Opinion
G052519
04-04-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANK WILLIAM EVANS, Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette Cavalier and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF2742) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard Y. Lee, Judge. Affirmed. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette Cavalier and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Frank William Evans of possession for sale of methamphetamine (Health & Saf. Code, § 11378; count 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2). Defendant pleaded guilty to misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a); count 6) and driving without registration, an infraction (Veh. Code, § 4000, subd. (a)(1); count 7). Defendant admitted the allegations he had suffered three prior convictions for robbery (Pen. Code § 213.5 [code was repealed in 1986; see Stats. 1986, ch. 1428, § 5]) in August 1985. Additionally, the court found true allegations defendant had suffered a prior conviction for burglary (§§ 459-460, subd. (b)) in June 1977. These prior convictions qualified as strike offenses.
Counts 3, 4, and 5 were dismissed.
All further statutory references are to the Penal Code unless otherwise stated.
Before sentencing, defendant filed a motion to dismiss the strikes pursuant to section 1385, subdivision (a), and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court denied the motion and sentenced defendant to four years in state prison.
On appeal defendant contends the court abused its discretion in denying his Romero motion. We disagree and affirm.
FACTS
Defendant, now age 58, admittedly began using methamphetamine at age 15 or 16, and he has been using drugs off and on since then. In August 2014, defendant was living in Tustin and working as a home remodeler installing drywall in a cabin in Big Bear. He forgot some tools, so he returned to Tustin, retrieved the tools from the garage and about $50 in cash so he could pay for gas, grabbed the last of his "dope," and headed out to return to the job in Big Bear.
Orange County Deputy Sheriff Kyle Sheek was on duty in Tustin when he spotted a white Ford Explorer with expired tags. He pulled the vehicle over and made contact with defendant, the driver. Defendant did not have his driver's license with him. When Sheek ran a DMV check, he learned defendant's license had been suspended. Sheek asked defendant to step out of the vehicle.
Sheek searched defendant and found a glass pipe in his pants pocket. Based on Sheek's training and experience, he believed the pipe to be the type used for smoking methamphetamine. There was a tan residue on the inside portion of the bowl of the pipe. When asked, defendant admitted there was methamphetamine in the pipe. Sheek searched the inside of the vehicle and found two more methamphetamine pipes and two hypodermic needles in the center console. Both pipes contained the same tan residue and black burn marks around the outside. One pipe appeared to have a ready-to-use packed bowl. The hypodermic needles appeared to have been used because there was liquid underneath the plunger. Sheek then searched the rear passenger seat area and found a metal box about the size of a clipboard. Inside he found a quart-size clear plastic baggie containing a crystalline substance. He suspected the substance was methamphetamine; a narcotics test confirmed his suspicion. The total weight was 1.37 grams. Finally, Sheek found an electronic digital scale with crystalline flakes on the measuring plate, 37 clear plastic baggies, $50 in cash, and another hypodermic needle. Based on his training and experience, Sheek opined the methamphetamine found in the larger bag was possessed for sale.
Joseph Klein, a retired police lieutenant, testified for the defense and opined the drugs could have been used for personal use or sales. Defendant testified he did not intend to sell the drugs found in the metal box. He said the drugs were for personal use.
The jury found defendant guilty on counts 1 and 2. Defendant pleaded guilty to counts 6 and 7. Defendant admitted the truth of three strike priors for robbery in August 1985. For these robbery convictions, even though the police records had been purged, defendant admitted he was the driver during an incident in which his friends entered a house to rob the residents. The court found true the allegation defendant had suffered a strike prior for burglary in June 1977. For this conviction, the probation and sentencing report stated police records had been purged, so there was no information about the case. Defendant acknowledged the incident.
The probation and sentencing report (the report) stated defendant and his mother were physically abused by his father who suffered from alcohol and gambling addictions. The report noted despite defendant's long history of drug use, he had never participated in any rehabilitative program. However, defendant stated he had been accepted into a rehabilitation program in San Clemente but could not remember its name. Defendant said he was diagnosed with bipolar disorder in 1990 but it was never treated and he had no written medical documentation to confirm his diagnosis. As an adult, defendant has a record of 16 felony convictions and 15 misdemeanor convictions for crimes including robbery, false imprisonment, burglary, possession of a controlled substance, and petty theft with a prior. These occurred in 1977, 1978, 1980, 1981, 1985, 1987, 1993, 1994, 1995, 1998, 2000, 2001, 2002, 2007, 2009, and 2014. The report noted the current offenses were not considered violent or particularly brazen but showed a pattern of continued criminal behavior with no regard for the law. Defendant served prior prison terms in 1985, 1994, 2002, 2007, and 2009. Finally, defendant's prior performance on parole was unsatisfactory and resulted in two violations and an eventual return to state prison.
