Opinion
B226016
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS E. DEAN, Defendant and Appellant.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA055664)
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard F. Walmark, Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Nicholas E. Dean appeals from a judgment entered after we remanded his criminal case for resentencing. (People v. Dean (Nov. 19, 2009, B207218) [nonpub. opn.] (Dean II).)On appeal, Dean contends that the trial court abused its discretion in denying his motion to strike a prior strike offense, a 1998 conviction for burglary, for purposes of resentencing him under the "Three Strikes" law. Failing to find the type of extraordinary circumstances that would take Dean outside the spirit of the Three Strikes law, we find no error in the denial of his motion to strike. We thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In determining whether the trial court properly denied Dean's motion to strike his 1998 burglary conviction for purposes of sentencing, we consider the facts not only with respect to the offenses committed by Dean on October 12, 2006 - the offenses underlying the sentence at issue on this appeal - but also offenses he committed on June 3, 2006, for which he was resentenced at the same time he was sentenced for the October 12, 2006 offenses. The June 3, 2006 offenses were the subject of a separate appeal which resulted in our colleagues in Division Seven affirming the sentencing decision. (People v. Dean (April 16, 2009, B203623) [nonpub. opn.] (Dean I).)
Pursuant to respondent's request, we have taken judicial notice of the records in Dean's two previous appeals, Case No. B203623 (the June 3, 2006 offenses) as well as Case No. B207218 (the October 12, 2006 offenses).
June 3, 2006 Offenses, Court of Appeal Case No. B203623
Based on offenses Dean committed on June 3, 2006, he was convicted of forgery (Pen. Code, § 484f, subd. (b)) and receiving stolen property (§ 496, subd. (a)). The description of the offenses in Division Seven's opinion affirming his sentence is as follows: "[I]n the early morning of June 3, 2006, Valerie Valle discovered her wallet, containing her driver's license and a bank credit card, was missing from her car, which she had parked in her driveway.
All undesignated code references are to the California Penal Code.
"The same morning Dean checked into a motel. He signed the motel's registration card with Valle's name, handed the motel manager, Prakash Joshi, Valle's driver's license and paid the $65.99 room charge using Valle's credit card. Dean signed Valle's name on the sales slip authorizing the credit card payment. Joshi did not ask for identification or a credit card in Dean's own name, believing Dean's explanation of being in a hurry to use the bathroom and anticipating Valle, his girlfriend, to arrive within minutes to also sign the sales slip. Joshi gave Dean an electronic key card to room 314.
"When Valle telephoned her bank that morning to report the theft of her credit card, she learned it had been used to check into a motel. Valle immediately contacted police.
"Shortly thereafter, the police went to the motel and spoke to Joshi. After Joshi deactivated the electronic key card, the officers knocked on the door of room 314. They received no response. About 20 minutes later officers detained Dean as he attempted to unlock the door of room 314 with his deactivated electronic key card. Dean was arrested, and Joshi confirmed he was the person who had checked into room 314.
"During a search of room 314, officers discovered Valle's driver's license and the credit card sales slip Dean had signed with the name 'Valerie Valle.' Officers also found a store receipt bearing four numbers that matched the last four numbers of Valle's credit card and some toiletries that matched items listed on the receipt. The receipt was time and date stamped 4:17 a.m., June 3, 2006." (Dean I, supra (April 16, 2009, B203623).)
October 12, 2006 Offenses, Court of Appeal Case No. B207218
For separate offenses Dean committed on October 12, 2006, a jury convicted him on three counts: (1) receiving stolen property (§ 496, subd. (a)), (2) forgery using an access card (§ 484f, subd. (b)), and (3) theft of access card account information (§ 484e, subd. (d)).
As further discussed below, we struck Dean's conviction for receiving stolen property because he had been improperly convicted of both theft and receiving stolen property with respect to the same stolen property. (Dean II, supra (Nov. 19, 2009, B207218).)
