Opinion
F040782
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JERRY DEAN ETHRIDGE, Defendant and Appellant.
Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On October 21, 1999, an amended information was filed in the Superior Court of Fresno County charging appellant Jerry Dean Ethridge with count I, transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a)(1)); count II, possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)); and count III, possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). It was alleged as to count I, that appellant was personally armed with a firearm (Pen. Code, § 12022, subd. (c)); as to count II, that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)); and as to all counts that appellant suffered one prior serious and/or violent felony conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i), § 1170.12), and served four prior prison terms (Pen. Code, § 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations.
On November 1, 1999, appellant moved to suppress evidence. On November 19, 1999, the prosecution filed opposition but the matter was taken off calendar.
On May 15, 2000, appellant pleaded guilty to count I, transportation of cocaine base, and count III, possession of a firearm by a felon. He admitted the firearm enhancement as to count I, the prior strike allegation, and the four prior prison term enhancements. The court granted the prosecutions motion to dismiss count II and the remaining allegations, and indicated it was not going to impose sentence for the strike and the enhancements. The court referred the matter to the probation department and noted appellant had been accepted into a drug-treatment program.
On October 20, 2000, appellant failed to appear for the sentencing hearing and the court issued a bench warrant for his arrest, but agreed to hold the warrant for two weeks. On November 3, 2000, appellant again failed to appear and the court ordered execution of the bench warrant. On February 12, 2001, appellant was arrested under the bench warrant.
On June 27, 2001, the court granted appellants motion to withdraw his previous pleas. On June 28, 2001, appellant was arraigned and pleaded not guilty and denied the allegations in the amended information.
On February 7, 2002, appellant again moved to suppress evidence pursuant to Penal Code section 1538.5. On February 11, 2002, the prosecution filed opposition. On March 6, 2002, the court conducted a hearing and denied appellants suppression motion.
On April 23, 2002, appellant pleaded no contest to the three felony counts alleged in the amended information and admitted both firearm enhancements, the prior strike conviction, and the four prior prison term enhancements.
On May 31, 2002, the court denied appellants motion to dismiss the prior strike conviction. The court denied probation and imposed an aggregate term of nine years: as to count I, transportation of cocaine base, the midterm of four years which was doubled to eight years as the appropriate second strike term, with a consecutive one-year term for one prior prison term enhancement. As to count III, possession of a firearm by a felon, the court imposed a concurrent midterm of four years. The court also imposed the midterm for count II, but stayed that term and both firearm enhancements pursuant to Penal Code section 654.
On June 12, 2002, appellant filed a timely notice of appeal.
FACTS
At 4:45 a.m. on April 26, 1999, California Highway Patrol Officers Steven Swanson and Jeffrey Andriese were on patrol near Motel Drive and West Avenue in Fresno when they noticed a yellow Toyota Celica with a crack through the windshield. They also noticed the passenger in the front seat was not wearing a seat belt. They initiated a traffic stop because of these violations, and the vehicle was pulled over.
The facts are taken from the suppression motion and hearing, and the probation report.
Officer Swanson contacted the driver, James Crone, and asked for his license and registration. Officer Andriese contacted the front seat passenger, appellant Jerry Ethridge. There was one passenger in the back seat. As Officer Swanson spoke with Crone, Swanson and Andriese saw appellant drop a piece of paper outside the front passenger window. Officer Swanson testified that Andriese asked appellant "to exit the vehicle and pick the piece of paper up" that he had dropped. Officer Andriese testified he asked appellant to exit the vehicle and pick up the piece of paper.
"Q And at some point, you were talking to [appellant], some piece of paper or gum wrapper or something was thrown out or fell out of the car by [appellant]; is that correct?
"[Officer Andriese] Correct. Fell from the passenger-side window onto the ground.
"Q Okay. And then you told [appellant], Hey, pick that up, right?
"A Correct."
Officer Swanson testified appellant "exited the vehicle and began to pick up the piece of paper." Appellant stepped out of the passenger door and a piece of glass fell from his body to the ground. Officer Andriese testified the object was a cylindrical piece of glass, slightly less than four inches long, with burnt tips on either side and copper Brillo inside of it. There was brown and white residue running through the glass cylinder. Officer Swanson heard the noise as the glass hit the ground and walked to the passenger side. Officer Andriese retrieved the item and gave it to Swanson, who determined it was a crack pipe.