Defendant filed a sentencing brief and invited the court to strike his prior strike offenses under section 1385 and Romero. He suggested his sentence should be the lower mitigated term of two years in state prison, striking the strikes under section 1385, subdivision (c) for sentencing purposes. The People filed a response, suggesting a six-year sentence, consisting of a doubled midterm on count 2. The court denied the Romero motion.
Defendant's conviction of sale or transportation of a controlled substance in violation of Health & Safety Code section 11379, subdivision (a) carries a sentence of two, three, or four years in state prison. (Ibid.)
Turning to sentencing, the court found defendant statutorily ineligible for probation. On count 2, the court sentenced defendant to state prison for a term of four years (double the low term of two years) pursuant to sections 667, subdivision (e)(2)(C) and 1170.12, subdivisions (c)(2)(C) and (e)(1). The court stayed prison sentence on count 1 pursuant to section 654, suspended sentence on count 7, and ordered defendant to pay a fine on count 6. Defendant timely appealed.
See sections 667, subdivision (c)(2) and 1203, subdivision (e)(4).
DISCUSSION
The Court's Authority to Strike the Strikes
Defendant challenges his four-year sentence. He contends the trial court abused its discretion when it denied his Romero motion. He urges us to reverse the court's denial of his Romero motion, order the strikes stricken, and remand for resentencing. Defendant, as the party challenging the sentence, bears the burden of clearly showing the trial court's decision was arbitrary or irrational. (See People v. Carmony (2004) 33 Cal.4th 367, 376.)
Section 1385, subdivision (a) states a trial 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." The California Supreme Court has determined "pursuant to Penal Code section 1385[, subdivision] (a), a trial court may strike an allegation or vacate a finding under the so-called 'Three Strikes' law [citations] that a defendant has previously been convicted of a 'serious' and/or 'violent' felony as defined therein." (People v. Williams (1998) 17 Cal.4th 148, 151-152, fn. omitted (Williams).) In deciding whether to exercise its discretion to do so, a 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." (Id. at p. 161.)
We do not have the power to substitute our discretion for that of the trial court. We can, however, review a court's sentencing discretion for abuse, including its failure to dismiss a strike. (People v. Carmony, supra, 33 Cal.4th at p. 376.) We review the court's decision under an abuse of discretion standard and will reverse only if the court's decision "'falls outside the bounds of reason.'" (Williams, supra, 17 Cal.4th at p. 162.) A decision will not be reversed merely because reasonable people might disagree. (People v. Bishop (1997) 56 Cal.App.4th 1245, 1249-1250 (Bishop).)
The Court Did Not Abuse Its Discretion
Because the court's exercise of discretion is central to this case, we set out its reasoning in detail. At the sentencing hearing, the court stated, "I thought a lot about the Romero issue. I've looked into the issue quite a bit with the case law. I thought that the striking of a prior serious felony conviction is not a routine matter. It's an extraordinary matter of discretion, almost like setting aside a conviction of judgment after trial. I'm referring to the [People v. McGlothin (1998) 67 Cal.App.4th 468 case]. [¶] I'm aware of my authority and discretion to strike the strikes as requested, and I have evaluated the case in light of the nature and circumstances of his present felonies and the prior serious and/or violent felony convictions, the particulars of his background, character, and prospects and in determining — I have done all that to determine whether Mr. Evans may be deemed outside the spirit of the Three Strikes law, either in whole or in part; and the spirit of the law is to include longer sentences for career criminals who commit at least one serious or violent felony, and that is well iterated both in the cases and in the authority that I've reviewed."
"I've considered his constitutional rights, the interests of society represented by the People. Looking at the prior strikes, one is from 1977 for second degree burglary, and I recognize that that is a significant length of time between the commission of that crime and this current crime, and that is a factor I can consider. The fact that that strike occurred almost 40 years ago is a mitigating factor in favor of the defense request. [¶] Defendant was also convicted of three other strikes in 1985 for robbery, and, again, those strikes occurred almost 30 years ago, so that is a mitigating factor. However, I have also looked at his conduct between the commission of the crime and the current crime which I'll address in a few moments. The prior offenses did not appear to involve violence or the use of a weapon, but they did occur at 12 distinct times, so it wasn't just one abhorrent period of his life."
"They were about eight years apart, but more to the point than that, his past criminal record is very extensive and consistent, and it is proper for this court to consider his criminal record in determining whether to dismiss the prior strike. He's accumulated approximately 16 felony convictions and 15 misdemeanor convictions, and while I fully agree with the defense that he's not suffered any new strike offenses since 1985, he has not had a crime-free existence since 1985. [¶] He served a significant amount of time in state prison including three years in 2009. The probation office does a very good job of detailing his criminal history . . . . I acknowledge that the defendant has a drug problem and that many of his convictions are drug-related."
