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People v. Chairez

California Court of Appeals, Sixth District
Jul 11, 2008
No. H031098 (Cal. Ct. App. Jul. 11, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. HECTOR CHAIREZ, Defendant and Appellant. H031098 California Court of Appeal, Sixth District July 11, 2008

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CC452907.

Premo, J.

Defendant Hector Chairez pleaded guilty to possession of a firearm by a felon and possession of ammunition by a prohibited person. He also admitted two prior convictions for purposes of the Three Strikes law and three prior prison terms for purposes of one year enhancements. The trial court denied his motion to strike one of the strike priors (but struck two of the prison priors) and sentenced him to concurrent terms of 25 years to life for the convictions plus one year for the prison prior. It also imposed restitution and parole-revocation fines of $10,000 each pursuant to the formula permitted by Penal Code section 1202.4, subdivision (b). On appeal, defendant contends that (1) the trial court abused its discretion by denying his motion to strike, and (2) the concurrent sentence and fines attributable to that sentence constitute improper multiple punishment (§ 654). The People concede the section 654 issue and we agree that the concession is appropriate. We otherwise disagree with defendant. We therefore modify and affirm the judgment.

Further unspecified statutory references are to the Penal Code.

BACKGROUND

On April 5, 2004, while on parole, defendant accidentally shot himself in the foot with a shotgun while sitting in the driver’s seat of a car rented by Bruce Harp’s mother. His friend, Andrea McClendon, drove him to the hospital. Police responded to the hospital, investigated, and determined the cause of defendant’s injury. In recorded conversations from the jail telephone and a jail visit, defendant attempted to manipulate evidence. For example, he (1) told his father to talk to McClendon “and tell her that . . . she doesn’t know nothing,” and (2) asked Harp for a favor to “say that thing was yours . . . [t]hen I think the most they’ll give you is like a misdemeanor charge, and that’s it, and then I’ll beat it straight out and I’ll get to get out like--like that ‘cause they’ve gonna try to give me life, fool.”

Defendant’s first strike prior was a 1992 conviction for intimidation of a witness that arose from an argument with and assault upon his daughter’s mother. Defendant’s second strike prior was a 1999 conviction for a robbery that defendant arranged so as to collect a debt owed him by a narcotics customer.

Defendant’s motion sought to strike the 1992 conviction. He argued that (1) “the current felony charge does not involve serious criminality,” (2) “the victim intimidation occurred 14 years ago,” (3) his then “youth, his drug addiction at an early age, and his exposure to violence against women all played factors [however he] has significantly changed and matured,” and (4) his “actions while being housed at the Santa Rita County Jail shows his earnest and personal desire to rid himself of drugs and his past once and for all.” Defendant supported his motion, in part, with certain exhibits that the trial court ordered to be sealed.

Defendant moved to seal the exhibits and his reply (with attached exhibits) on the ground that they contained sensitive information that bore on his safety. This part of the record remains under seal.

The probation report notes the following.

“In addition to his two strike prior offenses, the defendant’s criminal history consists of 11 felony convictions for offenses including First Degree Robbery, Illegal Possession of a Firearm, Domestic Violence, Intimidation of Victims/Witnesses, Possession of Controlled Substance, Possession for Sale of Marijuana and Narcotics Trafficking. He also has six Misdemeanor convictions for offenses including Assault Against Specified Persons, Illegal Drug Use and Resisting Arrest. He has been sentenced to prison four times and he violated parole three times. [¶] During the presentence interview the defendant continued to deny any knowledge of the shotgun being in the vehicle prior to the injury. He stated [that] he could not deny what occurred at the time of his first strike prior offense, however, he could not recall specific details either. He also minimized his involvement in the Robbery, for which he was charged with a second strike, and even admitted that he pled to the charges because he knew he would have received more time had he been charged with the amount of drugs found in his possession at the time of his arrest for the prior. To his credit, the defendant did acknowledge having a substance abuse problem and stated he has started taking steps to change his lifestyle. [¶] The defendant was sentenced on his first strike offense in 1992. From the time of his first strike in 1992 to his second strike offense in 1999, the defendant obtained 4 felony convictions and served one year County Jail and 16 months CDC. Since 1999 there were no additional convictions, with the exception of the present offense, however, the defendant was serving a six year prison term from which he was released on 12/30/03. Five months later he was arrested in the present matter.”

