Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD200398, Michael D. Wellington, Judge.
HUFFMAN, J.
During the jury selection process in his criminal trial, Antonio A. Diaz entered a guilty plea to one count of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and one count of being in possession of a hypodermic needle (Bus. & Prof. Code, § 4140). Diaz also admitted a serious/violent felony prior conviction within the meaning of section 667, subdivisions (b) through (i). Diaz did not receive any promises in return for his guilty pleas.
All further statutory references are to the Penal Code unless otherwise specified.
At the time of sentencing Diaz requested the trial court to strike the serious/violent felony prior conviction. The trial court denied the motion to strike and sentenced Diaz to a doubled middle term of four years plus eight months consecutive sentence for the revocation of his probation for a recent felony conviction for receiving stolen property.
Diaz appeals, challenging only the trial court's decision to deny his motion to strike his serious/violent felony prior conviction. He contends the trial court abused its discretion in denying the motion to strike. We find his contention wholly without merit and affirm the judgment.
STATEMENT OF FACTS
On July 23, 2006, San Diego Police officers arrested Diaz for possession of a firearm by a felon. A semiautomatic handgun was discovered in a holster, tucked into appellant's waistband. The gun was not visible until appellant's shirt was pulled up. The magazine contained seven rounds of live ammunition. A search of appellant's duffle bag produced a capped hypodermic syringe.
DISCUSSION
Diaz quotes portions of the trial judge's sentencing remarks at the time the judge denied the motion to strike the prior conviction. Based on those partial statements, Diaz then contends the trial court abused its discretion because it relied on matters for which there was no substantial evidence. We find that Diaz has unfairly selected portions of the trial judge's remarks which inaccurately portray the basis of the judge's decision. Our review of the entire record and the totality of the trial judge's statements lead us to conclude the trial court was fully aware of its discretion and of all of the issues relating to the exercise of its discretion. We are also satisfied the trial court acted properly within its broad sentencing discretion when it denied the motion to strike.
Trial courts have discretion to strike serious/violent felony prior convictions in the furtherance of justice pursuant to section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In making its decision to grant or deny a motion to strike such prior conviction, the court must consider the legitimate interest of the public in the enforcement of legislatively mandated sentencing systems. A court striking a serious/violent felony conviction must determine whether the defendant is a person who should be deemed within the spirit of the three strikes law and, if the court strikes the prior, it must state sound reasons for that decision in the written minutes of the court. (People v. Williams (1998) 17 Cal.4th 148, 159-161 (Williams); People v. Orin (1975) 13 Cal.3d 937, 945.)
Based upon an examination of the three strikes law and the directions from the California Supreme Court regarding its application, we conclude the sentences required under the statutory scheme are the legislatively preferred sentences and that the trial court may only strike such prior convictions when there are sound reasons to believe the defendant falls either partially, or wholly outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th at p. 161; People v. Carmony (2004) 33 Cal.4th 367, 377-378 (Carmony).)
We review the trial court's decision at sentencing under the deferential abuse of discretion standard. In other words, the person challenging the trial court's decision must show the decision to be irrational, arbitrary or of the type that no reasonable person would make. (Carmony, supra, 33 Cal.4th at pp. 376-378.) The fact that reasonable trial judges might have differed in the choice of sentencing options does not demonstrate an abuse of discretion.
We set forth here the trial judge's entire statement of reasons for denying the motion to strike. As a preface for that statement, the record demonstrates the trial judge had written submissions from both the prosecution and defense and that he had read those materials as well as the probation report and letters from Diaz. The trial judge said:
"I have wrestled a little with this. I'm reasonably convinced that Mr. Diaz has had some mental health problems. I don't doubt the depression. I do note that he was taken to county mental health on his arrest in this case. But none of those rise to the level of a defense here. They rise to the level of me having some sympathy for a man who's in a bad situation.
"The -- the age of the strike argues for the defense position. It's almost 25 years old. It's a long time. But it was a residential burglary. There's a lot of crimes that are strikes. One of the more dangerous ones is residential burglary. Somebody finds somebody rooting around their home, that gets to be a dangerous situation real quick. It's been a significant period of time. He was relatively crime-free for a fair amount of time after that.
