Opinion
F078297
03-23-2020
THE PEOPLE, Plaintiff and Respondent, v. JOEL JAMES CLOUD, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 4005910)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J. and De Santos, J.
-ooOoo-
A jury convicted Joel James Cloud (defendant) of possessing methamphetamine in jail (Pen. Code, § 4573.6; count 1) and resisting an executive officer (§ 69; count 2). Following a bifurcated trial, the jury further found he had a prior felony conviction that constituted a strike. (§ 667, subd. (d).) He was sentenced to six years in prison and ordered to pay various fees, fines, and assessments. On appeal, he contends the trial court erred by refusing to dismiss his prior strike conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree and affirm.
All statutory references are to the Penal Code unless otherwise stated.
The jury acquitted defendant of count 3, assaulting a custodial officer. (§ 241.1.) Pursuant to the People's motion, allegations defendant served two prior prison terms (§ 667.5, subd. (b)) were stricken. --------
FACTS
The Offenses
On December 4, 2017, defendant was in custody at the Public Safety Center and was being processed into the Stanislaus County jail. The prosecution's evidence showed that as he was changing from street clothing into jailhouse attire, defendant attempted to dispose of a package later found to hold 0.16 grams of a substance containing methamphetamine. Defendant first threw the package into the corner of the changing cell, then scuffled with a deputy and tried to put the package in his mouth. Defendant then inserted it into his anal cavity. He subsequently told the investigating officer that he had found the package in a holding cell and, believing it to be methamphetamine, collected it for his own use. Defendant testified at trial that the package was already on the ground in the changing cell at the time he was changing his clothes. When the deputy saw it and asked what it was, defendant grabbed it. He did not know what, if anything, it contained.
Sentencing
Defendant was born in December 1979. In July 1998, he was convicted of carjacking (§ 215, subd. (a)) and sentenced to nine years in prison. Execution of sentence was suspended, and he was placed on probation with a jail term as a condition thereof. According to the probation officer's report, in March 2000, defendant's probation was revoked and his prison term executed. That same month, he was convicted of misdemeanor escape (§ 4532, subd. (b)) and given a concurrent jail sentence. In July 2010, he was convicted of misdemeanor battery (§ 242) and placed on probation with a jail term. In May 2013, he was convicted of felony evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and sentenced to five years in prison. In January 2017, he was convicted of misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and placed on probation with a jail term. In September 2017, he was convicted of misdemeanor trespassing (§ 602, subd. (o)) and ordered to pay a fine. In addition to the foregoing, his postrelease community supervision was violated seven times. (§ 3455, subd. (a).)
Prior to sentencing, defendant asked the trial court to strike his prior strike conviction. He argued the carjacking conviction, which was his only strike, was 20 years old; he did not have an extensive criminal history in that he only had two felony and four misdemeanor convictions; and his last felony conviction was sustained five years earlier, while his last misdemeanor conviction was sustained one year earlier. The prosecutor acknowledged the age of the prior strike conviction, but argued it was a crime of significant violence and, in light of defendant's continued criminal behavior, the Romero request should be denied.
The court stated:
"All right. Ruling on whether to strike a prior serious and/or violent felony conviction, the Court 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
prospect, the defendant may be deemed outside of the scheme, spirit, in whole or in part, and hence should be treated as though he has not been previously convicted of one or more serious and/or violent felonies.
"The only information I have as to [defendant] is his criminal history. I have virtually no information with regard to his background, character, and prospects. Based on the fact that—the only argument in favor of striking the strike is the remoteness of the time. However, the Court feels that is far outweighed by his extensive criminal conduct since that conviction. There is simply insufficient information provided to the Court that would justify striking his 667(d) prior. Accordingly, the Court denies the request to strike the (d) prior."
The court subsequently sentenced defendant on count 2 to the middle term of two years, doubled to four years for the prior strike conviction. As to count 1, the court imposed a consecutive term of one-third the middle term, i.e., one year, doubled to two years for the prior strike conviction. The aggregate term was six years in prison.
DISCUSSION
Defendant now contends the trial court erred by refusing to strike the prior strike conviction. He says his recidivism was not the sole factor to be considered; rather, the primary goal of the trial court should have been to avoid an unjust sentence, and "[s]entencing [defendant] to six years for a victimless crime involving a small amount of drugs for his personal use was overkill." Just as recidivism is not the sole determining factor, however, neither can it be ignored.
Trial courts have limited discretion under section 1385 to dismiss prior convictions in "Three Strikes" cases. (Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising this discretion, "no weight whatsoever may be given to factors extrinsic to the [Three Strikes] scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
In deciding whether to dismiss or vacate a prior strike allegation or finding, 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." (Williams, supra, 17 Cal.4th at p. 161.) "[A] decision to strike a prior is ... an individualized one based on the particular aspects of the current offenses for which the defendant has been convicted and on the defendant's own history and personal circumstances." (People v. McGlothin (1998) 67 Cal.App.4th 468, 474.) The burden is on the defendant to provide the facts concerning the particulars of his or her background, character, and prospects. (People v. Lee (2008) 161 Cal.App.4th 124, 129.)
"[W]hen a defendant's criminal conduct has been proven to be immune from ordinary modes of punishment, one of the duties of the judiciary is to protect the public by utilizing recidivist sentencing statutes to incarcerate such persons." (People v. Castello (1998) 65 Cal.App.4th 1242, 1250-1251.) Thus, when sentencing pursuant to the Three Strikes law, objectives include protection of public safety and punishment of recidivism. (Id. at p. 1251.) By establishing a sentencing norm, circumscribing the trial court's power to depart from that norm, and requiring the court explicitly to justify its reasons for doing so, "the [Three Strikes] law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence 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.] Second, 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.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 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.)
This is not the "extraordinary case" in which "the relevant factors ... manifestly support the striking of a prior conviction and no reasonable minds could differ," such that the failure to strike constituted an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.) Defendant was almost 39 years old at the time of sentencing. His record of criminal offenses dated back to 1998, and comprised two felony and four misdemeanor convictions in addition to his two current felony convictions. He violated probation and postrelease community supervision multiple times. His record was not free of violence.
Under the circumstances, and in light of the dearth of any favorable information concerning defendant's background, character, or prospects, the trial court did not abuse its discretion in implicitly concluding defendant is " 'the kind of revolving-door career criminal for whom the Three Strikes law was devised.' " (People v. Strong (2001) 87 Cal.App.4th 328, 340, fn. omitted; see, e.g., In re Large (2007) 41 Cal.4th 538, 552; Williams, supra, 17 Cal.4th at p. 163; People v. Pearson (2008) 165 Cal.App.4th 740, 749.) This is so despite the remoteness in time of his strike offense. (See Williams, supra, 17 Cal.4th at p. 163; People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
A six-year prison term might indeed be "overkill," as defendant claims, when defendant's present offenses are considered in a vacuum. Defendant has failed, however, to establish the sentence is unjust when his continued recidivism, and the lack of record information concerning anything favorable with respect to his background, character, and prospects, are factored into the equation.
DISPOSITION
The judgment is affirmed.