Opinion
A154133
12-14-2018
THE PEOPLE, Plaintiff and Respondent, v. DEPHONSO TYREE DUPLESSIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17-SF-013095-A)
Appellant Dephonso Duplessis (appellant) contends the trial court erred in denying his motion to dismiss a prior strike conviction pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
In November 2017, the San Mateo County District Attorney filed an information charging appellant with one count of felony receipt of a stolen vehicle (§ 496d, subd. (a)). The information also alleged appellant had prior auto theft convictions in 1996 and 2015, and a 2002 prior serious or violent felony (strike) conviction for first degree robbery (§§ 667, subd. (d), 1170.12, subd. (b)).
The charge in the November 2017 information arose from an October incident during which sheriff's deputies observed appellant enter a vehicle that had been reported stolen. Appellant provided the probation officer the following written statement regarding the offense: "I was walking homeless and I came across a car with the keys in it and the window down. It was cold and I got in and drove away. I slept in the car for 2 nights. I'm sorry but it was nice to have a warm place to sleep. I'm sorry to inconvenience the owner."
In January 2018, appellant pled no contest to the receipt of a stolen vehicle charge and admitted the prior strike, on the condition that the trial court would consider his Romero motion. In March, the court denied appellant's Romero motion and sentenced him to state prison for a four-year term (the 2-year low term, doubled). The present appeal followed.
DISCUSSION
Appellant contends the trial court erred in declining to dismiss his 2002 strike conviction under section 1385. The trial court did not abuse its discretion.
I. Statutory Background
Under section 1385, subdivision (a), a "judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." "In Romero, [the California Supreme Court] held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice' pursuant to" section 1385. (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams ).)
" '[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . [the trial court] 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 not previously been convicted of one or more serious and/or violent felonies.' " (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) " '[A] court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is' reviewable for abuse of discretion." (Carmony, at p. 373.) "[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 p. 377.)
" '[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.] 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." ' " (Carmony, supra, 33 Cal.4th at p. 377.) "[T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Id. at p. 378.)
II. The Sentencing Hearing
Following appellant's no contest plea, the probation officer prepared a report that provided detailed information explaining how appellant's traumatic upbringing contributed to his lifetime of substance abuse. The report explained that appellant, age 43, was born addicted to heroin. His parents lost custody and he lived in various foster homes. He eventually joined a family in which his older brothers enjoyed getting him "drunk," starting when he was nine years old. He also tried marijuana at age nine, cocaine at age 15, and methamphetamine at age 19. He continued to be a heavy methamphetamine-user until his arrest.
Appellant reported he never participated in a substance abuse treatment program until he entered into a program in March 2016. Appellant stayed in the program "for approximately two months with periods of compliance and non-compliance before he left the program permanently." The probation officer reported that, when appellant was asked why he did not obtain treatment during periods of release, appellant "stated he was focused on 'My freedom and sex.' " The probation officer concluded, "Time and time again [appellant] has shown to suffer from poor impulse control, poor decision making, and instant gratification, regardless of any sanctions imposed by the court or supervised probation." The probation officer continued, "The [appellant] continually demonstrates no true desire to change his criminal behavior, no true motivation to properly address his substance abuse problems and continues to re-offend while on supervision. He . . . ask[s] for opportunities and make[s] elaborate statements about his desire to change, but ultimately continues on his destructive path."
Appellant's counsel submitted a sentencing memorandum arguing that the trial court should dismiss appellant's prior strike conviction. The memorandum described appellant's 2016 two-month voluntary participation in a treatment program, appellant's applications to "numerous residential treatment programs," and appellant's pursuit of educational opportunities. Appellant's counsel argued the trial court should exercise its discretion to dismiss the prior strike conviction because appellant's "addiction has been at the heart of his prior criminal conduct," he is "sincere and serious about addressing his substance abuse issues," and he "has made significant attempts to turn his life around."
At the sentencing hearing, the trial court stated on the record that it had read appellant's sentencing brief as well as the probation officer's report and respondent's opposition. The court then asked appellant's counsel, "Is there anything else that you wanted to add?" Counsel responded that "the only other factor that wasn't in [the] sentencing brief" was information that appellant had applied to another residential treatment program. Counsel concluded, "Beyond that, I am prepared to submit on the written sentencing memorandum." The prosecutor objected to dismissing the prior strike because of appellant's "very lengthy criminal history, which includes seven felonies and six prior misdemeanors" and appellant's "abysmal record on probation and parole." In ruling, the trial court expressed its agreement with the language in the probation officer's report characterizing appellant "as someone who refuses to seriously change his behavior and places responsibilities on somebody else for his recidivism." The court also agreed appellant's performance on probation and parole in his various cases was "abysmal." The court also observed that he "walked away from" the voluntary substance abuse treatment program he entered in 2016, which led the court to doubt appellant's resolve to undertake treatment. The court commented that his recent performance on parole was "just all not very positive in terms of showing that he is heading in the right direction." At various points during the trial court's comments, appellant's counsel argued that appellant did sincerely desire to undertake treatment. Counsel also argued that the circumstances of the current case were "basically someone who is homeless . . . found a car in a parking lot with the keys in it and drove it away to have his own shelter for the night." The trial court responded, "If that is the one time the person did it, I could understand the rationale. [Appellant] has a career of doing this, going back to 1993."