We take the facts from our earlier opinion in Dean's first appeal: "At 5:50 a.m. on October 12, 2006, at a Walgreens store on Soledad Canyon in Santa Clarita, [Dean] used a Visa credit card in the name of Connie Finley to purchase a cup of coffee, a $100 Hyatt Hotel gift card, and a Hallmark card. Around 6:00 a.m. that morning, in preparation for a search pursuant to a warrant to be conducted later that morning, Los Angeles Police Detective Noah Stone was conducting a surveillance of a residence at 27706 Haxton Drive in Canyon Country, located about one and one-quarter miles from the Walgreens. Detective Stone observed defendant arrive in a Buick automobile, park on the street, and enter the residence carrying a cup of coffee and a small cardboard box.
"Around 7:00 a.m., Los Angeles Police Officers, assisted by sheriff's deputies, executed a search warrant at the Haxton Drive house. They encountered five people inside: [Dean], his mother (who identified herself as the owner), and his brother and two sisters. . . . [In a wallet recovered inside] Detective [William] Flannery found [Dean]'s driver's license, the Visa card in the name of Connie Finley that [Dean] had used to make the earlier purchase at Walgreens, and a Washington Mutual ATM card also in the name of Connie Finley. Detective Flannery asked [Dean] who Connie Finley was. [Dean] identified her as his girlfriend. When the detective asked for her phone number so that he could verify that [Dean] was authorized to have her credit cards, [Dean] refused to provide it.
"On the floor board of the Buick in which [Dean] had arrived, Detective Stone found the receipt from the earlier purchase at Walgreens. Detective Flannery later obtained from Walgreens the credit card sales slip for the transaction. A surveillance video from the Walgreens was played at trial showing [Dean] making his purchase there.
"When contacted by Detective Flannery, Connie Finley discovered that her Visa card and ATM card were missing from her purse. She did not know [Dean] and did not give him permission to possess or use the cards." (Dean II, supra (Nov. 19, 2009, B207218).)
Sentencing for June 3, 2006 and October 12, 2006 Offenses
After the jury returned a guilty verdict with respect to the June 3, 2006 offenses, the trial court found in a bifurcated, non-jury trial that Dean had one prior strike conviction for burglary (§§ 667, subds. (b)-(i), 1170.12, subd. (c)(1)), but found not true the allegation that he had served a prior prison term for a felony. (§ 667.5, subd. (b).) The court denied Dean's motion to dismiss the prior strike conviction for sentencing purposes pursuant to Penal Code section 1385 and People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero). (Dean I, supra (April 16, 2009, B203623).)
The trial court imposed a sentence based on the June 3, 2006 offenses which, pursuant to section 669, was subsequently vacated by the trial judge rendering judgment with respect to the offenses committed on October 12, 2006. The trial judge presiding over the case involving the October 12, 2006 set of offenses resentenced Dean for the June 3, 2006 offenses as well as sentenced him for the October 12, 2006 offenses. For the June 3, 2006 offenses, the court ordered consecutive terms of 16 months for forgery (one-third the two-year middle term, doubled under the Three Strikes law) and 16 months for receiving stolen property (one-third the two-year middle term, doubled under the Three Strikes law), as subordinate terms, to be served consecutively to the sentencing imposed for the October 12, 2006 offenses. (Dean I, supra (April 16, 2009, B203623).)
Section 669 provides in relevant part: "When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which the sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively." (§ 669.)
With respect to sentencing on the October 12, 2006 offenses, the court found that Dean had suffered one prior strike conviction for burglary (§§ 667, subds. (b)-(i), 1170.12, subd. (c)(1)) and found true the allegation that Dean was released on bail or on his own recognizance in another case when he committed the instant offenses (§ 12022.1). (Dean II, supra (Nov. 19, 2009, B207218).) The court denied Dean's Romero motion to dismiss his prior strike conviction. The court sentenced Dean to nine years, four months total: on count 1 (receiving stolen property) the court imposed a six-year term (the three-year high term, doubled under the Three Strikes law) plus two years for the on-bail enhancement; on count 2 (forgery) the court imposed a consecutive term of 16 months (eight-month middle term, doubled under the Three Strikes law); and on count 3 (theft), the court ruled that having imposed sentence on count 2, the court was required by section 654 to stay the sentence on count 3. (Dean II, supra (Nov. 19, 2009, B207218).)
