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People v. Gaigumez

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 19, 2003
D041345 (Cal. Ct. App. Nov. 19, 2003)

Opinion

D041345.

11-19-2003

THE PEOPLE, Plaintiff and Respondent, v. JORGE C. GAIGUMEZ, Defendant and Appellant.


A jury convicted Jorge C. Gaigumez of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). In a bifurcated hearing the court found he had a strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The court denied a motion to dismiss the strike prior and sentenced him to prison for six years: double the three-year lower term for selling cocaine base with a strike prior. It imposed a concurrent term for possessing cocaine base for sale. Gaigumez contends the trial court erred in denying the motion to dismiss the strike prior.

FACTS

On February 16, 2002, Gaigumez spit a piece of cocaine base out of his mouth and sold it to an undercover San Diego police officer. Moments later another officer saw what appeared to be cocaine base fall from Gaigumezs mouth.

DISCUSSION

Whether to strike a strike prior is in the trial courts discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In ruling whether to dismiss a strike prior the court must consider whether, in light of the nature and circumstances of his present criminal activity and prior serious and/or violent felony convictions, the defendant may be deemed outside the spirit of the "Three Strikes" law and should be treated as though he had not committed one or more strike priors. (People v. Williams (1998) 17 Cal.4th 148, 162-163.) In 1998, Gaigumez was convicted of assault with a deadly weapon on a police officer. (Pen. Code, § 245, subd. (c).) On that occasion, while under the influence of alcohol, he took his employers vehicle without consent, drove several blocks hitting two parked cars and continued driving. He steered the vehicle at a police officer on a motorcycle trying to hit him. The officer took evasive action to avoid being hit and Gaigumez kept driving until he hit another parked car. The court placed him on probation and three times revoked probation. In 2001, Gaigumez was removed from the United States as a deportable alien. In February 2002, he committed the current offenses. Given this relatively brief but active criminal record, the trial court did not abuse its discretion in finding he does not fall outside the scheme of the "Three Strikes" law.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J., OROURKE, J., we concur.


Summaries of

People v. Gaigumez

Court of Appeals of California, Fourth Appellate District, Division One.
Nov 19, 2003
D041345 (Cal. Ct. App. Nov. 19, 2003)
Case details for

People v. Gaigumez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JORGE C. GAIGUMEZ, Defendant and…

Court:Court of Appeals of California, Fourth Appellate District, Division One.

Date published: Nov 19, 2003

Citations

D041345 (Cal. Ct. App. Nov. 19, 2003)