At the hearing, the trial court announced the following: “I have read that motion and all of the attachments to it. I’ve read a declaration by counsel. I’ve read matters that have been requested be sealed. And I’ve also read and considered the response from the People in this matter.” During argument, it emphasized the following to defense counsel: “I have more papers in this case that you filed than I can pretty much say any other Romero motion that has ever been [filed] before me. So I have plenty of information about [defendant]. And you really don’t need to repeat it because I have read all of that information.”

Defense counsel then summarized as follows: “Basically, your Honor, what we are looking at is a request that is being made based on what he’s done since the time of the committed offense. [Defendant went to prison, got out, and went back to his prior lifestyle into drugs. He was arrested in this case and made a number of phone calls from jail.] [¶] [This] conduct that, you know, quite frankly he should be ashamed of, but what he did was he stopped that at that point. [¶] At the end of July from that point on, you don’t see anything further. If you look at his--at his file, if you look at what he’s done since he’s been in the facility he hadn’t been in trouble. He hasn’t had any write-ups, he hasn’t had any problems, he hasn’t had any difficulties at all since he’s been in custody. He’s made that change. [¶] There was a significant time period in there that he did things that he basically, as he viewed it, he had to do to get out of where he was coming from. He got out of the situation of the people and they involved the past. I think most of that is explained in the declarations that have been provided to you and hopefully that’s understandable to the Court. I think [defendant] can probably clarify some of that in addressing the Court. [¶] But what I’m suggesting here is that that turnaround, that change that he’s made, and what he’s done in terms of removing himself from the gang lifestyle is the trigger that should cause this Court to strike one of the strikes.”

Afterward, defendant addressed the court and acknowledged making mistakes, in particular, having to pay “some old debt back” causing him to fear for his family “because of the people that [he] dealt with, you know, they don’t take no for an answer.” When the trial court asked for the truth about the incident in question, defendant explained that he (1) went to pick up the car believing that Harp had left drugs in the car, (2) jumped into the car, moved the seat, and a shotgun that he had sold to Harp went off, and (3) got rid of the gun to keep Harp from getting involved. He then affirmed that he had kept away from gang members in jail and no longer gets in trouble.

The trial court then announced as follows: “And I think this is a case that speaks to the heart of the Three Strikes Law. [¶] And this--this is the exact intent of the Three Strikes Law. And that’s why I’m concerned about obviously what you’re stating, but I keep coming back to the fact that [defendant] is a three striker. He has violent and serious crimes from the past and for a variety of reasons. He has since he was 19 years old has been--spent most of his life in prison. This is the kind of person that the legislature and [voters] of the state had in mind when they passed the three Strikes Law. [¶] And I--I think that when one reads the volume of material that I have in this case, that I come up away with that conclusion.” It later added: “On the positive side of [the] Court’s analysis, the Court notes the defendant is 33 years old. He is addicted to methamphetamine. He has made some attempts that have been sealed in the Court’s record, and I’m not going to discuss them on the record today. But the Court is aware of attempts that [defendant] has made and sealed by the Court. [¶] With regard to his background, character and prospects, I think they are dim. In the last 13 years he’s either been incarcerated, on probation or on parole. He’s--so the Court believes that [defendant], comes squarely within the meaning of the Three Strikes Law as intended by the legislature and by the voters of the State of California. I do not believe that this is an appropriate case in which to exercise the Court’s discretion, and I will not exercise discretion at this time.”

MOTION TO DISMISS

Defendant contends that the trial court abused its discretion by denying his motion to dismiss because it (1) gave insufficient weight to the nature and circumstances of his present offenses, (2) gave insufficient weight to his amenability for rehabilitation, and (3) failed to consider whether a lesser sentence would be consistent with the purposes of the Three Strikes law.

Defendant manifestly fails to meet his appellate burden. He advances no more than a reargument.

“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.” (§ 1385, subd. (a).)

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (hereafter Romero), the California Supreme Court held that “section 1385[, subdivision] (a) does permit a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” (Id. at pp. 529-530.) The trial court may strike such prior convictions “ ‘in the furtherance of justice’ ” so that a defendant is not subject to the statutorily increased penalty. (Id. at p. 529.) The language “in furtherance of justice” requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. (Id. at pp. 530-531.)

The court provided further guidance in People v. Williams (1998) 17 Cal.4th 148: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question 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.” (Id. at p. 161.) The language in Romero, “ ‘ “ ‘interests of society represented by the People,’ ” ’ ” connotes the interests of society “in ‘the fair prosecution of crimes properly alleged.’ ” (Id. at p. 159.)

