeanor vandalism (§ 594, subd. (b)(4)) and placed on probation for three years. In March 1997, defendant’s probation was revoked when he was arrested for misdemeanor battery (§ 242), and he was subsequently placed on probation for that offense.
In August 1996, April 1997, May 1997, and June 1997, defendant was repeatedly fined for numerous vehicular violations, including multiple convictions for misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)); misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a)); misdemeanor failing to appear (Veh. Code, § 40508b); infractions for failing to wear seatbelts (Veh. Code, § 27315, subd. (d)); failing to pay a fine (§ 1214.1); speeding (Veh. Code, § 22349b); and driving a vehicle across a dividing line (Veh. Code, § 21651, subd. (a)(1)).
In November 1997, defendant was convicted of felony criminal threats (§ 422) and placed on probation. In February 2002, he was convicted of the two additional strikes in this case, felony battery with serious great bodily injury (§ 243, subd. (d)) and felony criminal threats (§ 422), and placed on probation. In June 2002, defendant was again placed on probation for his conviction for misdemeanor infliction of corporal injury upon a spouse (§ 273.5, subd. (a)).
In March 2003, defendant was placed on probation after being convicted of misdemeanor battery (§ 242). From January to June 2004, his probation was repeatedly revoked and reinstated. In December 2005 and February 2006, he violated probation. Defendant suffered additional vehicular violations in 2004 and 2005 for being an unlicensed driver (Veh. Code, § 12500, subd. (a)) and misdemeanor failing to pay fines (Veh. Code, § 40508, subd. (b)).
In November 2007, defendant was placed on probation after being convicted of a misdemeanor, insufficient funds (§ 476a, subd. (a); case No. 07CM7574). His probation was revoked in January 2008, he failed to appear in March 2008, and a bench warrant was issued. Defendant was on probation when he was arrested in this case.
Defendant committed the instant offenses on November 28, 2007. On February 27, 2008, defendant was arrested and charged in a separate case with two counts of felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), misdemeanor hit-and-run (Veh. Code, § 20002, subd. (a)) and misdemeanor driving on a suspended license (Veh. Code, § 14601, subd. (a)). His trial in that case was continued pending the sentencing hearing in this case.
According to the probation report, defendant (born 1970) was divorced and the father of five children. Defendant stated his marriage dissolved because of his drug use, and he was in arrears with child support payments. Defendant had a GED, briefly attended a college nursing program, and dropped out because of financial problems. Defendant was employed as a forklift driver from September 2007 to January 2008 and was fired when he was incarcerated. Defendant was previously employed as a sprinkler installer. Defendant started using methamphetamine when he was 25 years old and used the drug on a daily basis until he was arrested in this case. Defendant said he never attended a substance abuse treatment program and always thought he would be able to stop using drugs on his own.
The probation report found aggravating circumstances because defendant’s prior convictions were numerous, he had served a prior prison term, he was on probation when the instant offenses were committed, and his prior performance on probation or parole was unsatisfactory. There were no mitigating circumstances.
The sentencing hearing
Defendant admitted the three prior strike convictions which were alleged in the amended information: (1) assault with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (a)(1)), (2) felony battery with serious bodily injury (§ 243, subd. (d)), and (3), and felony criminal threats (§ 422).
At the sentencing hearing, defendant requested the court dismiss one or more prior strikes pursuant to section 1385 and not to impose a sentence of 25 years to life. Counsel argued the first strike conviction was committed in 1990, “pushing close to 19 years ago.” Counsel noted defendant was convicted of the second and third strikes “in the same case, and arguably in the same—in the same course of conduct. And if it’s considered as a strike, we would contend that it could reasonably be construed as a single strike type offense as in the context of the—of one case and one course of conduct.” Counsel further argued imposition of a third strike term would be cruel and/or unusual punishment.
The prosecutor argued the three prior strike convictions should not be dismissed, and reviewed defendant’s criminal history as set forth in the probation report. The prosecutor noted defendant had a potential fourth prior strike conviction when he was convicted of criminal threats (§ 422) in 1997, but the background information was not available so it was not pleaded or proved as a strike in this case. The prosecutor further argued that in 2006, defendant was charged with a felony offense and he could have received a third strike sentence, but it was treated as a misdemeanor instead. The prosecutor argued defendant had a “19-year criminal history with four strike offenses on his record,” he received “break after break,” he continued his criminal behavior, and there was “no basis” for the court to dismiss any of the strikes.
