Opinion
C082562
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. BRENDEN JAMES DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CRF14370, CRF15644)
After defendant Brenden James Davis pleaded guilty to robbery in case No. CRF14370 (case No. 370), the trial court placed him on probation for two years. Defendant subsequently pleaded no contest in case No. CRF15644 (case No. 644) to two counts of first degree robbery; he also admitted a prior strike conviction and admitted violating probation. The trial court sentenced him to nine years in prison.
Defendant now contends the trial court abused its discretion in declining to dismiss his prior strike conviction allegation. Finding no abuse of discretion, we will affirm the judgment.
BACKGROUND
Case No. 370
Maggie B. met with defendant to buy marijuana. Defendant asked for the money, but Maggie wanted to see the marijuana first. Defendant said he wanted to take a picture of the money to show the supplier. When Maggie held up the money, defendant tried to grab it from her hand. Maggie resisted, but defendant squeezed Maggie's hand until she let go of the money. He took all but $20 and fled.
Defendant pleaded guilty to robbery. The trial court suspended imposition of sentence and placed defendant on formal probation for two years.
Case No. 644
Charles P. returned home, found his front door unlocked, and contacted the police. The master bedroom had been ransacked and items were missing. On the same day and same street, Deanna and James A. contacted police to report items missing from their home. Defendant lived on that street and police spoke with him. The officers knew he was on searchable probation and his mother gave them permission to search portions of the home. Officers found items that had been reported missing.
Defendant pleaded no contest to first degree burglary. He also admitted a prior strike conviction, reserving the right to file a motion to dismiss the strike allegation, and he also admitted violating probation in case No. 370.
Prior to sentencing, defendant asked the trial court to dismiss his prior strike allegation pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant argued his prior robbery was less serious and less violent than a typical robbery; he was not armed and the amount of violence was minimal. He also pointed to his youth and his drug addiction, noting he repeatedly tested positive for drugs during probation. He argued the county should have provided treatment. In addition, defendant argued the present offenses were not serious: no one was home and there was no forced entry or damage. Moreover, defendant said aside from his prior strike conviction, his criminal record was limited to two misdemeanor convictions for driving under the influence and being drunk in public. He expressed remorse and suggested his culpability was lessened because of his addiction to "Norco, Xanax, and marijuana." Finally, defendant argued he demonstrated a willingness and ability to rehabilitate himself by being accepted in the Jericho Project residential program.
The People opposed defendant's request, arguing defendant was on probation for the prior strike offense when he committed the current offenses; the facts related to the current burglary convictions demonstrated the increasing seriousness of defendant's criminal activity; and his prior strike conviction was not "de minimis."
The trial court denied defendant's request, stating "I believe it would be an abuse of discretion to strike a strike when the defendant is still on probation for the first strike conviction." The trial court sentenced defendant to eight years in case No. 644 and a consecutive year in case No. 370, awarded custody credit, and ordered him to pay various fines and fees. Defendant did not obtain a certificate of probable cause.
DISCUSSION
Defendant contends the trial court abused its discretion in declining to dismiss his prior strike conviction allegation.
"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." ' [Citations.] 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.' " ' [Citations.] 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." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
A prior serious felony conviction can be dismissed only if the defendant falls "outside the . . . spirit" of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) In making that decision, a 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 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." (Ibid.)
Defendant's arguments on appeal are similar to the arguments he asserted in the trial court. Our review of the record confirms the trial court's decision was not irrational or arbitrary. The trial court considered the arguments presented by defendant and the People and its decision is supported by the record. The trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
DUARTE, J. /S/_________
RENNER, J.