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People v. Chavez

Court of Appeals of California, First Appellate District, Division Three.
Nov 25, 2003
A101780 (Cal. Ct. App. Nov. 25, 2003)

Opinion

A101780.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. JAVIER CHAVEZ, Defendant and Appellant.


Defendant Javier Chavez appeals from a judgment entered after he pled guilty to one count of possession for sale of methamphetamine. He contends that the trial court abused its discretion by denying his request to dismiss a prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.

Factual and Procedural Background

On January 5, 2002, defendant was stopped because he was driving a vehicle that fit the description of a car being driven by a homicide suspect. Upon determining that defendant was on parole and subject to a search condition, the police searched defendants vehicle and found 16.9 grams of methamphetamine and a digital scale. Defendant was arrested and charged with one count of methamphetamine possession (Health & Saf. Code, § 11378) and one count of methamphetamine transportation (Health & Saf. Code, § 11379). The information also alleged that defendant was on parole at the time of the offense (Pen. Code, § 1203.085); had suffered one prior serious felony within the meaning of Penal Code section 1170.12, subdivision (c)(1); and had three prior convictions resulting in prison terms under Penal Code section 667.5, subdivision (b), and Penal Code section 1203, subdivision (e)(4).

Defendant pled no contest to the possession count, the prior conviction allegations, and the parole allegation in exchange for the assurance that he would receive a maximum prison term of seven years. At the initial sentencing hearing, defendant testified that he had been raised by abusive parents; he had been sexually molested by a male friend of his stepfather; and he joined a gang when he was 11. Defendant testified that he was in and out of juvenile hall approximately 12 times between age 11 and age 17, when he was committed to the California Youth Authority. In the 10 years since then, the longest period of time that he can remember being out of custody is 7 months. Nonetheless, defendant testified that since his arrest in the present case, he has participated in the Choices program and has made substantial progress towards turning his life around. After defendant testified, the court permitted him to remain on bail and continued the hearing.

Defendant failed to appear at the next hearing, however, and the court issued a bench warrant. Less than two months later, the warrant was recalled when defendant was returned to court. At that time, defendant explained that he had not appeared at the prior hearing because he was afraid to return to prison and he wanted to prove to the court that he could perform well out of custody. He requested that the court dismiss the allegation of a prior strike conviction based on a 1999 rape because of his success in the Choices program. Defendant argued that there were mitigating circumstances that should be considered when evaluating his prior rape conviction, including the fact that both he and the victim were intoxicated and he did not use physical violence in the commission of the crime. He urged that these factors in conjunction with the circumstances of the present nonviolent conviction justified dismissing the prior strike. Alternatively, he asked the trial court to impose the lower term sentence for the present offense based on the same mitigating factors. The trial court denied defendants request and sentenced him to six years in state prison, determined as follows: The middle term of two years on count 1, doubled pursuant to Penal Code section 1170.12, subdivision (c)(1), plus one year each for two of the prior prison terms. Defendant filed a timely notice of appeal.

Discussion

In Romero, supra, 13 Cal.4th 497, the Supreme Court held that the trial court has discretion under Penal Code section 1385 to strike a prior conviction in furtherance of justice. The court stated that in determining whether to strike a prior conviction the trial court must consider the defendants background, the nature of the present offense, and other " `individualized considerations. " (Id. at p. 531.) In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court set forth further principles to guide the trial court in its exercise of discretion under section 1385. "[T]he 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 schemes 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." (17 Cal.4th at p. 161.) The superior courts order is reviewed under the deferential abuse of discretion standard. (People v. Garcia (1999) 20 Cal.4th 490, 503.) This standard requires that the exercise of discretion "be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)

Defendant asserts that the trial courts denial of his motion to strike his prior felony conviction under Romero was an abuse of discretion because he is outside the spirit of the three strikes law. Specifically, he argues that although he has a lengthy juvenile criminal history, including violent and gang-related crimes, his prior strike conviction and his present conviction did not involve physical violence, and over the last 10 months he has made a commitment to change his lifestyle. Respondent contends that the trial court properly considered all of the circumstances and appropriately determined that defendant falls within the statutory scheme. We agree.

With respect to defendants difficult childhood and lengthy juvenile history, the trial court noted, "Your attorney has made a passionate plea . . . for you to receive a mitigated sentence, but its hard to do that given the fact . . . that your track record—and I accept the fact that you had a horrible childhood, I think thats probably true, but not everybody who has a horrible childhood goes out and becomes a criminal and thats what you did. I mean your juvenile record is horrendous for violence, for drugs, for any number of things . . . ." With respect to the prior conviction for rape, the court stated, "I note, with regard to the rape, and I remember the testimony when you testified at the sentencing hearing, and I remember being concerned that you didnt seem to take a lot of responsibility for that other than saying it was bad and that kind of thing, but you didnt seem to have a lot of empathy, which was my concern, for the victim." Finally, with regard to defendants conduct after his arrest in the present case, the court acknowledged that "[C]hoices may [have] had a great impact on you . . . . But here we are, and I remember that when I continued the sentencing matter the People argued I should remand you and I didnt do that. I gave you the opportunity to stay out on bail, obviously that wasnt a very good decision on my part. . . ." "I can understand that you were afraid of going back to prison, but you knew [that was] going to happen, youre an adult, you have to take responsibility, you have to accept the consequences. It was silly of you to think that you were going to somehow go out and stay out of custody for six months or a year or whatever, thats just not going to happen." The trial judges observations demonstrate that she carefully and thoughtfully considered the relevant factors and determined that based on all of the circumstances defendant should be sentenced within the statutory scheme. Accordingly, the court did not abuse its discretion by not dismissing defendants prior strike.

Disposition

The judgment is affirmed.

We concur: Corrigan, Acting P. J., Parrilli, J. --------------- Notes: We likewise reject defendants alternative argument that the trial court abused its discretion by imposing the midterm rather than the low term sentence on his current conviction. Defendants brief does not devote separate attention to this contention, but suggests that the same factors discussed with regard to his Romero motion weighed in favor of the mitigated term. As set forth above, the record demonstrates that the trial court properly considered the relevant information and imposed the middle term consistent with Penal Code section 18, subdivision (b).


Summaries of

People v. Chavez

Court of Appeals of California, First Appellate District, Division Three.
Nov 25, 2003
A101780 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Chavez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAVIER CHAVEZ, Defendant and…

Court:Court of Appeals of California, First Appellate District, Division Three.

Date published: Nov 25, 2003

Citations

A101780 (Cal. Ct. App. Nov. 25, 2003)