Officer Andriese detained appellant and Officer Swanson asked Crone and the other passenger to exit the car. Swanson looked into the right front passenger seat and found a handgun which was wrapped in a transparent white plastic bag. It was later determined the handgun was an unloaded Norinco 7.62x25 semi-automatic pistol, which had been reported stolen. A piece of rock cocaine was found on the front passenger-side floorboard. Appellant was arrested and searched, and the officers found two more "rocks" of cocaine and another glass pipe in his pockets. There was no residue on the second pipe. The three rocks weighed approximately 0.3 grams.
Appellant moved to suppress the gun and narcotics, and argued he was illegally detained when Officer Andriese told him to get out of the car and pick up the paper. The trial court denied appellants suppression motion, and he subsequently pleaded no contest to possession and transportation of cocaine base and possession of a firearm by a felon, and admitted two firearm enhancements, the prior strike conviction, and the four prior prison term enhancements. He was sentenced to the second strike term of nine years in prison. On appeal, he contends his suppression motion should have been granted and the court should have granted his motion to dismiss his prior strike conviction.
DISCUSSION
I.
THE SUPPRESSION MOTION WAS PROPERLY DENIED
Appellant contends the trial court should have granted his motion to suppress evidence because he was illegally detained when Officer Andriese told him to get out of the car and pick up the piece of paper. In the alternative, he argues the officers lacked probable cause to arrest him after the glass pipe fell from his body because the officers gave conflicting testimony as to whether there was residue on that pipe.
A. Background
Appellant filed a motion to suppress the glass pipes, rock cocaine, and the gun seized by Officers Swanson and Andriese during the traffic stop. Appellant conceded the officers properly conducted the traffic stop for the cracked windshield and seatbelt infractions. Appellant further acknowledged that Officer Andriese "ordered" him to pick up the piece of paper which he threw from the car, but argued the officers engaged in "some extraordinary exploration" when they decided the glass tube, which fell from his body when he got out of the car, was a crack pipe. Appellant argued there was no evidence that the glass tube "was anything out of the ordinary" and it "could just as easily [been] used in the ordinary course of household cleaning." Appellant asserted the officers discovery of the glass tube was insufficient evidence to detain him and search the interior of the front passenger seat, where they found the gun. Appellants motion was thus limited to whether the officers observations of the glass tube provided sufficient evidence to detain him and search the car. Appellant did not challenge the validity of Officer Andrieses request to get out of the car and pick up the piece of paper.
The prosecutions opposition asserted the officers lawfully conducted the traffic stop because of the cracked windshield and the seatbelt infractions. The prosecution relied on Maryland v. Wilson (1997) 519 U.S. 408, 137 L. Ed. 2d 41, 117 S. Ct. 882, and further asserted that an officer can ask a passenger to step out of a vehicle during a traffic stop, and such a request does not constitute a detention. In addition, the officers had reasonable suspicion to detain appellant because he had littered in violation of Vehicle Code section 23112. When the glass pipe fell off appellants body, the officers had probable cause to believe the vehicle contained contraband or evidence of a crime, and they properly searched the vehicle.
At the hearing on the suppression motion, Officers Swanson and Andriese testified about the traffic stop, as set forth ante. On cross-examination, defense counsel challenged their testimony as to whether there was residue on the glass tube which fell from his body when he got out of the car, or on the pipe they later found in appellants pocket. Counsel presented the officers with photographs of the two pipes and impeached them with their testimony at the preliminary hearing. Officer Swanson conceded he was confused at the preliminary hearing testimony as to which pipe had residue, but insisted the pipe which fell from appellants body had residue and wiring in it, and constituted a crack pipe. Officer Andriese testified the glass tube which fell from appellants body had residue, burnt tips, and copper Brillo in it, and the pipe subsequently found in his pocket was clean.
