Opinion
B186287
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. TYRONE PRINCE DENMARK, Defendant and Appellant.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Tyrone Prince Denmark appeals from the judgment entered following his conviction by jury of first degree residential burglary with a person present (Pen. Code, §§ 459, 667.5, subd. (c)(21)) with admissions that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for nine years.
We hold the trial court properly denied appellants Pitchess motion. To the extent the motion sought information relating to the alleged dishonesty of three officers to show they fabricated that appellant waived his Miranda rights and made a statement, appellant failed to establish a plausible factual foundation that the officers committed misconduct. The supporting declaration of appellants trial counsel conclusorily asserted that she "expect[ed]" unspecified "evidence" to show the officers were fabricating. To the extent the motion sought information relating to the alleged dishonesty of the officers to show they committed other fabrications, including fabricating witnesses identifications of appellant during field showups, appellant waived the issue by failing to raise it below. In any event, the conclusory assertion of appellants trial counsel that she expected evidence to show the officers were fabricating failed to establish a plausible factual foundation that the officers fabricated anything. To the extent the motion sought information other than evidence relating to the alleged dishonesty of the officers, the motion was overbroad.
Finally, in light of the strength of the evidence that appellant committed the present offense, any trial court error in denying appellants Pitchess motion to the extent it sought information to show that the officers fabricated that appellant waived his Miranda rights and made a statement was not prejudicial.
We hold the trial court properly refused to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior felony conviction. In light of the nature and circumstances of appellants current felony offense and the qualifying prior conviction (a 1999 attempted first degree residential burglary conviction), and in light of the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the prior conviction. Therefore, the trial court did not abuse its discretion by refusing to strike the prior conviction.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on February 6, 2004, appellant burglarized a Los Angeles apartment where Diana Ng lived. We will provide additional facts below where pertinent.
CONTENTIONS
Appellant contends the trial court (1) erred by denying his Pitchess motion and (2) abused its discretion by denying his request to dismiss a prior felony conviction.
DISCUSSION
1. The Trial Court Properly Denied Appellants Pitchess Motion.
a. Pertinent Facts.
On May 12, 2004, appellant filed a pretrial discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The motion sought an order requiring, inter alia, the Los Angeles Police Department (LAPD) to make available "[a]ll complaints from any and all sources relating to acts of lying, false police reports, fabrication of evidence, racial bias, gender bias, ethnic bias, coercive conduct, [and] violation of constitutional rights, against" Los Angeles Police Officers Jason Malik, Charles Patterson, and R. Duke.
The motion also sought "[a]ll complaints . . . of officer misconduct amounting to moral turpitude . . . , including but not limited to allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, using excessive force, making false arrests, writing false police reports to cover up the use of excessive force, and false or misleading internal reports . . . ." The motion sought related documents and information.
(1) The Police Report.
(a) Events Leading to Appellants Detention.
The police report attached to the motion listed Patterson as the reporting officer and Duke as the arresting officer, and indicated, in pertinent part, as follows. About 5:55 p.m. on February 6, 2004, Los Angeles Police Officer Mark Kardiban was driving on New High toward Alpine when he saw three Black males walking behind an older Asian female who was carrying bags. This caught Kardibans attention because there had been numerous purse snatchings in the area involving elderly Asian females. The female and the three males turned westbound on Alpine and walked in that direction. As Kardiban passed the three males, they looked at him nervously several times. Kardiban stopped at Alpine and Yale to watch the males. He last saw them on the southwest corner of Alpine and Hill, walking westbound. One of them was wearing a large black jacket with white writing.
On February 6, 2004, Rigoberto Molina was a security officer hired to patrol the Chinatown area. About 6:05 p.m., Kardiban was patrolling the area of Broadway south of Alpine. Molina, riding a bicycle, flagged down Kardiban. Molina told Kardiban that Victor Rodriguez, Molinas lieutenant, had told Molina via radio that a burglary had just occurred at 815 North Hill. Molina advised Kardiban that the suspects were three Black males, and one wore a large black jacket with white writing. Molina gave Kardiban additional information describing the suspects. Kardiban recognized the suspects description as matching the three persons whom he had seen in the same area about 5:55 p.m.
