Opinion
C055058
4-18-2008
THE PEOPLE, Plaintiff and Respondent, v. JACOB ALLEN FORD, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Jacob Allen Ford was convicted after a jury trial of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) while personally armed with a firearm (Pen. Code, § 12022, subd. (c)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), unlawful possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)), and carrying a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)(2)). The trial court found defendant had two prior serious felony convictions within the meaning of Penal Code section 1170.12 — one for robbery and one for assault with a firearm.
Defendant was sentenced to 25 years to life in prison. 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
Defendant was the passenger in a car with a very loud muffler. A deputy followed the vehicle and when the driver pulled over to look under the hood, the deputy pulled up behind the car to warn the driver of the muffler problem. When the deputy approached the car, defendant was making furtive gestures. He asked the driver to sit down and saw a bulge in the drivers pants (which was later discovered to be a methamphetamine pipe). The deputy called for backup.
A search of the vehicle uncovered a baggie of crystal methamphetamine and a loaded black handgun, both located in places where defendant had been moving his hands. A backpack in the trunk contained a cell phone, a digital scale with methamphetamine residue, and a wallet with defendants identification. More cell phones were found in the center console.
Defendants female friend claimed the drugs and gun were hers. She had spent the night with defendant at the drivers house the night before. The morning of defendants arrest, she placed the drugs and gun in the car to keep them away from her children.
The jury found defendant guilty of transportation of methamphetamine while personally armed with a firearm, possession of methamphetamine, unlawful possession of a firearm by a felon, and carrying a loaded firearm in a vehicle. The trial court found defendant had two prior strikes — one for robbery and one for assault with a firearm.
Defendant was 27 years old at the time of the January 2007 sentencing hearing. His prior criminal history included the following juvenile offenses, each occurring on a separate occasion: truancy, petty theft, grand theft of a firearm, possession of a controlled substance. Defendant was also found in violation of his probation twice while still a juvenile. When defendant was 19 years old, he was convicted of his two strike offenses, robbery and assault with a firearm, and sentenced to five years in state prison.
Defendant filed a motion requesting the court dismiss at least one of his prior strikes pursuant to section 1385 and Romero. In the motion, he emphasized that the prior strikes had been committed on the same occasion. At oral argument, defense counsel again emphasized that the two prior strikes were a single event, and noted that defendants juvenile offenses were 10 years ago. The prosecutors opposition pointed out that the strikes arose from a home invasion robbery wherein defendant, armed with a firearm, assisted his cohort in holding one of the victims at gunpoint while his cohort beat and robbed them. The prosecutor noted defendants young age but also noted that defendant committed his strike offenses shortly after becoming an adult, was sentenced to five years for the offenses, violated parole, and was only last released on parole three months before committing the current offenses.
In denying the request to strike, the court stated: "Mr. Ford, let me tell you that this is a closer case than some, but there is one absolutely undeniable fact that is, in my view, aggravates these cases, aggravates this case, and puts you squarely within the spirit and intent of the three strikes law, and this is the fact that you were in possession of a loaded firearm on both your prior occasions under prior strikes, and on the occasion of your current underlying offense. The probation department writes that in their [sic] view you are a menace to the public, and, um, I share that view. Sadly you are a young man, and yet on both these occasions you have not only used a firearm, possessed it, and youve used it, not in the underlying crime, but in the strikes crime, and so because of that, that absolutely undeniably adds a dangerous element to these crimes. It seems to me that when the voters enacted the three strikes law they were trying to identify people just like you who were willing to commit violent or serious crimes and were willing to do them with a firearm. And, um, that is the reason in my view why you are not entitled to the exercise of my discretion in favor of striking any of your strikes."
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, § 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, 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.) "[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 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." [Citations.] 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. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
Defendant argues the trial court improperly declined to strike any of his prior strikes based on consideration of a single factor — defendants possession of the firearm. He contends the court did not consider his young age and emphasizes that he was convicted of both his prior strikes in the same proceeding.
As a preliminary matter, we note that, to the extent defendant 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 had 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. 309.) In that regard, defense counsel emphasized that the prior strikes occurred on the same occasion, and the age of the juvenile court offenses. Both the prosecutor and the court acknowledged defendants relatively young age and the probation officers report stated defendant was 27 years old.
Thus, the trial court was aware of these factors when deciding whether it would strike defendants prior strikes. The fact that the trial court chose to focus upon certain factors when explaining his 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, J.
ROBIE, J.