On appeal, we concluded that the convictions on both counts 1 and 3 for the October 12, 2006 offenses violated the provision of section 496, subdivision (a), prohibiting conviction of stealing and receiving the same property, and that the trial court erred in failing to instruct on that prohibition. Thus, we vacated the conviction on count 1 for receiving stolen property. We remanded the case for resentencing on count 2 (forgery using an access card) and count 3 (theft of access card account information). (Dean II, supra (Nov. 19, 2009, B207218).)
Resentencing
On June 7, 2010, the trial court held a resentencing hearing. Dean argued his Romero motion to strike his prior strike offense of burglary, committed in 1998.
We hereby grant Dean's request to augment the record on appeal to include Dean's motion filed on April 15, 2010 requesting that the court strike his 1998 prior conviction for purposes of sentencing under the Three Strikes law.
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Dean went through a number of exhibits he had submitted to show "mitigating circumstances," and the court indicated that it would consider them in connection with Dean's Romero motion. The court further took note of Dean's specific arguments in his Romero motion, stating as follows: "For the record let's go over specifically what you mention in your moving papers. One of your grounds is that the prior strike is old. There was another ground that you referred to in your moving papers, age of the defendant at the time of the commission of the offense was 18. Regarding the incident, offense is minor in nature that you stated. Also mentioning the gravity of principal offense on a federal level. Regarding four it states [you have] no history of violence in your moving papers. Fifthly, regarding moving papers that you've had adequate time to reflect on ill-fated decision, that you have in the body of your paperwork. Regarding six, that you more than cooperated in your rehabilitation. Regarding seven, recent legislation for non-violent offenders. In addition to those seven factors you said you wanted to add two more?" Dean then cited several cases and argued that the burglary offense was not the same type of criminal behavior exhibited by his more recent offenses.
The court noted that Dean had made a Romero motion when he was originally sentenced as well. Dean responded that since then he had worked to rehabilitate himself in prison, and that his character and outlook had changed.
The prosecution opposed the motion, and the court ruled as follows: "Regarding the Romero factors, the court will respectfully deny the request to strike the strike at this time."
After Dean made additional motions and the court made its sentencing decision, Dean asked the court to "give a reason why the strike prior is going to be used in the subordinate counts or, for instance, why it was not stricken?" The court replied that the ruling "will remain in full force and effect." At a subsequent hearing on July 14, 2010, Dean again asked the court to state a reason for denying the motion. The court again responded only that its prior rulings would stand.
The court resentenced Dean to a total of eight years for the October 12, 2006 offenses: for base count 2 (forgery), he received the upper term of three years, which was doubled to six years (§§ 667, subds. (b)-(i), 1170.12, subd. (c)(1)), plus two years for the on-bail enhancement (§ 12022.1). On count 3 (theft), the court imposed an eight-month sentence (one-third the middle term of two years) and stayed the sentence pursuant to section 654.
For the June 3, 2006 offenses, the court imposed the same sentence as originally imposed: 16 months for forgery (one-third the two-year middle term, doubled under the Three Strikes law) and 16 months for receiving stolen property (one-third the two-year middle term, doubled) as subordinate terms, to be served consecutively to the sentencing imposed for the October 12, 2006 offenses.
Dean timely appealed from the resentencing judgment with respect to the October 12, 2006 offenses only.
DISCUSSION
Dean contends that in resentencing him on the October 12, 2006 offenses, the trial court abused its discretion in denying his motion to strike his 1998 conviction for burglary pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. Dean argues that the following facts should have compelled the trial court to strike that 1998 burglary offense: (1) as of 2010, the offense was 12 years old; (2) Dean was only 18 years old at the time he committed the offense; (3) the offense was non-violent; (4) the current case involved a "non-violent and non-serious felony"; and (5) Dean's rehabilitation efforts in prison demonstrate that he has cooperated in his rehabilitation and made substantial progress towards a crime-free life. Dean asserts that the trial court abused its discretion by failing to consider these factors and conduct an individualized evaluation of his situation, and instead, summarily denying his motion.