Kardiban conveyed the suspects description to Patterson and Duke. As Patterson and Duke were driving on Broadway towards Cesar Chavez, the officers saw two Black males, that is, appellant and William Shaw, sitting on a bus bench at that intersection. Appellant was wearing a large dark colored jacket with white writing on it. When Kardiban arrived at the location, Shaw began walking away. Appellant and Shaw were detained.
(b) The Subsequent Investigation.
Paterson and Duke then went to the victims location at 815 North Hill. Diana Ng (Diana) was the victim. Diana told police the following. Diana was in her room with her boyfriend when she heard a door in the apartment open or close. Diana went to her parents bedroom and saw three Black males in it. Diana yelled and the three males fled out the apartments back door. Diana chased the suspects down the rear exterior stairway, along the driveway, and onto the sidewalk. As Diana chased the suspects out the driveway, she saw Rodriguez a short distance away. She called out to him that the suspects had just robbed her house and she told him to get them.
Rodriguez told police the following. Rodriguez was riding in front of 817 North Hill. He saw the three suspects run out the driveway, then northbound toward him. Diana ran out and yelled that the suspects had just robbed her house. Rodriguez pursued the suspects. Rodriguez specifically noted the design on the back of appellants jacket and, on the back of Shaws jacket, a large smudge which resulted from a fall. Rodriguez also specifically noted the hairstyle of suspect three, who was wearing his hair in large buns. Suspect three ran eastbound across Hill. Rodriguez continued pursuing appellant and Shaw. Appellant and Shaw ran to Broadway and College, where they boarded a bus heading southbound on Broadway. Rodriguez immediately told Molina via radio what had occurred.
Molina told police he received information regarding the burglary, including the suspects descriptions, from Rodriguez. As Molina was approaching Broadway and Cesar Chavez, he saw appellant and Shaw walking toward Molina, northbound, from the southwest corner of that intersection. The suspects passed him, sat on the bus bench, and acted nervously.
Malik and his partner later took Diana and Rodriguez separately to field showups. When Diana saw appellant, she told police that she thought appellant was one of the suspects that she had seen in her house, but she could not be sure. Diana positively identified Shaw. Rodriguez positively identified appellant and Shaw. Rodriguez indicated he recognized their faces and clothing, and remembered the design on the back of appellants jacket and the smudge on Shaws jacket.
After the field showups, Patterson returned to Dianas apartment. Diana indicated that her sisters glasses were missing from her sisters bedroom, and were found on the rear exterior stairway to the apartment. Connie Ng (Connie), Dianas sister, told police that she had seen Diana running down the sidewalk to Rodriguez and had seen Diana tell him what had happened. Connie also saw three suspects running, saw one of the suspects leave the other two, and saw the remaining two suspects board a bus. By the time Patterson spoke with Connie, appellant and Shaw already had been transported to jail. (c) Police Interviews.
Malik interviewed appellant at the police station. Malik admonished appellant concerning his Miranda rights, and appellant waived them. Appellant told Malik that appellant never entered the apartment and the whole idea was "BGs."
Los Angeles Police Officer Ramirez interviewed Shaw. Ramirez admonished Shaw concerning his Miranda rights, and Shaw waived them. Shaw told Ramirez the following. Shaw, appellant, and BG had gone downtown to buy clothes. While downtown, BG asked Shaw if Shaw wanted to make money robbing people. Shaw indicated that he did not. They went to Chinatown, where they saw Kardiban. After Kardiban passed by, they changed directions and went up a driveway to Dianas apartment. At Dianas apartment they saw an open door, and BG opened it further. They all entered Dianas apartment. Shaw remained in the kitchen as a lookout while BG and appellant began searching the apartment. The suspects fled when they heard Diana yelling at them.
(d) Additional Information.
The report also indicated the following. At the police station, appellant and Shaw said it was BGs idea to burglarize the house. Shaw said BGs real name was Delshawn Goss or something similar. Police later determined Gosss true name was Delshawn Gray, and his moniker was BG. Shaw positively identified a photograph of Gray as the third suspect in the present case.
Attached to the report were two statement forms, one pertaining to appellant, the other pertaining to Shaw. The forms stated they both received Miranda admonitions, waived their rights, and wanted to talk about what happened.
(2) The Supporting Declaration of Appellants Trial Counsel.
