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People v. Ellis

California Court of Appeals, Fourth District, First Division
Jul 24, 2008
No. D052253 (Cal. Ct. App. Jul. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MELVIN LEE ELLIS, Defendant and Appellant. D052253 California Court of Appeal, Fourth District, First Division July 24, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD209051, David Danielsen, Judge.

IRION, J.

Melvin Lee Ellis pleaded guilty to failure to register as a sex offender (former Pen. Code, § 290, subd. (g)(2), now § 290.018, subd. (b)) and admitted he had a prior serious/violent felony or strike conviction (§ 667, subds. (b)-(i)). At sentencing, the trial court denied Ellis's Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to dismiss the strike allegation, and sentenced Ellis to 32 months in prison. The court selected the low term of 16 months for the failure to register count and doubled it under the Three Strikes law.

Statutory references are to the Penal Code.

FACTS

In 1981, Ellis was convicted of oral copulation of a child under 14 years of age. (§ 288a, subd. (c).) As a result of that conviction, Ellis had a lifetime obligation to register as a sex offender. (§ 290, subd. (b).)

On September 13, 2007, San Diego police officers stopped a vehicle in which Ellis was a passenger. The officers learned that Ellis was a section 290 registrant and had an active warrant out of Oklahoma. Initially, Ellis told the officers that he had moved back from Oklahoma on August 31 and he did not re-register immediately because he planned to return to Oklahoma. Subsequently, Ellis told the officers that he took a flight to San Diego from Oklahoma on August 30 for a job interview, returned to Oklahoma the next day and drove back to San Diego, arriving by vehicle on September 6. Ellis's representations were not true; Ellis had been living in California for more than one year without registering as a sex offender.

In an interview with a probation officer, Ellis said he had returned to San Diego from Oklahoma in August 2006. Ellis further said he did not register because he did not plan to stay but to return to Oklahoma. After a month had passed and he had not returned to Oklahoma, Ellis did not know how to remedy the registration situation without getting in trouble. Ellis also said he did not want to register because he was tired of being "harassed." Ellis had had trouble securing employment because of his sex offender status.

Police arrested Ellis for failing to register within five days of moving. (§ 290, subd. (b).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible, but not arguable, issue: whether the trial court abused its discretion by denying Ellis's motion to dismiss his prior strike allegation.

We granted Ellis permission to file a brief on his own behalf. He has responded and raises two contentions, neither of which has merit.

First, Ellis contends the trial court should have dismissed his prior strike allegation because that crime took place 26 years earlier than the current offense and he has been a productive member of the community for the last decade. As a subsidiary issue, Ellis also claims the Three Strikes law should not apply to him because when he was committed to Patton State Hospital as a mentally disordered sex offender as a result of the 1981 offense the Three Strikes law had not been enacted.

A trial court may exercise its discretion to strike a prior conviction in the furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.)

"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, the court . . . must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony conviction, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] 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.)

" 'The striking of a prior serious felony conviction is not a routine matter. It is an extraordinary exercise of discretion, and is very much like setting aside a judgment of conviction after trial.' " (People v. McGlothin (1998) 67 Cal.App.4th 468, 474.) It is a conclusion "that an exception to the [sentencing] 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." (Ibid.)

The court acted within its discretion in balancing the various factors and concluding that Ellis was not outside the spirit of the Three Strikes law. We begin by noting that Ellis had made commendable strides towards becoming a productive member of society. However, the 1981 crime of orally copulating a four-year-old girl whom Ellis had been babysitting was a reprehensible offense. Although the prior strike was 26 years old, Ellis was in Patton State Hospital as a mentally disordered sex offender from 1981 to 1997, and, therefore, his noncriminal lifestyle was for 10 years, not 26 years. We also note that while the instant offense was not a violent or serious offense, it was not a mere technical violation of the registration requirement. Ellis intentionally did not register as required because he was tired of registering and the adverse consequences of registering. Given all these factors, we cannot say the court's denial of the Romero motion was irrational or arbitrary. There was no abuse of discretion.

Ellis is also mistaken in claiming the Three Strikes law does not apply to him. Recidivist laws, such as the Three Strikes law, have routinely applied to persons with specified prior offenses predating the recidivist law's effective date, who commit a new crime after the recidivist law takes effect. (Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1309.) "[T]he constitutionality of 'retroactive' application is well-settled. 'In the context of habitual criminal statutes, "increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.' " [Citation.]" (Ibid.)

Ellis also contends the prosecutor committed misconduct by including information regarding an active arrest warrant issued for him by law enforcement in Oklahoma. However, the record indicates that after the court asked for more details about the Oklahoma warrant, the prosecutor included the information in its sentencing memorandum. In any event, the court stated that it did not consider any of the events in Oklahoma in making its decision to deny the Romero motion. Ellis has not shown any prejudice.

A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Ellis on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, Acting P. J., NARES, J.


Summaries of

People v. Ellis

California Court of Appeals, Fourth District, First Division
Jul 24, 2008
No. D052253 (Cal. Ct. App. Jul. 24, 2008)
Case details for

People v. Ellis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MELVIN LEE ELLIS, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 24, 2008

Citations

No. D052253 (Cal. Ct. App. Jul. 24, 2008)