III. Analysis
Appellant argues the trial court "appeared to entirely disregard [appellant's] background, his efforts to rehabilitate himself and the circumstances of his present offense, and instead focus[ed] singularly on his past transgressions." He contends that violated the rule that a trial court must consider such circumstances in exercising its discretion whether to dismiss a prior strike conviction. (See, e.g., Carmony, supra, 33 Cal.4th at p. 377.)
Appellant's argument is contrary to the decision in Carmony, supra, 33 Cal.4th 367. There, the Supreme Court explained that, in light of the presumption that a sentence consistent with the Three Strikes law is proper, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Carmony, at p. 378.) However, an abuse of discretion will not be shown where " 'reasonable people might disagree' " or—as in this case—"[w]here the record in silent." (Ibid.)
On the final point, Carmony quoted with approval language from People v. Gillispie (1997) 60 Cal.App.4th 429, to the effect that " 'On a silent record in a post-Romero case, the presumption that a trial court ordinarily is presumed to have correctly applied the law should be applicable.' " (Gillispie, at p. 434; see also Carmony, supra, 33 Cal.4th at p. 378.) The Gillispie court went on to comment that "the trial court may ordinarily rely on the record of conviction to justify the denial of relief under section 1385. In general, '[w]here the Legislature establishes a sentencing norm and requires the court explicitly to justify a departure therefrom, and the court sentences in conformity with the legislative standard, all that is required on the appellate record is a showing that the court was aware of its discretion to select an alternative disposition.' " (Gillispie, at p. 434.)
As the People argue, People v. Myers (1999) 69 Cal.App.4th 305, is also directly on point. There, the appellant argued the trial court abused its discretion in failing to dismiss prior strikes "because the court failed to weigh the relevant sentencing factors, including his age, the nature and circumstances of his current nonviolent offense and the remoteness of his prior offenses. Appellant charges that the only factor actually considered by the court was 'violence, or the threat of violence involved in the prior strike convictions and the current offense' and that the court 'failed to realize that the timing of appellant's strikes could properly operate as a factor in mitigation.' " (Id. at pp. 308-309.) The court of appeal rejected the argument because "the fact that the court focused its explanatory comments on the violence and potential violence of appellant's crimes does not mean that it considered only that factor." (Id. at p. 310.) As in the present case, the trial court had before it the defendant's sentencing memorandum and heard argument from the defendant's counsel regarding the reasons to dismiss the prior strike conviction. (Ibid.) The court's failure to specifically refer to those reasons was not determinative, because "[t]he court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (Ibid.; accord People v. Pearson (2008) 165 Cal.App.4th 740, 749.) Similarly, in the present case we presume the trial court considered all the relevant factors described in the probation officer's report, appellant's counsel's sentencing memorandum, and appellant's counsel's argument at the sentencing hearing.
Appellant's cases are not to the contrary. The court in People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, affirmed a trial court's exercise of discretion to designate a wobbler offense a misdemeanor; the decision did not address whether a trial court must, in rendering an oral decision at sentencing, expressly balance all factors before denying a Romero motion. (Alvarez, at pp. 981-982.) The court in Williams, supra, 17 Cal.4th at page 161, articulated factors a trial court "must consider" in exercising its discretion, but the decision did not suggest that a court denying a Romero motion must expressly discuss all those factors in rendering a decision. In contrast, the court did state that a trial court granting a Romero motion "must set forth its reasons in an order entered on the minutes." (Ibid.) Finally, appellant cites a portion of People v. Garcia (1999) 20 Cal.4th 490, quoting Alvarez to the effect that " '[t]o judicially mandate that a single factor predominate the trial court's exercise of discretion . . . would eviscerate the essence of its statutory authority.' " (Garcia, at p. 501, quoting Alvarez, at p. 979.) However, upholding denial of a Romero motion where the court only referred to one factor in rendering its oral decision is not the same as holding that a trial court may ignore all other factors.
For the reasons stated, appellant has not shown the trial court erred in failing to expressly address his background or any other particular factors in denying his Romero motion at the time of sentencing. Furthermore, as summarized above, the probation officer's report fully supported the trial court's finding that appellant was not outside the spirit of the three-strike scheme in light of his record of criminality, performance on probation and parole, and failure to address his substance abuse problem. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 ["the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career"]; see also Williams, supra, 17 Cal.4th at p. 163 [trial court abused its discretion in granting Romero motion in light of the defendant's ongoing criminality and failure to "follow through in efforts to bring his substance abuse problem under control"].) The trial court did not abuse its discretion in denying appellant's Romero motion.
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------