Appellants trial counsel, Susan Roe, submitted a supporting declaration. The declaration, after discussing the facts alleged in the police report, stated, "The defense claims that this is a situation of officer dishonesty and creation of false police report. [Sic.] The defense expects the evidence to show that on the date of the incident [appellant] was in the Chinatown area with Mr. Shaw. They had come to the area to purchase a gift for [appellant]s mother. After looking around, they decided to return home by bus. While waiting at the bus stop for about 10 to 15 minutes, a police car came up to them. Neither [appellant] nor Mr. Shaw boarded a bus. When the officers approached, [appellant], in response to their questioning, admitted that he was on parole. Both were taken into custody. While at the police station, [appellant] remained silent. Thus, the defense expects the evidence to show that Officers Malik, Paterson and Duke are lying when they indicated in the police report that [appellant] gave an oral statement.
"Clearly, as to the issue of the admission, it is a situation of the officers word against [appellant], and thus, the requested materials are quite relevant. This is a case in which the victim Ms. Ng cannot identify [appellant] as one of the suspects, and the security guards only place [appellant] in the area. Hence, the officers are lying and created a false police report related to [appellant]s alleged admission to bolster an otherwise weak prosecution case. Thus, the issue is the fabrication of an admission, falsification of Miranda advisement and waiver of Miranda advisement, lying and creation of false police reports."
The declaration indicated, inter alia, that the information sought was relevant to show the officers propensity to engage in excessive force and/or conduct involving moral turpitude.
(3) Proceedings on the Motion.
On June 7, 2004, during argument on the motion, appellant conceded that a fair interpretation of the police report might be that Patterson and Duke received from Malik the information about appellants statement to Malik (hereafter, statement) that appellant never entered the apartment and the whole idea was BGs. The deputy city attorney representing LAPD at the hearing noted Diana had tentatively identified appellant and had positively identified Shaw, and that Rodriguez had positively identified appellant and Shaw. The deputy city attorney argued the identifications were inconsistent with the idea that appellant and Shaw were in Chinatown to buy a present, and it was unlikely that Malik would fabricate an exculpatory statement or one referring to a person named BG. Appellants counsel indicated she had tailored the Pitchess motion simply to address appellants alleged statement to police.
The court stated, "The motions are denied for two reasons, the reason basically is the same as to both of them, . . . its not a plausible factual foundation." The court then stated, "As to [appellant], I agree with [the deputy city attorney] when she says why would an officer fabricate a statement that says that he never entered the apartment and the whole idea was somebody elses? [¶] Now, that just doesnt make any sense whatsoever. If youre going to fabricate a statement, then the statement is going to be, I was involved. I mean, if its just a flat out lie, the guy didnt say anything and youre just going to make it up, that is not it. [Sic.] And so thats the reason for the denial as to [appellant]."
b. Analysis.
Appellant claims the trial court erred by denying his Pitchess motion. We disagree.
(1) Pertinent Law.
In Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick), the Supreme Court stated that to show good cause, defense counsels affidavit must, inter alia, "describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. . . . [¶] In other cases, the trial court hearing a Pitchess motion will have before it defense counsels affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendants averments `[v]iewed in conjunction with the police reports, and any other documents suffice to `establish a plausible factual foundation for the alleged officer misconduct . . . ." (Id. at pp. 1024-1025.)
Warrick later stated, "We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. . . . Once that burden is met, the defendant has shown materiality under section 1043." (Warrick, supra, 35 Cal.4th at p. 1026.)
(2) Application of the Law to This Case.
As to appellants alleged good cause showing supporting his request for information relating to dishonesty as to Malik, Patterson, and Duke, we note as follows. During the hearing, appellant claimed only that (1) Malik, Patterson, and Duke fabricated appellants statement that he never entered the apartment and the whole idea was BGs, and (2) they fabricated that appellant waived his Miranda rights after a proper admonition. We have quoted, at the beginning of 1.a.(2) above, the two paragraphs from Roes declaration pertinent to appellants alleged good cause factual showing. The first of the two paragraphs sets forth appellants alleged factual version of the events. The second paragraph, fairly read, is essentially legal argument and does not set forth appellants alleged factual version of the events.
