Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA 325151, Arthur Jean, Jr., Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Terry Evans, appellant, was charged with one count of possession of illegal substances in a jail facility, in violation of Penal Code section 4573.6, a felony. It was further alleged that Evans suffered a prior conviction of a serious or violent felony, pursuant to sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). It was also alleged that pursuant to section 667.5, subdivision (b), Evans served a prior prison term and committed an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of said term.
All further statutory references are to the Penal Code.
The jury found Evans guilty of count one and the court found the prior conviction allegations to be true. Evans made a knowing, intelligent and voluntary waiver of his right to a trial by jury on the issue of his prior conviction. The court sentenced Evans to state prison for seven years by issuing the midterm sentence of three years for the violation of section 4573.6, which was doubled because of the prior strike allegation, and added an additional year pursuant to section 667.5, subdivision (b). Evans was awarded 278 days of presentence credit and was ordered to pay a security fee of $20. The court stayed the imposition of a $200 parole revocation restitution fine.
Evans filed a timely notice of appeal.
FACTS
1. Prosecution Evidence
On March 30, 2007, Deputy Alfred Lio of the Los Angeles County Sheriff’s Department was on duty at the Inmate Reception Center, the area where inmates are searched and classified. At its entrance were signs stating that it is a felony to bring contraband into the facility.
As Deputy Lio searched Evans, he ordered Evans to remove his left sock, upon which a yellow translucent bag containing a usable amount (0.78 grams) of marijuana slipped out. After Deputy Lio contacted Deputy Marlon Watkins and informed him of the search results, Deputy Watkins took possession of the bag, advised Evans of his Miranda rights and began questioning him. Evans appeared to have slurred speech and told the deputies he was under the influence of alcohol and marijuana. Deputy Watkins testified that during the interview, Evans admitted that he used narcotics, that he used narcotics prior to coming into the facility, he knew it was against the law to bring narcotics into the facility, and he ate narcotics, specifically marijuana, while in the facility. Evans provided logical answers to Deputy Watkins’s questions.
Miranda v. Arizona (1996) 384 U.S. 436.
2. Defense Evidence
Evans testified that he was arrested on March 29, 2007, and taken directly to the Los Angeles County Jail without being searched. He stated he was under the influence of alcohol and marijuana when he was arrested and did not know he had marijuana in his possession when he was taken to the county jail. Evans testified that he realized he had marijuana in his possession when he was putting on his uniform, and he was searched after he had put his uniform on and spoken to the nurse. Evans ate some of the marijuana and placed the remainder in his sock. Evans knew it was illegal to bring drugs into the jail, but did not see the signs indicating it was a felony to do so.
CONTENTIONS
Appellant argues that the trial court abused its discretion by refusing to strike his prior strike conviction. Defense counsel had argued that the charge was not a violent crime, and if appellant had possessed the drugs outside of the jail, the offense would have been an infraction. Counsel therefore asked for a drug program or low term as the sentence, which the court declined, finding that it was a prison case. Appellant contends that the trial court unreasonably denied his Romero motion to strike his prior strike conviction and the denial constituted an abuse of discretion. Appellant further argues that he does not fall within the spirit of the “Three Strikes” law and that the trial court was presented with sufficient facts to give favorable consideration to his Romero motion. Therefore, appellant maintains that seven years state prison for possession of 0.78 grams of marijuana is excessive and the denial of his Romero motion should be reversed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Respondent contends that appellant never made a Romero motion, oral or otherwise, and has therefore forfeited his right to raise this issue on appeal. Specifically, respondent points to the following exchange between the court and defense counsel:
“[Defense Counsel]: Mr. Evans has informed me he would like to have sentencing done now.
“The Court: Okay. Thank you. [¶] What are your thoughts?
“[Defense Counsel]: Your Honor, because of the charge in this case, it is not a violent crime, if the drugs would have been outside it would have been an infraction. So I would ask if the court -- is the court inclined -- first, I would ask for a drug program. If the court was not inclined to give a drug program, low term.
“The Court: I am not inclined to give a drug program. This is a prison case. It is a non-probation case. [¶] Your thoughts, [Deputy District Attorney], if any?”
Respondent contends that this exchange does not constitute an oral Romero motion; rather, defense counsel limited his argument to one of leniency in sentencing based on the facts of the instant offense. Respondent further asserts that defense counsel never made any reference to the prior conviction alleged (which the court found to be true), let alone make any request to strike the prior conviction. As such, appellant cannot now argue on appeal that the trial court abused its discretion by refusing to strike the prior conviction; the trial court did not refuse to strike the prior conviction because it was never asked to do so.
STANDARD OF REVIEW
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004)33 Cal.4th 367, 374 (Carmony).) “[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.)
DISCUSSION
Because appellant did not invite the court to dismiss pursuant to Romero, he has forfeited his right to raise the issue on appeal.
“[A]ny failure on the part of a defendant to invite the court to dismiss under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal.” (Carmony, supra, 33 Cal.4th at pp. 375-376, citing People v. Scott (1994) 9 Cal.4th 331, 352-353.) Appellant contends that the trial court denied his oral Romero motion to strike the prior strike and impose the low term only. Appellant further argues that defense counsel orally moved the trial court to strike appellant’s prior strike conviction, and the trial court and prosecutor understood defense counsel was requesting that the trial court strike the prior strike conviction. However, there is no indication of this in the record. Respondent correctly argues that the dialogue quoted above between defense counsel and the court is not an oral invitation to the court to dismiss under section 1385, but rather an argument by defense counsel for leniency in sentencing.
Although a trial court is permitted to act on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law (Romero, supra, 13 Cal.4th at pp. 529-530), it has no sua sponte duty to consider striking a prior conviction, and a defendant has no right to make a motion to strike a prior conviction. (Carmony, supra, 33 Cal.4th at p. 375.) Whereas the court in Romero acted on its own motion to strike the defendant’s prior convictions on the condition that he plead guilty as charged on all counts, the trial court here neither acted on its own motion, as it had no sua sponte duty to do so, nor was it invited to “dismiss under section 1385 following Romero . . . .” (Carmony, supra, 33 Cal.4th at p. 376.) Although a “defendant should have the concomitant power to appeal a court’s decision not to dismiss a prior under section 1385 . . .,” the trial court here never made a decision to dismiss or not to dismiss, as the issue was never presented to the court. (Id. at p. 376.) The only action appellant took toward his prior strike was to waive his right to jury on the issue and to request leniency in sentencing. Therefore, appellant has forfeited his right to raise a Romero issue on appeal.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., BIGELOW, J.