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People v. Fieseler

Court of Appeal of California
Jul 1, 2008
C057866 (Cal. Ct. App. Jul. 1, 2008)

Opinion

C057866

7-1-2008

THE PEOPLE, Plaintiff and Respondent, v. RAMON VANCE FIESELER, Defendant and Appellant.

Not to be Published


Defendant Ramon Vance Fieseler pled no contest to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). Defendant also admitted one prior serious felony conviction within the meaning of Penal Code section 1170.12 and one prior prison term within the meaning of Penal Code section 667.5, subdivision (b), both for first degree burglary.

Defendant was sentenced to seven years in prison, with an additional 30 days in jail to be served concurrently with his prison term. On appeal, he contends the trial court abused its discretion when it denied his motion to dismiss his prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We shall affirm.

BACKGROUND

Defendants lengthy criminal history began in 1983 when he, then a juvenile, was arrested for grand theft. The matter was closed after investigation, but one year later, defendant was arrested for receiving stolen property and declared a ward of the court. Defendant was arrested twice more as a juvenile and remained a ward of the court until his first felony conviction in 1986, when his wardship was terminated and he was sentenced to four years in state prison.

Defendant received five more felony convictions (two of which were alleged as strikes for his current offense), ten misdemeanor convictions, and violated his parole or probation four times between 1988 and 2006.

Then on October 4, 2006, defendant was driving a car he borrowed from a friend and was stopped by a police officer because there was no front license plate on the car. The officer immediately recognized defendant from a prior encounter and confirmed his recollection that defendants drivers license was suspended. When he had defendant get out of the car, the officer saw a plastic bindle and what appeared to be methamphetamine on the carpet of the drivers side floorboard.

Defendant was arrested and charged with possession of methamphetamine (count 1), transportation of methamphetamine (count 2), and driving with a suspended license (count 3). The prosecution also alleged numerous special allegations, including two prior strike convictions. Defendant pled no contest to counts 2 and 3, and admitted one strike and one prior prison term.

In exchange for defendants plea, the prosecution agreed to dismiss count 1; the remaining sentencing enhancements and special allegations, including the other strike allegation; and the following pending cases: "07F3021, 05M6649, 06TR2494, 06TR6182, 06TR7012, 07TR2484, 07TR4041, [and] infractions." The prosecution also agreed to a maximum seven-year sentence.

Defendant filed a motion requesting the court dismiss the remaining prior strike pursuant to Penal Code section 1385 and Romero. In the motion, he emphasized his "substance abuse problem," his acceptance into a drug rehabilitation program, and the "relatively minor" nature of his current offense. The prosecutors opposition pointed out defendants extensive criminal record, his repeated violations of parole, and his drug addiction, for which defendant had apparently never made any effort to obtain treatment.

The trial court denied defendants motion, stating: "So, in sum, using the Wilson — the Williams [sic] template, my analysis is that the people have done the work of the court in setting — or striking one of those strikes. And I will, finding a — striking a second strike is not within the guidelines of Williams, so the second strike remains."

DISCUSSION

A trial court has discretion to strike a prior serious felony conviction only if the defendant falls outside the spirit of the "three strikes" law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Romero, supra, 13 Cal.4th at pp. 529-532.) In deciding whether to do so, the 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 schemes 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." (Williams, supra, 17 Cal.4th at p. 161.)

The trial courts "failure to . . . strike a prior [felony] 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 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]." (Id. at p. 378.) In reviewing for an abuse of discretion, we are "guided by two fundamental precepts. First, `"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." [Citation.] Second, a `"decision will not be reversed merely because reasonable people might disagree. `An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citation.] Taken together, these precepts establish that 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 pp. 376-377.)

Thus, only in "an extraordinary case — where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ" — would the failure to strike a prior felony conviction be an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)

Defendant argues the trial court improperly declined to strike any of his prior strikes based on its consideration of a single factor — his prior record. He contends the court did not consider that the present offenses were not "serious or violent"; defendant has a drug problem but has never been offered a drug rehabilitation program; none of defendants priors are violent; and that, even without the strike, defendant would have received a harsh sentence.

As a preliminary matter, we note that to the extent he is objecting to the adequacy of the courts statement of reasons, defendant has forfeited any such claim because he failed to object at sentencing. "`An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or [forfeiture] . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics omitted; see In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [forfeiture is the correct legal term for loss of right based on failure to assert it in a timely fashion].)

Defendant remained silent in the face of the courts denial of his Romero motion, making no objection to either the decision or the reasoning given by the court. As a result, his claim is forfeited on appeal. (People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Saunders (1993) 5 Cal.4th 580, 589-590 [failure to make timely assertion of a right before a tribunal having jurisdiction to determine it results in forfeiture of that right].)

In any event, defendants claim fails on the merits. While Penal Code section 1385 requires that the court state its "reasons for the dismissal," there is no such requirement where the court denies a request to dismiss a prior strike. (See Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 531; People v. Orin (1975) 13 Cal.3d 937, 945.) "The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers), citing People v. Kelley (1997) 52 Cal.App.4th 568, 582.)

Here, there is no indication in the record that the trial court failed to consider relevant factors in making its decision. The court allowed both defense counsel and the prosecutor a full opportunity to argue and point out relevant factors, both orally and in writing. As in Myers, defense counsel brought to the trial courts attention the holding of Romero and the factors in favor of dismissing one of defendants strikes. (See Myers, supra, 69 Cal.App.4th at p. 310.) In that regard, defense counsel emphasized that the current offense was "relatively minor," that defendant has a substance abuse problem, and that defendant has never participated in a drug treatment program. The prosecutor also acknowledged defendants addiction, and the probation report stated that defendant now had been accepted into a drug rehabilitation program. The probation report further described the nature of defendants current offense and his criminal record.

Thus, the trial court was aware of these factors when deciding whether it would strike defendants prior strike. Indeed, at sentencing, the court opened the hearing by saying: ". . . we have [defendants] motion to strike the remaining strike. We have a response from the people opposing that. And I also have the report from the probation department. All three of those entered into my preparing for this motion today." The fact that the trial court chose to focus upon certain factors when explaining its reasoning to defendant does not affirmatively establish that the court did not consider any other factors. (Cf. Myers, supra, 69 Cal.App.4th at p. 310.)

DISPOSITION

The judgment is affirmed.

We concur:

NICHOLSON, Acting P.J.

ROBIE, J.


Summaries of

People v. Fieseler

Court of Appeal of California
Jul 1, 2008
C057866 (Cal. Ct. App. Jul. 1, 2008)
Case details for

People v. Fieseler

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAMON VANCE FIESELER, Defendant…

Court:Court of Appeal of California

Date published: Jul 1, 2008

Citations

C057866 (Cal. Ct. App. Jul. 1, 2008)