Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC825039
Mihara, J.
Defendant Jason Marcel Davis was convicted by plea of felony receiving stolen property (Pen. Code, § 496, subd. (a)), misdemeanor spousal battery (Pen. Code, §§ 242, 243, subd. (e)), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). He admitted that he had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Defendant asked the court to reduce the felony to a misdemeanor or strike the strike prior. The court refused to do so. Defendant was sentenced to 32 months in state prison. On appeal, defendant contends that the trial court abused its discretion in refusing to reduce the felony to a misdemeanor or to strike the strike prior. We find no abuse of discretion and affirm the judgment.
I. Factual Background
On November 12, 2008, defendant telephoned his wife from a gas station and yelled and cursed at her. His wife and her daughter arrived at the gas station a short time later, and defendant grabbed his wife and pushed her in the neck. She suffered a bruise and scratches. Defendant continued to yell at his wife until a third party intervened. He and his wife then left the scene. The police were called, and they went to defendant’s residence. Defendant, who was on parole, was searched. A stolen credit card was found in his wallet, and a glass pipe was discovered on his person. Defendant was also determined to be under the influence of methamphetamine.
II. Procedural Background
Defendant was arrested and charged by complaint with felony receiving stolen property (Pen. Code, § 496, subd. (a)), misdemeanor spousal battery (Pen. Code, §§ 242, 243, subd. (e)), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). It was further alleged that defendant had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) for attempted robbery.
Defendant accepted a “court offer” under which he pleaded no contest to the receiving count and guilty to the remaining counts, and admitted the strike prior allegation in exchange for a cap on his sentence of four years in state prison with the opportunity to bring a motion to strike the strike prior.
Defendant subsequently filed a “request” that the court either reduce the receiving count to a misdemeanor or strike the strike prior. His request was supported by the following evidence. Defendant had been prescribed medication in January 2009 for post traumatic stress disorder (PTSD). He had completed seven weeks of an eight-week therapy program. Defendant was also participating in a 90-day substance abuse program in jail. The pastor at a church that defendant had attended for four months in 2008 wrote a letter in which he asserted that defendant “is a good person” who “is sincere about making a positive life change.” Defendant had been accepted into a Salvation Army rehabilitation program.
The probation report noted that defendant was 35 years old, had been on parole when he committed the current offenses, and had violated his parole by absconding and failing to enroll in and complete a drug and alcohol program. When defendant spoke to the probation officer in February 2009, he claimed that he had found the stolen property in a bag lying on the street. He admitted that he had been using methamphetamine since 1994. Defendant also admitted that he is an addict and that, despite having participated in “various drug treatment programs throughout the years,” he has repeatedly relapsed. He had failed to complete treatment programs in 1995 and 2008, but he had completed a treatment program in 2004 and then relapsed. The probation officer pointed out that, while defendant’s strike prior was 10 years old, he had been convicted in December 2005 of three counts of second degree burglary and one count of possession of stolen property, and he had repeatedly violated his parole in the years between his 1997 strike prior and his November 2008 offenses.
Defendant was a high school graduate with three children, the youngest an infant. He had a lengthy criminal record. In 1993, he was convicted of carrying a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). In 1994, defendant was convicted of inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)). In 1996, he was convicted of resisting an officer (Pen. Code, § 148, subd. (a)) and providing false identification to a peace officer (Pen. Code, § 148.9). After suffering the 1997 attempted robbery conviction that was the basis for his strike prior and resulted in a prison sentence, he violated his parole in 1999. In 2002, he was convicted of possession of a controlled substance and placed on probation for five years. Later in 2002, he violated his parole and was convicted of vandalism (Pen. Code, § 594, subd. (a)). In 2003 and again in 2004, and again in 2005, he was convicted of petty theft and spent time in jail. He was also convicted again in 2005 of possession of a controlled substance (Pen. Code, § 11377, subd. (a)). In 2005, defendant committed receiving stolen property (Pen. Code, § 496, subd. (a)) and three counts of second degree burglary (Pen. Code, § 460, subd. (b)), and he was sentenced to 32 months in state prison. In February 2008, just nine months before his current offenses, defendant was convicted of felony transporting or selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and placed on probation conditioned on a six-month jail sentence.