"However, while drug addiction may be a mitigating factor, the failure of the defendant to do anything about the problem is an aggravating factor. The case I'm relying on, the [People v. Gaston (1999) 74 Cal.App.4th 310 case.] Here the jury found the defendant guilty of selling and transporting for sale methamphetamine, and while the offenses . . . were not — those offenses were not violent and the quantity recovered was not large, the criminal conduct suggested he falls squarely within the Three Strikes law. [¶] It appears his criminal conduct is similar to many of his prior convictions, even though the instant commission is for sales which is an aggravated step up. The repetition of criminal activity suggests the defendant has not learned from his prior experiences within the justice system, and that's articulated in Williams [supra, 17 Cal.4th 148] which I think is one of the seminal cases in the area."
"I do agree he cooperated with police, but in considering his whole background, character, and prospects, I don't find that there is anything in his background, character or prospects that weigh in mitigation here or in favor of striking the strikes. The primary thrust of the defense argument is the strikes are very old and the instant crime is relatively de minimus conduct, but in considering the totality of the factors and after weighing all of that including all of the Rules of Court factors which I will address, the court declines to exercise its discretion and strike the prior strike offenses."
1. Nature and Circumstances of Present and Past Felony Convictions
Defendant contends the circumstances of the current offense fall outside the spirit of the Three Strikes law, because he possessed only a small amount of contraband and was convicted of a less serious felony. Defendant contends his strikes, one for burglary in 1977 and three from the same robbery in 1985, are approximately 30 to 40 years old and none of his offenses committed after 1985 were for violent or serious crimes as described by section 1192.7. For reasons not clear to us, defendant relies on Williams, supra, 17 Cal.4th 148, and Bishop, supra, 56 Cal.App.4th 1245. Neither case assists his argument.
In Williams, the defendant was convicted of felony driving under the influence. (Williams, supra, 17 Cal.4th at p. 162.) The trial court vacated one of the defendant's two priors "'in furtherance of justice.'" (Id. at p. 156.) The Court of Appeal reversed (id. at p. 157), and the Supreme Court affirmed the Court of Appeal to the extent it set aside the trial court's order vacating the finding under the Three Strikes law. (Id. at p. 165.) In reaching its conclusion that the trial court abused its discretion in striking the defendant's prior strikes, the Supreme Court noted the defendant's conviction of driving under the influence followed three other convictions of driving under the influence and he had failed or refused to learn his lesson. (Id. at p. 163.) Further, the defendant "was unemployed and did not follow through in efforts to bring his substance abuse problem under control." (Ibid.) There was a span of 13 years between his prior serious and/or violent felony convictions and his present felony, but he did not refrain from criminal activity during that span and did not add maturity to age. (Ibid.) Instead, he was often in prison or jail, and when he was not, he violated parole and probation and committed numerous other offenses. (Ibid.) Not more than three months before he committed his present felony, he committed misdemeanor spousal battery. (Id. at p. 164.) The Supreme Court concluded, "In view of the foregoing, the superior court's order fell outside the bounds of reason under the applicable law and relevant facts." (Ibid.)
Williams does not help defendant. Here, as in Williams, defendant has an untreated addiction problem which contributed to many, if not all, of his criminal convictions. He admits to using drugs beginning at age 15 or 16, and his criminal history confirms his account. He has a record of 16 felony convictions and 15 misdemeanor convictions for crimes including robbery, false imprisonment, burglary, possession of a controlled substance, and petty theft with a prior occurring in 1977, 1978, 1980, 1981, 1985, 1987, 1993, 1994, 1995, 1998, 2000, 2001, 2002, 2007, 2009, and 2014. Defendant served prior prison terms in 1985, 1994, 2002, 2007, and 2009. His prior performance on parole was unsatisfactory and resulted in two violations and an eventual return to state prison. Defendant's case is thus weaker than Williams where the Supreme Court reversed the trial court's grant of defendant's Romero motion.
In Bishop, the defendant was convicted of petty theft after stealing six videocassettes from a drug store. (Bishop, supra, 56 Cal.App.4th at p. 1248.) The trial court struck two of the defendant's prior strikes in furtherance of justice because they were remote (17 to 20 years old) and his current crime was nonviolent. (Ibid.) The Court of Appeal affirmed placing great weight on the trial court's discretionary power. "While the People and perhaps even this court may be of the opinion that Bishop appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude. Rather, what counts is what the trial court in this case concluded, as expressed by the reasons it stated under section 1385, subdivision (a). On this record, we cannot say that the trial court's decision to dismiss two of Bishop's strikes in furtherance of justice constituted an abuse of discretion." (Id. at p. 1251.)