The purpose of the Three Strikes law is "'to restrict courts' discretion in sentencing repeat offenders.' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)"To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."' [Citation.]" (Ibid.)
Before striking a prior felony conviction for purposes of sentencing, a trial court "must consider whether, in light of the nature and circumstances of [the defendant's] 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." (People v. Williams (1998) 17 Cal.4th 148, 161.) "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 [Three Strikes] 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." (Carmony, supra, 33 Cal.4th at p. 378.)
"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (Carmony, supra, 33 Cal.4th at p. 374.) Dean bears the burden of showing that the trial court's sentencing decision was "so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) "[T]he law creates a strong presumption that any sentence that conforms to [the Three Strikes laws] sentencing norms is both rational and proper." (Id. at p. 378.) Therefore, only in limited circumstances will we find an abuse of discretion in refusing to strike prior convictions in a Three Strikes situation. These include cases where the trial court was unaware of its discretion, where it considered impermissible factors, or where a Three Strikes sentence, as a matter of law, results in an arbitrary, capricious or patently absurd sentence. (Ibid.)On the other hand, "[w]here the record is silent [citation], or „[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]." (Ibid.)
Here, contrary to Dean's arguments, the record demonstrates that the court was aware of the relevant factors and considered them before denying Dean's motion to strike the burglary offense. The trial court specifically noted on the record each of Dean's arguments in support of his motion, and also took note of the exhibits submitted by Dean in his support of his argument that mitigating circumstances justified striking the conviction. It is inconsequential that the trial court did not explicitly state its reasons for denying the motion: "[W]hile a court must explain its reasons for striking a prior [citations], no similar requirement applies when a court declines to strike a prior [citation]." (In re Large (2007) 41 Cal.4th 538, 550.) "The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Given Dean's criminal record, we cannot find that the trial court abused its discretion in concluding that no extraordinary circumstances take Dean outside the spirit of the law. The trial court was responsible not only for sentencing Dean on the October 12, 2006 offenses, but also for resentencing him for the June 3, 2006 offenses. The court thus was aware not only that Dean committed the October 12, 2006 offenses while out on bail following his arrest for the June 3, 2006 offenses, but also that both sets of offenses involved the same fraudulent use of victims' credit cards. Such recidivist behavior is not indicative of an individual who should be treated as falling outside the spirit of the Three Strikes scheme.
Moreover, the record before the trial court with respect to the June 3, 2006 offenses reveals that Dean's criminal history began in 1996 when he was still a juvenile, and after his 1998 conviction for burglary, he was convicted of four other crimes between 1998 and 2004, including three misdemeanor convictions for more minor offenses but also one felony conviction on federal charges for the fraudulent use of an unauthorized access device. It is not necessary that a defendant's criminal history consist "entirely or principally of violent or serious felonies to bring a defendant within the spirit of the Three Strikes law" (People v. Strong (2001) 87 Cal.App.4th 328, 340), and in determining whether a defendant falls outside the spirit of the Three Strikes law, courts may consider whether the defendant has misdemeanor as well as felony convictions. (People v. McGlothin (1998) 67 Cal.App.4th 468, 475.) Given Dean's lengthy and extensive criminal history, the supposedly mitigating factors he cites, including the alleged remoteness of his 1998 burglary conviction, his young age at the time of its commission, the non-violent nature of the present offenses as well as the burglary, and his recent attempts at rehabilitation while in prison, are not sufficient to take Dean outside the spirit of the Three Strikes law. (See People v. Strong, supra, 87 Cal.App.4th at pp. 343-346.) The trial court did not abuse its discretion in denying Dean's motion to strike his 1998 burglary conviction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.