The court denied defendant’s request to dismiss the prior strike convictions. The court stated it had reviewed the probation report and “seriously considered” the arguments of counsel, and “I don’t want to repeat everything the District Attorney has said here, but I think I counted six pages on the prior convictions, and you start with the Vehicle Code and work your way all the way up to strike offenses.” The court found a third strike term “just appears appropriate in this case. The law that’s set forth was passed by the electorate and the legislature, and unless—the case law tells us that unless good reasons are given to the Court to strike the strike or the strikes, then the Court must follow that law. And there are no other reasons here. [¶ ] He’s been to prison before. All the offenses indicate a—just an attitude not to follow the rules. All the way up from the whole stack of suspended license cases, he’s just not going to follow the rules.”
The court imposed the third strike term of 25 years to life for count II, transportation of methamphetamine, and stayed the third strike term for count I, possession of methamphetamine for sale, pursuant to section 654. The court also imposed a concurrent term of one year for defendant’s conviction of misdemeanor insufficient funds (§ 476a, subd. (a)) in case No. 07CM7574.
DISCUSSION
THE COURT DID NOT ABUSE ITS DISCRETION
Defendant contends the court abused its discretion when it denied his request to dismiss his prior strike convictions. He raises a separate argument that the court should have dismissed one of the two prior strikes, which allegedly arose from the “same act or course of conduct.”
The Three Strikes law “‘does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] 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. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
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, 158-159 (Williams); Romero, supra, 13 Cal.4th at pp. 529-530.) A defendant has no right to make a motion and the court has no obligation to make a ruling under section 1385, but the defendant may “‘invite the court to exercise its power’” under the statute to dismiss the prior strike conviction. (Carmony, supra, 33 Cal.4th at p. 375.)
In exercising its discretion, the trial court “must consider whether, in light of the nature and circumstances of [the defendant’s] 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.” (Williams, supra, 17 Cal.4th at p. 161.)
The court’s decision not to dismiss a prior strike conviction is subject to review under the deferential abuse of discretion standard, and will not be reversed absent a showing of clear abuse. (Carmony, supra, 33 Cal.4th at pp. 376-377.) In determining whether the trial court abused its discretion, “‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. [Citation.]” (Id. at p. 378.)
“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.” (Ibid.)
When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the court’s decision will not be disturbed on appeal. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Defendant contends the court should have dismissed one or more prior strike convictions because the instant offenses did not involve force or violence, he was not found in possession of a large amount of drugs, and he was not operating a large-scale drug ring. Defendant further contends his first strike was “remote in time” since it occurred in 1990 and “drew only a mid-term,” and he was placed on probation for the other two strike convictions in 2002.
The trial court did not abuse its discretion when it denied defendant’s request to dismiss his three prior strike convictions in this case. As the trial court observed, defendant has numerous felony and misdemeanor convictions, he was repeatedly placed on probation and/or released on parole, and he violated both probation and parole. He was repeatedly reinstated in probation but he continued to reoffend on a regular basis. Indeed, defendant’s record showed his complete inability to comply with the most lenient of sentences, through his repeated failures to appear and pay fines for his numerous vehicular violations, and he continued to drive on a suspended license and without a license. In addition, his felony and misdemeanor offenses involved aggravated assaults and batteries, and the infliction of corporal injury on a spouse. As noted by the prosecutor, defendant received numerous breaks because he already had his first strike conviction when he was convicted of felony criminal threats in 1997. He could have received a second strike term, but he was placed on probation instead. Defendant received another break when he was convicted of the two additional strikes in 2002, because he again could have received a second strike sentence, but he was placed on probation.
As for the current offenses, defendant was in possession of five bindles which were packaged for sale, with a total street value of up to $150. Defendant readily admitted that he had been selling drugs for several years and had never been caught.
Defendant raises a separate argument based on the fact that two of his three prior strike convictions—felony battery with serious bodily injury (§ 243, subd. (d)) and felony criminal threats (§ 422)—occurred in February 2002 in Tulare County Superior Court case No. 74323. Defendant argues the trial court was obliged to dismiss one of these two prior convictions because both offenses arose from “the same act or course of conduct.”
The Three Strikes law does not require that “a defendant’s prior serious or violent felonies have been ‘brought and tried separately’ in order to qualify as multiple ‘strikes.’” (People v. Allison (1996) 41 Cal.App.4th 841, 843; see also People v. Fuhrman (1997) 16 Cal.4th 930, 939-940.) “The fact that [defendant’s] prior convictions were adjudicated in a single proceeding does not mean that they constitute one prior conviction; two strikes can arise from one case.” (People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, 916.)
