Opinion
F053472
4-21-2008
THE PEOPLE, Plaintiff and Respondent, v. VICTOR ALVAREZ DIAZ, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
A first amended information filed on June 14, 2007, charged appellant Victor Alvarez Diaz with two counts of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)); one count of misdemeanor unauthorized possession of a hypodermic needle (Bus. & Prof. Code, § 4140); and one count of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). It further alleged Diaz had suffered a prior conviction for robbery (Pen. Code, § 211) in 2000 that qualified as a strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
The complaint was filed on January 9, 2007.
On March 21, 2007, Diaz requested a two week continuance of the pre-preliminary hearing so he could retain private counsel. The preliminary hearing was held on April 25, 2007 and Diaz was held to answer. On May 10, 2007 and June 14, 2007, the trial court heard and denied Diazs Marsden motions to relieve appointed counsel.
People v. Marsden (1970) 2 Cal.3d 118.
On June 21, 2007, the court denied Diazs request for a continuance so he could try to communicate with family members to see if they could help him hire private counsel. The court found the request untimely and that the orderly administration of justice required the matter to go forward for the following reasons: (1) the request was made on the day of trial; (2) there was no evidence Diaz made a good faith or diligent effort to retain counsel; and (3) the continuance would impose some inconvenience to subpoenaed witnesses. After the continuance was denied, Diaz accepted the Peoples offer of 32 months, waived his constitutional rights, pled guilty to all four counts and admitted all of the allegations. The court found a factual basis for the plea based on the preliminary hearing transcript and police reports, and struck the five prior prison terms pursuant to the conditions of the plea.
On August 1, 2007, Diaz moved to withdraw his plea on the ground the People had withdrawn a previous plea offer of probation after they realized he was not eligible for probation due to the strike prior. The court denied the motion. The court exercised its discretion to deny Diazs Romero motion to dismiss the strike allegation because it was relatively recent and Diaz had a long criminal history. The court sentenced Diaz to the low-term of 16 months, doubled to 32 months for both counts 1 and 2, to be served concurrently, and to time served on the two misdemeanors. The court dismissed the prior prison term allegations. The court awarded Diaz 208 days of actual custody credit plus 104 days of good time/work time credit, for a total presentence credit of 312 days, and ordered appropriate additional fines. Diazs request for a certificate of probable cause was granted and he timely appealed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Diazs appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Diaz himself, in response to this courts invitation to submit supplemental briefing, has submitted a brief in which he argues the court abused its discretion when it denied his motion to dismiss his strike prior. We will affirm.
FACTS
On January 7, 2007, at 5 p.m., Officer Mark Bishop saw Diaz sitting on a milk crate outside a mini-mart in a high narcotics area. Officer Bishop and his partner drove up to Diazs location. When they got out of the patrol car, Diaz got up and walked away. Officer Bishops partner contacted Diaz while Officer Bishop looked on the north side of the milk crate, where he found a brown paper bag. Officer Bishop asked Diaz to sit on the curb. Diaz ran. With a bystanders help, the officers detained Diaz. The officers opened the bag and found foil balls containing a dark substance and paper bindles containing white power. Once they arrested Diaz, they recovered two syringes. The dark substance was black tar heroin and the white substance was cocaine, both in usable amounts.
DISCUSSION
Diaz argues the court erred in denying his request to strike his strike conviction. There is no merit to this contention.
We use the terms "strike," in its noun form, and "strike conviction" as synonyms for "prior felony conviction" within the meaning of the "three strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Section 1385 provides, in relevant part, "The judge or magistrate may, ... in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) In Romero, supra, 13 Cal.4th at pp. 529-530, the California Supreme Court concluded that "section 1385[,] [subdivision] (a) ... permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law."
In determining whether to strike a prior conviction, a court must consider "`"both ... the constitutional rights of the defendant, and the interests of society represented by the People...."" (Romero, supra, 13 Cal.4th at p. 530, italics omitted.) "The touchstone for that determination is 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 [Three Strikes] schemes 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. Cluff (2001) 87 Cal.App.4th 991, 997-998.) A superior courts determination not to strike a strike conviction is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) "In [conducting this review], 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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." [Citation.] 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." [Citation.] 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." (Id. at pp. 376-377.)
Diaz has a long criminal history dating back to juvenile offenses in 1966 through 1971. His criminal history as an adult, which consumes three full pages in the probation report, dates back to 1972. His first prison sentence was in 1979, following his conviction for burglary (Pen. Code, § 488). Subsequently, he sustained felony convictions for petty theft with a prior (Pen. Code, § 666) in 1992 and 1996, being under the influence of a controlled substance (Health & Saf. Code, § 11550) in 1996, and robbery (Pen. Code, § 211) in 2000. Diaz violated his parole every time he was released from prison. The conviction most recent to the instant offense was in May 2006, when he was convicted of public intoxication (Pen. Code, § 647, subd. (f)). As indicated above, Diaz committed the instant offense in January 2007. The record demonstrates that Diaz has been sentenced to prison and county jail, and received multiple grants of parole.
Diaz does not dispute he has a long criminal history, but contends this history does not "fall into a pattern" which could be considered repetitious because he committed the crimes when he was in an "irresponsible drunken stupor." He also argues the court should have struck his 2000 robbery conviction because the court failed to consider the circumstances behind it, which he asserts show the crime was a non-violent offense. Diaz recognizes these arguments may be waived because his attorney did not make them before the trial court, but he asks us to nevertheless consider them in the interest of justice.
We see no abuse of discretion. Robbery is a serious felony in California which may qualify as a strike. (Pen. Code, § 1192.7, subd. (c)(19).) Diaz pled guilty to that crime in 2000, thereby admitting every element necessary to establish it. (People v. Wallace (2004) 33 Cal.4th 738, 749.) Even if Diaz had argued to the trial court that the circumstances of the robbery did not warrant treatment of the offense as a strike, Diaz has demonstrated a continuing pattern of reoffending regardless of past sanctions and attempts to rehabilitate through parole. It was not irrational for the court to refuse to treat Diaz as if he had not previously suffered a strike conviction, and we decline Diazs invitation to substitute our judgment for that of the trial court.
We have independently reviewed the record and based on that review we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.