By "information relating to dishonesty," we refer to acts of lying, false police reports, fabrication of evidence, and officer misconduct amounting to moral turpitude, including but not limited to allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, perjury, and making false or misleading internal reports.
Moreover, the above mentioned first paragraph was conclusory. In it, Roe indicated the "defense expect[ed]" the "evidence" to show various alleged exculpating facts demonstrating the officers fabricated appellants statement. One of the alleged exculpating facts was that, while at the police station, appellant remained silent. However, we must ask: where are the alleged facts supporting a good cause showing?
Appellant did not, through Roe, state facts concerning what the nature (testimonial, documentary, or otherwise) of the expected "evidence" was. Assuming the expected evidence was testimonial, we note appellant, through Roe, stated no facts concerning the identity of the person(s) (appellant, Shaw, Gray, a police officer, someone else?) who would testify. Nor did appellant state facts concerning when, if at all, the "expect[ed]" evidence came, or would come, into being. Nor did appellant state when he "expect[ed]" the evidence to show the alleged exculpating facts, that is, whether the showing would occur at the Pitchess hearing, or would occur merely at trial. Roe certainly did not declare, on information and belief, or otherwise, that appellant was presently denying that he gave to Malik the statement at issue. Nor did Roe declare that appellant was presently claiming that, while at the police station, he remained silent.
Moreover, although appellant, through Roe, indicated the defense expected the evidence to show that, while at the police station, appellant remained silent, appellant did not, through Roe, factually dispute that appellant was advised of, and waived, his Miranda rights. Roe did not declare, on information and belief, or otherwise, that there was existing evidence that Malik did not advise appellant of, or that appellant did not waive, his Miranda rights. Roe did not declare that appellant was presently denying that Malik advised him of his Miranda rights, or that appellant was denying that he waived his Miranda rights. Roes conclusion that she "expect[ed]" unspecified "evidence" of fabrication by officers on these issues does not compel a contrary conclusion.
Moreover, for all appellants alleged factual showing, considered in light of the police report, reflects, he waived his Miranda rights, indicated he wanted to talk about what happened, then remained silent. The alleged factual showing was not internally consistent.
Further, appellant concedes Malik claimed appellant made the statement at issue. The police report reflects, and there was no real dispute below that, by their police report, Patterson and Duke merely purported to report Maliks claim that appellant waived his Miranda rights and made the statement. Patterson and Duke were not claiming they heard appellant make the statement at issue. And Malik did not write the report.
Warrick does not hold that a defense counsels declaration of a factually unsubstantiated expectation of what unspecified alleged evidence will show establishes a plausible factual foundation for alleged officer misconduct. Nor does Warrick hold that the "relatively low threshold" (Warrick, supra, 35 Cal.4th at p. 1019) required to establish good cause may be satisfied by prefacing a narrative of allegedly exculpatory facts with an artful conclusion that the defendant "expects" the "evidence" to show those alleged facts. Appellants motion effectively claimed he anticipated a source(s) to present particular evidence of police fabrication. Even if appellant made a factual showing as to the substance of the particular evidence, he failed to make a factual showing as to the source(s) thereof, and his showing permits the very fishing expedition which the requirement of a factual showing was designed to prevent.
The trial court denied appellants Pitchess motion and concluded he had failed to establish a plausible factual foundation. We agree with that conclusion. To the extent appellants Pitchess motion sought information relating to the alleged dishonesty of Malik, Patterson, or Duke to show they fabricated that appellant waived his Miranda rights after a proper admonition and made the statement at issue, or to show that those officers falsified the police report to reflect that admonition, waiver, or statement, appellant failed to establish a plausible factual foundation that the officers committed misconduct. (Cf. California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1024-1025; City of San Jose v. Superior Court (1988) 67 Cal.App.4th 1135, 1149-1150.) We need not reach the issue of whether it was plausible that Malik (1) fabricated that appellant made a statement that referred to a person named BG or (2) fabricated a partially exculpatory statement.