In People v. Benson (1998) 18 Cal.4th 24 (Benson), the court held that a prior conviction for which the sentence was stayed under section 654 may also be treated as a strike. (Id. at p. 31.) In a footnote, however, Benson further explained the trial court had discretion to dismiss a prior strike conviction under such circumstances pursuant to section 1385.
“Because the proper exercise of a trial court’s discretion under section 1385 necessarily relates to the circumstances of a particular defendant’s current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected--for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct--that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (Benson, supra, 18 Cal.4th at p. 36, fn. 8; see also Carmony, supra, 33 Cal.4th at pp. 374-375 [same]; People v. Sanchez (2001) 24 Cal.4th 983, 993 [same], overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.)
In People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos), the court relied on Benson’s footnote and held the trial court abused its discretion when it failed to dismiss one of the two prior strike convictions that “arose from a single act.” (Id. at p. 1214.) Defendant admitted prior strike convictions for attempted carjacking and attempted robbery, both of which “arose from a single criminal act, where [defendant] and two companions approached a man at a gas station and [defendant] demanded the victim’s car while one of the companions told the victim that he had a gun.” (Id. at p. 1212, fn. 3.)
Burgos held Benson “strongly indicates that where the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors.” (Burgos, supra, 117 Cal.App.4th at p. 1215.) Burgos held the trial court should have dismissed one of defendant’s two prior convictions since they were “‘so closely connected’” and arose from the “same single act.” (Id. at p. 1216.) “Here, [defendant’s] two prior convictions, attempted carjacking and attempted robbery, were, in the language of Benson, ‘so closely connected,’ having arisen from the same single act, that failure to strike one of them must be deemed an abuse of discretion.” (Ibid.)
Burgos further held there were no other circumstances indicating the defendant deserved to be sentenced as a third strike offender. (Burgos, supra, 117 Cal.App.4th at pp. 1216-1217.) “While the current offenses [second degree robbery and assault by means of force likely to produce great bodily injury with the personal infliction of great bodily injury] were not merely petty theft or drug possession offenses, neither were they, under the circumstances, the worst of crimes.” (Id. at p. 1216.) Burgos noted that even upon the dismissal of one of the prior strike convictions, defendant was still subject to a significant term of up to 20 years. (Ibid.)
Defendant relies upon Burgos’s application of Benson’s footnote and argues the trial court similarly abused its discretion by failing to dismiss one of his two prior strike convictions which occurred on February 4, 2002, in Tulare County Superior Court case No. 74323. First, contrary to defendant’s argument herein, Burgos did not hold that a trial court automatically abuses its discretion when it declines to dismiss one of two prior strike convictions that arose from the same act or course of conduct. Instead, Burgos illustrated that “the ‘same act’ circumstances... provide a factor for a trial court to consider, but do not mandate striking a strike.” (People v. Scott (2009) 179 Cal.App.4th 920 [101 Cal.Rptr.3d 875, 882], italics in original.) Second, to the extent Burgos may be interpreted as proposed by defendant, such an interpretation was implicitly disapproved in Carmony, where the California Supreme Court reaffirmed the trial court’s broad discretion, and ability to consider many factors, to determine whether to dismiss a prior strike conviction. (Carmony, supra, 33 Cal.4th at pp. 377-378; see also People v. Ortega (2000) 84 Cal.App.4th 659, 667-669.)
More importantly, however, there are absolutely no facts in the entirety of the instant record to even suggest that defendant’s convictions for aggravated battery and criminal threats in February 2002 were so closely connected or arose from a single criminal act. The record herein merely states that defendant suffered both convictions on the same day in the same superior court proceeding, and is otherwise silent as to the nature, circumstances, or even the victims of the two felony convictions. Defendant concedes the record is silent on these pertinent facts, but contends that “[c]ommon sense indicates these highly related offenses arise from the same course of conduct involving a single victim.” We decline to engage in such presumptions in the complete absence of any supporting evidence.
In his reply brief, defendant contends for the first time that defense counsel was ineffective for failing to develop the record as to the facts of the two prior strike convictions. “As a general proposition, points raised for the first time in a reply brief will not be considered unless good reason is shown for failure to present them earlier. [Citations.]” (People v. Whitney (2005) 129 Cal.App.4th 1287, 1298.)
Finally, in contrast to Burgos, defendant’s prior record is more serious and places him within the spirit of the Three Strikes law, since defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) The trial court did not abuse its discretion when it declined to dismiss any of defendant’s three prior strike convictions.
DISPOSITION
The judgment is affirmed.