At the hearing on his request, defendant’s trial counsel acknowledged that defendant “has a very imperfect past.” Defendant’s wife and his mother made statements on his behalf in which they urged the court to give defendant “a break.” Defendant also made a statement in which he “apologize[d] to this Court for being such a nuisance in society.” The prosecutor pointed out that defendant had “dropped out” of a sober living facility in 2007/2008 and absconded from a residential drug treatment program in 2008. “This is a man with seven prior felony convictions, nine prior misdemeanors, over and over again he’s getting a break from the People. I think it’s this time that the People deserve a break and protection from this career criminal....” Defendant’s trial counsel responded that defendant “is not asking the Court for a break” but an opportunity to deal with his “issues.”
The court took the matter under submission for week. At the subsequent hearing, the court denied defendant’s requests. “[T]his was an extremely close case as far as the Court is concerned. I really tortured myself going back over this case....” The court explained its reasons for denying the requests. “This matter arose while the defendant was on parole. Combined with other violation factors and with the chances that he’s had to have a clean and sober existence, he’s walk[ed] away a couple of times from programs. And in my opinion, it would be a real abuse of discretion, and I simply cannot based on the fact that he has seven prior felonies, and nine prior misdemeanors and was on parole at the time of this offense, I cannot grant this motion. I’m therefore denying it as to Section 17. I realize the property in this case was rather minor, but the entire trace of this particular incident as far as the Court’s concerned the personal assault to the victim involved, which was the cohabitant involved, along with the failure to take into account the fact that he does have a substantial substance abuse problem, has played into the Court’s weighing this. [¶] I realize that he has a place to go into, the Salvation Army, and the Court would support that after he’s released on parole. I do not find that he is a viable candidate to having the strike stricken.”
The court imposed a 32-month prison term, the doubled lower term, for the receiving count and concurrent 90-day county jail terms for the misdemeanor counts. Defendant timely filed a notice of appeal challenging only his sentence.
III. Analysis
An appeal challenging a trial court’s exercise of its discretion under Penal Code section 17, subdivision (b) can succeed only if it establishes that the trial court’s decision was “ ‘irrational or arbitrary.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).) “ ‘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.’ ” (Alvarez, at pp. 977-978.) A ruling under Penal Code section 17, subdivision (b) must be based solely on “individualized consideration of the offense, the offender, and the public interest....” (Alvarez, at p. 978.) The trial court should consider “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ ” (Alvarez, at p. 978.)
Similar considerations inform a trial court’s decision whether to strike a strike prior. “[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(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 presently not committed one or more felonies and/or had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant contends that the trial court abused its discretion in failing to reduce the receiving count to a misdemeanor because the court “isolated its analysis on two factors, the violation occurring while he was on parole and his criminal history, and failed to assess the totality of appellant’s background, prospects and circumstances.” He claims that the court failed to “assess appellant’s situation in an individualized and contextual manner.”
Defendant misconstrues the record. The trial court took the matter under submission for a week to review the evidence, and, when it returned, it emphasized that it had “tortured myself” reviewing “an extremely close case” but had concluded that it “would be a real abuse of discretion” to grant the request to reduce the receiving count to a misdemeanor. The court proceeded to identify the factors that weighed against granting the request. This is the context in which the court mentioned the fact that defendant was on parole when he committed the current offenses, had a lengthy criminal history, and had “walk[ed] away” from previous opportunities to rehabilitate himself. The record in no way reflects that the trial court failed to assess all of the factors that were relevant to this decision. The fact that the court took a week to review the evidence and “tortured” itself over what it deemed a “close” case compels the conclusion that the court assessed all of the relevant factors. If the court had, as defendant suggests, considered only defendant’s criminal history and the fact that he was on parole, it would not have needed to take the matter under submission nor would it have “tortured” itself or found the case to be “close.” The trial court was not required to expressly identify on the record each and every factor that it had considered in making its decision. We find no abuse of discretion in the trial court’s refusal to reduce the receiving count to a misdemeanor.
Defendant’s challenge to the court’s refusal to strike the strike prior is essentially the same as his challenge to the court’s refusal to reduce the receiving conviction to a misdemeanor. This challenge suffers from the same flaw as that challenge, and we reject it on the same basis. The trial court did not abuse its discretion in refusing to strike the strike prior.
IV. Disposition
The judgment is affirmed.
WE CONCUR: Elia, Acting P. J., McAdams, J.