Based on appellants Pitchess motion and his argument at the hearing, the only misconduct which appellant attributed to Malik, Patterson, and Duke was fabrication of the Miranda admonition and waiver, appellants statement, and the police report to the extent it reflected the admonition, waiver, and statement. Appellant concedes his Pitchess motion was tailored to address appellants statement to Malik. Therefore, to the extent appellants Pitchess motion sought information relating to the alleged dishonesty of the officers to show they "fabricated observations during field identifications" or engaged in other alleged fabrications in this case, appellant waived the issue by failing to raise it below. (Cf. People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Benson (1990) 52 Cal.3d 754, 786-787, fn. 7; People v. Rogers (1978) 21 Cal.3d 542, 548.) Moreover, even if the issue were not waived, appellant did not, through Roe, factually dispute that (1) Diana saw three suspects burglarizing her apartment and chased them, (2) Rodriguez saw the same suspects Diana was chasing, (3) Diana tentatively identified appellant and positively identified Shaw, and (4) Rodriguez positively identified appellant and Shaw. Roe did not state, on information and belief, or otherwise, that appellant was presently claiming to be true the allegedly exculpatory facts which Roe expected the "evidence" to show. To the extent appellants Pitchess motion sought information relating to the alleged dishonesty of the officers to show they "fabricated observations during field identifications" or engaged in other alleged fabrications in this case, appellant failed to establish a plausible factual foundation that the officers committed misconduct.
The issue of whether officers "fabricated observations during field identifications" is distinct from the issue of whether officers fabricated appellants statement to bolster witnesses field showup identifications of appellant. The last issue is a permutation of appellants claim, which we already have rejected, that he made a good cause factual showing that officers fabricated appellants statement.
Further, we have recited the facts as set forth in the police report concerning the burglary and identifications of appellant and Shaw. The trial court reasonably could have rejected appellants characterization of the Peoples case as weak and, therefore, reasonably could have rejected appellants argument that the officers were trying to bolster an otherwise weak case.
To the extent appellants Pitchess motion requested information other than evidence relating to dishonesty, the Pitchess motion was overbroad. (Cf. People v. Hill (2005) 131 Cal.App.4th 1089, 1096, fn. 7; see California Highway Patrol v. Superior Court, supra, 84 Cal.App.4th at p. 1021.) The trial court did not abuse its discretion by denying appellants Pitchess motion.
By information "other than evidence relating to dishonesty," we refer to information pertaining to racial, gender, or ethnic bias, coercive conduct, a violation(s) of constitutional rights, use of excessive force, and writing of false police reports to conceal the use of excessive force.
Finally, even if the trial court erred by denying appellants Pitchess motion, the evidence at trial was largely consistent with the police version of what occurred as reflected in the police report. Moreover, at trial, Diana positively identified appellant as one of the persons in her apartment, Connie positively identified appellant as one of the persons running from it, and Rodriguez positively identified appellant as one of the three persons he saw fleeing. Appellant concedes the Peoples evidence established he was running from Dianas apartment. In defense, appellant presented evidence suggesting he was misidentified as one of the burglars.
In short, any trial court error in denying appellants Pitchess motion to the extent it sought information relating to the dishonesty of Malik, Patterson, or Duke to show they fabricated that appellant waived his Miranda rights after a proper admonition and made the statement at issue, or to show they falsified the police report to reflect that admonition, waiver, and statement, was not prejudicial. (Cf. People v. Memro (1985) 38 Cal.3d 658, 684; People v. Watson (1956) 46 Cal.2d 818, 836.)
2. The Trial Court Properly Denied Appellants Motion to Strike the Prior Felony Conviction.
a. Pertinent Facts.
The information alleged, inter alia, that, based on a 1999 conviction for attempted first degree residential burglary in case No. YA040251, appellant suffered a prior felony conviction under the Three Strikes law. A preconviction probation report prepared for a March 2004 hearing reflects as follows. Appellant was born in 1979 and had a moniker. Appellant suffered a 1999 conviction for attempted burglary and receiving stolen property in case No. YA040251. In that matter, the court suspended proceedings and placed appellant on formal probation for three years. In August 2000, the court revoked appellants probation and ordered that the matter be heard with case No. VA060673. In September 2003, in case No. YA040251, the court sentenced appellant to prison for three years, concurrent with his sentence in case No. VA060673.