The instant case comes to us in an identical procedural posture as Bishop. Even if we were to agree with defendant that he is entitled to leniency, we cannot disregard the trial court's exercise of discretion. Had the trial court been persuaded by Bishop and granted defendant's request to strike his prior strikes for sentencing purposes, we would view the case in a different light. Here, defendant faces an enormous burden to establish the court abused its discretion. He has not demonstrated the court's decision "'falls outside the bounds of reason'" (Williams, supra, 17 Cal.4th at p. 162), and therefore Bishop does not control the outcome on appeal.
The Three Strikes law was enacted to curb the kind of criminal behavior defendant has displayed over the entirety of his adult life. (See § 667, subd. (b) [intent of Legislature to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious and/or violent felonies]; People v. Davis (1997) 15 Cal.4th 1096, 1099 [unambiguous purpose of Three Strikes law to provide greater punishment for recidivists].) Its spirit is not offended by the sentence the court imposed.
2. Defendant's Background, Character, and Prospects
Defendant asserts his background, character, and prospects warrant an exercise of favorable discretion. He faults the court for not taking into account personal circumstances including that defendant had recently had cancer removed from his face and had been diagnosed with hepatitis C. He also argues the court did not mention defendant had been physically abused as a child or that he had been diagnosed with bipolar disorder. He complains the court did not mention his age or that he worked as a home remodeler and had good prospects for supporting himself when released from custody. Finally, he complains the court did not mention he had been accepted into a rehabilitation program in San Clemente.
However, the court heard the evidence and testimony and read the report that together contained all the facts defendant contends the court ignored. While the court's analysis focused on the nature and circumstances of defendant's convictions past and present, the court also stated, "I do agree [defendant] cooperated with police, but in considering his whole background, character, and prospects, I don't find that there is anything in his background, character or prospects that weigh in mitigation here or in favor of striking the strikes." There is nothing to suggest the court ignored or failed to consider defendant's background, character and prospects. As the court pointed out, "the primary thrust of the defense argument is the strikes are very old and the instant crime is relatively de minimus conduct." The court therefore focused its comments on the primary argument advanced by defendant at sentencing. The court's sparse explanation for its findings on this subject does not require reversal, because we cannot reweigh the evidence and substitute our judgment for that of the trial court. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 272 [when two or more inferences reasonably deduced from facts, reviewing court has no authority to substitute its decision for that of trial court]; In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138 [showing on appeal is wholly insufficient if it presents state of facts which merely affords opportunity for a different opinion].)
Similarly, defendant faults the court for misunderstanding the nature of addictions. While we agree the extent to which a repeat offender's crimes are related to drug addiction is a criterion that favors striking the strike prior (People v Garcia (1999) 20 Cal.4th 490, 503), we disagree the record supports the court's lack of appreciation for defendant's addiction. The court stated, "I acknowledge that the defendant has a drug problem and that many of his convictions are drug-related." Defendant points out he is an addict, addiction is a disease, and an addict cannot stop using drugs without structured treatment. But defendant's present acquiescence to treatment does not negate his lifelong rejection of that option. Further, his current conviction for drug sales is a step up from previous convictions. Now age 58, he has been using drugs for 43 years. He could have sought treatment before his crimes escalated, but he chose instead to live a life addicted to drugs. (See People v. Gaston, supra, 74 Cal.App.4th at p. 322 [although drug use appears to be an underlying factor in the defendant's criminal behavior, and may be root cause, record is barren of any attempts to "root out" such destructive drug dependency; therefore it is not a mitigating circumstance].)
Finally, defendant argues the court's refusal to strike the prior strikes did not serve the interests of society as defined by section 1170.18, which is part of Proposition 47, the Safe Neighborhoods and Schools Act. (See People v. Johnson (2016) 1 Cal.App.5th 953, 956.) Proposition 47 makes certain drug- and theft-related offenses misdemeanors unless the offenses were committed by certain ineligible defendants. (Johnson, at p. 957.) "One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative." (Harris v. Superior Court (2016) 1 Cal.5th 984, 992.) Defendant points out he is not requesting Proposition 47 relief but is asking us to examine the interests of society in light of Proposition 47.
Section 1170.18, subdivision (a) provides, "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ("this act") had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." --------
By its terms, section 1170.18 does not apply to defendant. Subdivision (n) provides, "[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act." Defendant's case does not fall within the purview of section 1170.18. We therefore find more apt the cases addressing the Three Strikes law as previously discussed.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.