Defense counsel argued Officer Swansons testimony conflicted with his preliminary hearing testimony as to the appearance of the glass tube which fell from appellants body. The court noted this evidentiary conflict was not in the record, and asked whether counsel wanted it to take judicial notice of the preliminary hearing transcript. Counsel replied, "Not exactly." Counsel noted two pipes were recovered by the officers, and one pipe had residue and the other pipe was clean. Counsel argued that if the pipe which fell from appellants body was clean, then the officers lacked probable cause to arrest him and search the car. Counsel asserted the officers now claimed they were confused about the pipes when they testified at the preliminary hearing, and "a clear reading of the preliminary hearing would shed some light on their believability." The prosecutor replied the officers were consistent as to the sequence in which they discovered the pipes. Defense counsel retorted the officers "had numerous weeks to see the defenses angle on this and see where were going with this and to fill the holes."
The court found the vehicle was properly detained based on the cracked windshield and the seatbelt infractions. The court also found Officer Andriese was "entitled legally to ask [appellant] to get out of the car to pick up the paper," which led to the observation of the glass tube when it fell from his body, the search of the car, and appellants arrest. The court further found:
"I recognize a situation like this where there has been a different statement given and some previous testimony suggests the probability of fabrication, but I dont find there is cause to believe that is the situation here. For that reason, I find that there was probable cause to arrest [appellant] and the seizure of the items that followed that was appropriate, and therefore, the motion is denied."
B. Traffic Stops
The standards for appellate review of the trial courts determination on a motion to suppress pursuant to Penal Code section 1538.5 are well settled. The trial courts factual determinations are reviewed under the deferential substantial evidence standard, with all presumptions favoring the trial courts findings. (People v. Camacho (2000) 23 Cal.4th 824, 830; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. Manderscheid (2002) 99 Cal.App.4th 355, 359-360.) The courts determination of the applicable rule of law is scrutinized under the standard of independent review. (People v. Williams (1988) 45 Cal.3d 1268, 248 Cal. Rptr. 834, 756 P.2d 221; People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56.) We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. (People v. Camacho, supra, at p. 830; People v. Duncan (1986) 42 Cal.3d 91, 97, 227 Cal. Rptr. 654, 720 P.2d 2.)
The "touchstone" of the Fourth Amendment remains "the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security." (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109, 54 L. Ed. 2d 331, 98 S. Ct. 330.) A detention is defined as a show of official authority such that "a reasonable person would have believed that he was not free to leave." (United States v. Mendenhall (1980) 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870; California v. Hodari D. (1991) 499 U.S. 621, 628-629, 113 L. Ed. 2d 690, 111 S. Ct. 1547.) To find justification for a temporary detention permitted by the Fourth Amendment, a court must weigh "the public interest served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty [citation] and ... the officers reasonable suspicion that a crime has occurred or is occurring." (In re James D. (1987) 43 Cal.3d 903, 914, 239 Cal. Rptr. 663, 741 P.2d 161.) A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts which considered in light of the totality of the circumstances, provide an objective manifestation that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231, 885 P.2d 982.)
An ordinary traffic stop is treated as an investigatory detention, i.e., a "Terry stop." (People v. Bell (1996) 43 Cal.App.4th 754, 760, see generally Terry v. Ohio (1968) 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) A traffic stop is justified at its inception if the police officer has a reasonable suspicion the driver has violated the Vehicle Code or some other law. (Whren v. United States (1996) 517 U.S. 806, 809-810, 135 L. Ed. 2d 89, 116 S. Ct. 1769; People v. Miranda (1993) 17 Cal.App.4th 917, 926.) Such a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose and perform the duties incurred by virtue of the stop. (Florida v. Royer (1983) 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S. Ct. 1319; People v. Miranda, supra, at p. 926.) Thus, an officer may ask for and examine the drivers license and vehicle registration, discuss the violation and listen to any explanation, write a citation, and obtain the drivers promise to appear. (People v. Miranda, supra , at p. 927.)
However, "circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.] There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly." (People v. Russell (2000) 81 Cal.App.4th 96, 102.) Thus, an officer can continue to detain a person during an investigatory stop when the officers suspicions are heightened by the investigation. (Id. at p. 105.) "There is no bright-line for determining when an investigatory stop crosses the line and becomes an arrest, [citation], and this determination may in some instances create difficult line-drawing problems." (U.S. v. Torres-Sanchez (9th Cir. 1996) 83 F.3d 1123, 1127.) In determining whether an arrest has occurred, all the surrounding circumstances must be considered, including the extent to which liberty of movement is curtailed and the type of force or authority employed. (Ibid.)