"But now, in short order, we've got two significant -- I can't use the word 'serious' because that has separate, statutory meaning here -- but two significant crimes.
"He's got the receiving stolen property in 2005 with all the things that went with it, including, I'm confident, an express explanation to him about the consequences of owning a gun. If, for no other reason, the statute requires a judge to remind every defendant convicted of a felony that they are barred from ever possessing a gun and handing out a document from the Department of Justice that explains that.
"I'm confident that he had that explained to him. In addition, it was formalized further in the restraining order and the specific order with regard to the firearm possession.
"Here's the part that I have the biggest concern about: the current crime is pretty serious, and I will use that phrase. It's not statutorily a, quote 'serious felony,' end quote, but we're talking about somebody with a history of bad judgment, with a criminal history, who's now got some mental concerns, who is -- who's got a hypodermic needle in his possession, no drugs in his possession, but there's just the concern about drugs and guns together.
"I find the, 'I was going to use the needle to inject an air bubble into my veins,' difficult to accept. I also find it very difficult to accept the notion that he was just holding that gun to keep the community safe. He may well have found it. People dispose of guns running from the police. They hide them and they throw them.
"I don't know if he found it or not. He had it for a significant period of time. He said he was having discussions with people about whether he should buy it -- or sell it. He passes up a number of opportunities to turn it over to someone else safe.
"He certainly didn't greet the officer who arrested him with open arms, 'oh boy. I've been looking for a cop. I'm so glad to see you. Here's this gun I found. Can you take it off my hands?' He played it cagey until he was asked a direct question after the cop knew he was on probation. I don't find the circumstances warrant the striking of the strike, and so the motion is denied."
In his challenge to the sentence in this case, Diaz takes portions of the court's statements regarding the defendant's mental health and possible drug use out of context. He then construes the record in the light most favorable to his position to argue his contention. Essentially Diaz argues the trial judge relied on a mistaken view that Diaz was mentally ill and was using the gun together with the use of drugs. He also argues the trial judge gave too much weight to the nature of the "strike" prior. Neither argument has any rational grounding in the record on appeal.
The trial judge was aware the prior conviction was old. He was also aware that for over 20 years Diaz was involved in fairly minor criminal activity. The court considered those facts as weighing in favor of striking the prior. On the other hand, the court did not accept Diaz's self-serving statements as accurately portraying his involvement with the gun. The court also considered the fact Diaz was on felony probation at the time he was arrested in possession of a loaded, concealed handgun. The court reasoned that Diaz was fully aware he could not legally possess a firearm. The court was also aware that Diaz had the benefit of leniency when he was granted probation, only months before the current offense, when a trial court struck the serious/violent felony prior in order to grant him probation. A reasonable trial judge could easily conclude that the fact of his recent conviction, probation grant and prompt commission of a new felony more than offset the age of the serious/violent felony prior.
Finally, the trial judge did not abuse his discretion in rejecting the explanation given for the possession of the syringe. Diaz had a history of drug use, although he denied current use. Having rejected the explanation that Diaz planned to use the syringe to commit suicide, the court could reasonably draw an inference that paraphernalia frequently used for street drug activity was likely being possessed for drug related purposes. Nor did the trial judge err in expressing concern for Diaz's mental state. Diaz admitted suicidal ideas, was depressed and was receiving medication to address his mental issues.
In short, the trial court could reasonably conclude Diaz, as a recent recidivist, possessing a concealed firearm, fell squarely within the spirit of the three strikes law. (Williams, supra, 17 Cal.4th at pp. 159-161; Carmony, supra, 33 Cal.4th at pp. 376-378.)
Because we are satisfied the trial court had more than adequate basis for the exercise of its discretion, we decline to engage in an analysis of the cases cited by Diaz dealing with sufficiency of the evidence supporting a sentencing decision as a possible basis for finding an abuse of discretion.
DISPOSITION
The judgment is affirmed.
I CONCUR: BENKE, Acting P. J.
I CONCUR IN THE RESULT: McDONALD, J.