To establish an abuse of discretion, an appellant has the burden “ ‘to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” ’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Arguably, the trial court could have accepted defendant’s points and stricken the prior. But it does not follow that rejecting defendant’s arguments was irrational.

The reasonable exercise of the court’s discretion is clearly manifested in its comments on the record. Defendant’s criminality consists of 11 felony convictions and six misdemeanor convictions. Defendant was on parole at the time of the instant offense. The strike priors were for witness intimidation and robbery. Defendant committed the first of these offenses in 1992. The trial court specifically remarked about this long-standing and extensive criminal history. It specifically acknowledged considering every piece of favorable information that defendant submitted. It implicitly placed more significance upon defendant’s longstanding inability or unwillingness to bring his behavior under control than upon defendant’s short-lived process of rehabilitation. It expressly stated that a three strike sentence would be consistent with the purpose of the Three Strikes law.

In short, the trial court expressly recognized its duty to exercise its discretion in accordance with the factors set forth in Romero and Williams. But defendant has a lengthy history of criminal behavior that culminated in the offense at issue. It is simply not irrational to give more weight to the extensive criminal history than to defendant’s interpretation of the facts and conclude that dismissing the prior would not further the interests of society. Whether this court would have reached the same conclusion is not the dispositive question. Because the trial court did not exceed the bounds of reason, we must uphold its denial of defendant’s motion.

SECTION 654

Section 654 states, in pertinent part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Thus, multiple punishment is barred if all the charged offenses are incident to one objective and comprise an indivisible transaction. However, if defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)

We agree with the parties that the evidence supports only a conclusion that defendant’s possession of a firearm and possession of ammunition arose from the same incident. Both offenses were therefore part of one indivisible course of conduct. Accordingly, the concurrent term imposed for possession of ammunition (count 2) must be stayed. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420 [the proper procedure for disposing of a term banned by section 654 is to impose and stay sentence].)

As a general rule, the court is required to impose a restitution fund fine. (§ 1202.4, subd. (b).) An equivalent parole-revocation fine is imposed but suspended. (§ 1202.45.) For felony convictions, the fine ranges from a minimum of $200 to a maximum of $10,000. (§ 1202.4, subd. (b)(1).) The amount is subject to the trial court’s discretion. (Ibid.; People v. Lytle (1992) 10 Cal.App.4th 1, 5.) If the court decides to impose a fine in excess of the statutory minimum, it may use a statutory formula to calculate the amount, which involves multiplying $200 by the number of years of imprisonment and then by the number of counts. (§ 1202.4, subd. (b)(2).)

When the statutory formula is employed, section 654 compels the court to disregard counts for which punishment has been stayed. (People v. Le (2006) 136 Cal.App.4th 925, 933-934.) As this court said in Le, “the section 654 ban on multiple punishments is violated when the trial court considers a felony conviction for which the sentence should have been stayed pursuant to section 654 as part of the court’s calculation of the restitution fine under the formula provided by section 1202.4, subdivision (b)(2).” (Id. at p. 934.)

Here, the court expressly relied on the statutory formula in calculating the restitution fund fine. Working backward from the amount ordered in the court’s judgment ($10,000), it appears that the court multiplied $200 by defendant’s sentence of 50 years in prison and then by his two felony convictions. (See People v. Le, supra, 136 Cal.App.4th at p. 933.) But since punishment on count 2 should have been stayed under section 654, its inclusion in the formula was erroneous. (People v. Le, at p. 934.) Accordingly, we will reduce both fines to their proper amounts as calculated under section 1202.4, subdivision (b)(2), i.e., $5,000.

DISPOSITION

The judgment is modified to (1) stay the concurrent term imposed on count 2, (2) amend the amount of the restitution fine imposed under section 1202.4 to the amount of $5,000, and (3) amend the amount of the parole-revocation fine imposed under section 1202.45 to the amount of $5,000, which fine is suspended. As so modified, the judgment is affirmed.

WE CONCUR: Rushing, P.J., Elia, J.


Summaries of

People v. Chairez

California Court of Appeals, Sixth District
Jul 11, 2008
No. H031098 (Cal. Ct. App. Jul. 11, 2008)
Case details for

People v. Chairez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HECTOR CHAIREZ, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Jul 11, 2008

Citations

No. H031098 (Cal. Ct. App. Jul. 11, 2008)