Once a vehicle has been lawfully detained for a traffic violation, an officer "as a matter of course" may order the driver to get out of the vehicle without violating the Fourth Amendments proscription of unreasonable seizures. (Pennsylvania v. Mimms, supra, 434 U.S. at pp. 110, 111, fn. 6.) In Maryland v. Wilson, supra, 519 U.S. 408, the Supreme Court held the bright-line rule in Mimms "that a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well." (Maryland v. Wilson, supra, at p. 410.) In arriving at this conclusion, the court balanced the public interest in officer safety against the passengers Fourth Amendment right to "personal security free from arbitrary interference by law [enforcement] officers." (Id. at pp. 411-412.) The court found the interest in officer safety outweighs the minor intrusion on passengers who are "already stopped by virtue of the stop of the vehicle." (Id. at p. 414.) "The only change in [the passengers] circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment." (Id. at p. 414.) Wilson acknowledged that "Mimms itself drew a bright line, and we believe the principles that underlay that decision apply to passengers as well." (Id. at p. 413, fn. 1.) "We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop." (Id. at p. 415.)
Appellant was not unlawfully detained when Officer Andriese asked him to step out of the car and retrieve the paper he had thrown out of the window. First, appellant concedes, as he must, that the officers lawfully conducted the traffic stop based on the vehicles cracked windshield (Veh. Code, § 26710) and the passengers failure to wear a seatbelt (Veh. Code, § 27315). Officer Andriese was thus entitled to order appellant, as the passenger, to get out of the vehicle while Officer Swanson obtained the necessary information from the driver and issued him a citation. Appellant acknowledges the holding in Wilson, but asserts Wilson only permits an officer to order a passenger out of the car when the officers safety is actually at risk, and argues such circumstances were not present in this case. While Mimms and Wilson balanced the states interest in protecting the safety of police officers against the intrusion into the occupants personal liberty by the order to get out of the car, the court established a bright-line rule and held that officers could order the driver and passenger out of the car during a traffic stop as a matter of course. (Pennsylvania v. Mimms, supra, 434 U.S. at pp. 110-111; Maryland v. Wilson, supra, 519 U.S. at pp. 412, 415; see also U.S. v. Moorefield (3rd Cir. 1997) 111 F.3d 10, 12-13; People v. Cartwright (1999) 72 Cal.App.4th 1362, 1366-1367; People v. Castellon (1999) 76 Cal.App.4th 1369, 1374; People v. Wilson (1997) 59 Cal.App.4th 1053, 1060.)
Second, appellant was independently subject to being lawfully detained and having a citation issued to him in the course of the traffic stop because he was not wearing a seatbelt. (Veh. Code, § 27315, subd. (e); People v. Hunt (1990) 225 Cal. App. 3d 498, 504-505, 275 Cal. Rptr. 367.) Indeed, Officer Swansons report, which was attached as an exhibit to appellants suppression motion, indicates appellant was charged with violating section 27315, subdivision (e) because he was not wearing his lap and shoulder harness at the time of the traffic stop.
Third, the circumstances which developed after the initial traffic stop further supported Officer Andrieses request for appellant to get out of the car. It is undisputed that appellant threw a piece of paper out of the car as the officers approached the vehicle. Appellants conduct violated Vehicle Code section 23112, subdivision (a), which provides that "no person shall throw or deposit ... upon any highway any ... paper ... (See also Pen. Code, § 374.3, subd. (a).) In addition, Vehicle Code section 23113, subdivision (a) states:
As used in Vehicle Code section 23112, a "highway" is defined as "a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street." (Veh. Code, § 360.) A "highway" has also been interpreted to include the asphalt shoulder running parallel to the roadway. (Altman v. Peirano (1952) 112 Cal. App. 2d 8, 245 P.2d 313.)
"Any person who drops, dumps, deposits, places, or throws . . . upon any highway or street any material described in [Vehicle Code] Section 23112 ... shall immediately remove the material or cause the material to be removed." (Italics added.)
Officer Andriese was thus statutorily authorized to direct appellant to immediately remove from the road the paper which he threw out the cars window. We thus conclude appellant was not illegally detained when Officer Andriese asked him to pick up the piece of paper he threw from the window to the roadway.