In September 2000, in case No. VA060673, appellant pled guilty to committing grand theft of property, and admitted having suffered a prior prison term for purposes of Penal Code section 667.5, subdivision (b). The court sentenced him to prison for two-years eight-months and, in September 2003, appellant was released on parole. In July 2003, appellant pled no contest to attempted receiving stolen property, a misdemeanor. In July 2004, a parole violation report was submitted based on appellants alleged commission of residential burglary. The probation report reflects appellant made himself available for parole supervision contacts, and his sister indicated he had enrolled in college. Appellant was unemployed, he was on parole at the time of his arrest in the present case, and he would remain on parole until September 24, 2006. The report recommended that the court deny appellant probation and sentence him to prison.
In the present case, in August 2004, appellant admitted in court that he had suffered a prior felony conviction under the Three Strikes law based on the 1999 conviction for attempted first degree residential burglary in case No. YA040251. On March 9, 2005, appellant filed a lengthy sentencing memorandum which included a request to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior felony conviction. In support of his request, appellant, in the written motion, argued as follows. Appellant would receive a lengthy sentence even if the court struck the prior felony conviction. Appellant made no physical contact with the victim, and no property loss occurred. Appellant was young, had a troubled background, was under the influence at the time of the present offense, and was only a passive participant.
The sentencing memorandum was 14 pages, attached to which were an 11-page mitigation memorandum plus 113 pages of exhibits. The exhibits were copies of appellants school records, his dependency records, letters of support from his family, and early photographs of appellant and his younger brother.
On March 10, 2005, the People filed a sentencing memorandum and opposition to appellants request to strike the prior felony conviction. In May 2005, the court ordered a diagnostic study pursuant to Penal Code section 1203.03. The court indicated it wanted to consider everything it could to determine, inter alia, whether to strike the prior felony conviction. On September 26, 2005, the diagnostic study was filed with the court. It reflected a difference of opinion between the correctional counselor and a staff psychologist on the issue of whether appellant should be placed on probation. As a result, the associate warden reported that, following an administrative review, it had been determined that appellant was unsuitable for probation. The study also reflects appellant suffered a juvenile adjudication for burglary, and insisted he was innocent in the present case.
At sentencing on September 26, 2005, the court indicated it had read the probation report and the parties sentencing memoranda, including appellants request to strike the prior felony conviction and the Peoples opposition to that request. The court also indicated it had read the diagnostic study.
After argument, the court indicated as follows. The court had given the matter serious thought. The court was disappointed that appellant continued to protest his innocence in the present case. The court considered the statements which appellant and Shaw made to police after waiving their Miranda rights. Appellant claimed he was under the influence of "sherms," but also protested his innocence. Someone perhaps had recommended probation based on the facts that appellants family supported him, his mother was a crack addict when appellant was abused, and appellant had substance abuse problems. However, appellant was not taking responsibility for anything, and his past conduct showed he had learned nothing.
The court said that, in 1999, appellant was convicted of attempted first degree residential burglary, he was placed on probation for three years with counseling, and a probation violation hearing had occurred. He later went to prison for two years, and subsequently had another case. The court denied appellants request to strike the prior felony conviction.
b. Analysis.
Appellant claims the trial court erroneously refused to strike, pursuant to Penal Code section 1385, appellants Three Strikes law prior felony conviction. We disagree. The court read the probation report, the parties sentencing memoranda, including appellants request to strike the prior felony conviction and the Peoples opposition thereto, and the diagnostic study. The court also heard argument from the parties.
If we accepted appellants claim, we would be holding that the courts denial of appellants request to strike the prior felony conviction was irrational, capricious, or patently absurd (People v. Delgado (1992) 10 Cal.App.4th 1837, 1845; In re Arthur C. (1985) 176 Cal.App.3d 442, 446) and without even a fairly debatable justification. (People v. Clark (1992) 3 Cal.4th 41, 111.) Based on the record in the present case, we cannot come to that conclusion. In light of the nature and circumstances of appellants current felony offense and the qualifying strike, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the strike, and may not be treated as though he previously had not suffered it. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161-164.)
We hold that the trial courts order refusing to strike the Three Strikes law prior felony conviction was sound, and not an abuse of discretion. (Cf. People v. Williams, supra, 17 Cal.4th at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.) None of the cases cited by appellant, or his argument, compel a contrary conclusion.
DISPOSITION
The judgment is affirmed.
We concur:
CROSKEY, Acting P. J.
ALDRICH, J.