Finally, appellant contends the officers lacked probable cause to detain and arrest appellant, and search the vehicle, because the pipe which fell to the ground was clean and lacked any residue. Appellant asserts he impeached Officers Swanson and Andriese with their preliminary hearing testimony as to which pipe fell from his body when he stepped from the car. Appellant argues the officers testimony at the suppression hearing was "plainly not credible" and the trial courts factual findings are not entitled to deference.
As the finder of fact in a proceeding to suppress evidence (Pen. Code, § 1538.5), the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal. Rptr. 13, 507 P.2d 621.) Accordingly, in reviewing the instant suppression order, "all factual conflicts must be resolved in the manner most favorable to the [superior] courts disposition on the [suppression] motion." (People v. Martin (1973) 9 Cal.3d 687, 692, 108 Cal. Rptr. 809, 511 P.2d 1161.) We defer to the superior courts express and implied factual findings if they are supported by substantial evidence, but we exercise our independent judgment in determining the legality of a search on the facts so found. (People v. Woods (1999) 21 Cal.4th 668, 673-674, 981 P.2d 1019.)
As set forth ante, Officers Swanson and Andriese testified the pipe which fell from appellants body onto the street was burnt at the ends, and had residue and copper wire in it, whereas the pipe which they subsequently found in his pocket was clean. Defense counsel extensively cross-examined the officers about the pipes and introduced photographs of the two items. Officer Swanson admitted he might have been confused at the preliminary hearing but insisted the pipe which they recovered from the ground had residue in it. Officer Andriese, who saw the pipe fall from appellants body, testified he picked up the item from the ground and it had burnt ends and residue in it. The trial court specifically considered and rejected appellants assertion that the officers testified falsely about the pipes and found them credible, and the courts findings are supported by substantial evidence. We thus conclude the trial court properly denied appellants suppression motion.
II.
DENIAL OF PENAL CODE SECTION 1385 MOTION
Appellant argues the trial court abused its discretion when it denied his request to dismiss the prior strike conviction pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628, because the instant offenses were relatively minor, and his criminal history was not violent or significant.
A. Background
As set forth in the statement of the case, ante, appellant initially filed a suppression motion but the matter was taken off calendar. On May 15, 2000, appellant pleaded guilty to count I, transportation of cocaine base, and count III, possession of a firearm by a felon. He admitted the firearm enhancement as to count I, the prior strike allegation, and the four prior prison term enhancements. The court granted the prosecutions motion to dismiss count II and the remaining allegations, and indicated it was not going to impose sentence for the strike and the enhancements. The court noted appellant had been accepted into a drug-treatment program and he was waiting for a bed. The court agreed to release appellant to a representative from the program once the court received confirmation that there was space for him.
On June 13, 2000, defense counsel advised the court that appellant was doing well in the drug-treatment program, and appellant waived time for sentencing. The court ordered appellant to immediately report to the probation department, and scheduled the sentencing hearing for July 21, 2000. On July 21, 2000, the sentencing hearing was scheduled and defense counsel stated appellant continued to do well in the program, and was scheduled to be placed in the after-care program and attend college. The court agreed to delay the sentencing hearing until October 2000.
On October 20, 2000, appellant failed to appear for the sentencing hearing and the court issued a bench warrant for his arrest, but agreed to hold the warrant for two weeks. On November 3, 2000, appellant again failed to appear and the court ordered execution of the bench warrant. On February 12, 2001, appellant was arrested under the bench warrant.
On March 5, 2001, the court held a status hearing and defense counsel stated appellant reported that he did well in the program until the final two days, when he relapsed and left, and he continued using drugs after his mother died but he wanted another chance. On June 27, 2001, the court granted appellants motion to withdraw his previous pleas. On June 28, 2001, appellant was arraigned and pleaded not guilty and denied the allegations in the amended information. As discussed ante, appellant again moved to suppress evidence but the motion was denied.
On April 23, 2002, appellant pleaded no contest to the three felony counts alleged in the amended information and admitted both firearm enhancements, the prior strike conviction, and the four prior prison term enhancements, and the court ordered an updated probation report.
According to the probation report, appellant (born 1955) began using cocaine in 1973, and developed a daily habit by the mid-1980s. He continued to smoke cocaine every time he was released from custody. Appellant had a lengthy record of juvenile dispositions and adult convictions. In 1969, 1970, and 1971, he suffered five separate juvenile dispositions for auto theft, and escaped from a boys camp. In 1974, 1976, and 1977, he suffered multiple adult convictions for taking or driving a vehicle (Veh. Code, § 10851), receiving stolen property (Pen. Code, § 496), and petty theft (Pen. Code, § 484), and was placed on probation. He violated probation and was committed to state prison in 1977 for another auto theft conviction. He was released on parole but repeatedly violated.
In 1989, appellant was convicted of first degree robbery (Pen. Code, §§ 211, 212.5) and was sentenced to three years in prison. He was paroled in 1991. In 1992, he was convicted of misdemeanor trespass and received local time. He committed parole violations from 1992 to 1996, and was repeatedly returned to custody.
The probation officer interviewed appellant about leaving the drug-treatment program and failing to appear at the October 20 and November 3, 2000, sentencing hearings. Appellant stated he only had 12 days left to complete the program when he had a relapse and started to use cocaine, and his mother died on November 19, 2000. Appellant stated he failed to appear based on his relapse and his mothers death. Appellant stated he used cocaine and worked for a construction company before he was arrested on the bench warrant.
The probation officer contacted the drug-treatment program and determined appellant entered the program on May 24, 2000, and self-discharged on July 31, 2000. The probation officer determined appellant relapsed, left the program, and failed to appear before his mother died. The probation officer recommended a prison sentence because appellant had a lengthy record, failed to complete the drug-treatment program, and failed to appear for the sentencing hearing.
On May 31, 2002, the court conducted the sentencing hearing and reviewed the probation report. Appellant requested the court to dismiss his prior strike conviction for robbery because it occurred in 1989 and was pretty old. Appellant admitted a gun was found in the car but there was no evidence of his fingerprints on it, and the gun wasnt loaded. Appellant had a lifetime drug problem but he was a nonviolent person, and he wanted to enter a drug program and become a responsible citizen because he was getting older. The prosecutor objected and noted appellants lengthy criminal record, numerous parole violations, and failure to complete the drug-treatment program.
The court denied appellants request to dismiss the prior strike conviction:
"The Court, number one, takes into consideration the age of the strike, which although not of great currency is within an area that I think the Court can take into consideration and consideration of the other matters which I11 talk about in a moment. It was [a Penal Code section] 211, a crime of violence. Understanding the circumstances of the gun in this case, that was one of the elements to which he pled, it is clear for whatever reasons . . . that [appellant] has not led a crime free life by any stretch of the imagination for whatever reason as I think those terms are generally used by the Court. He has not led a crime free life. In addition, he has multiple prison priors."
The court found that "all of those things, the crime that constituted the strike, the lack of a crime free intervening period of time, lack of any reconstruction of [appellants] own life, and the pleas which were entered in this case all lead the Court to that determination that the invitation to strike will not be favorably acted upon." The court denied probation and imposed an aggregate second strike term of nine years.
B. Analysis
Appellant contends the court abused its discretion when it denied his motion to dismiss his prior strike conviction. The review of a trial courts decision whether or not to dismiss a prior strike under Penal Code section 1385, like most other discretionary trial court rulings, is limited in scope. (People v. Gillispie (1997) 60 Cal.App.4th 429, 434; see also People v. Benevides (1998) 64 Cal.App.4th 728, 735.) This is true in part because appellate courts must give great deference to discretionary trial court rulings and will disturb them only upon a clear showing of abuse which results in a manifest miscarriage of justice. (See People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal. Rptr. 197, 721 P.2d 79.)
Here, the record establishes the trial court acted to achieve legitimate sentencing objectives, after a thoughtful and conscientious assessment of all relevant factors. (See People v. Williams (1998) 17 Cal.4th 148, 161-164, 948 P.2d 429; see also People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) Appellant has not shown the trial court acted improperly in refusing to dismiss his prior convictions. (People v. Barrera (1999) 70 Cal.App.4th 541, 553-555; People v. Cline (1998) 60 Cal.App.4th 1327, 1336-1337.)
DISPOSITION
The judgment is affirmed.