Opinion
C041982.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JEHONATHAN GILL, Defendant and Appellant.
Defendant Joseph Jehonathan Gill entered a negotiated plea of guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted a prior strike under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Under the plea agreement, it was understood that the trial court would consider whether to exercise its discretion to dismiss the strike. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court ultimately declined to dismiss the strike and sentenced defendant to state prison for the two-year lower term, which was doubled to four years based on the strike.
On appeal, defendant claims the trial court did not properly understand and exercise its discretion in considering whether to dismiss the prior strike. We disagree and affirm the judgment.
FACTUAL BACKGROUND
A. Current Offense
The evidence in this case was discovered following a traffic stop on March 15, 2001. In defendants wallet, there was a small spoon of a type commonly used in connection with illegal drugs. In the trunk of the car defendant was driving, there was a black zippered bag containing over 100 plastic sandwich baggies. In the engine compartment, there was a black camera bag. Inside the bag were hypodermic syringes, electronic scales, a bent tablespoon, a plastic straw, a plastic baggie containing a white crystal substance, and a plastic bottle containing 2.66 grams of a brownish crystal substance that later tested positive for methamphetamine.
Defendant initially blamed his mother and said she had asked him to clean out the trailer where he was staying and he found the "stuff" there. He later claimed the white substance was a health food that he had stolen from his father and that the brownish substance was a wet version of the health food, which defendant wanted to liquefy to inject. Notwithstanding his disclaimers, defendant admitted to police that he had been using methamphetamine for days, and he pointed out fresh injection marks. He eventually began crying and indicated he was a drug addict. He tested positive for methamphetamine and marijuana.
B. Defendants Record, Background, and Recent Prospects
Defendant was 20 years old and on probation at the time. He admitted probation violations based on the positive drug test and his possession of methamphetamine and a hypodermic syringe. Defendant had been living in Oroville with his father, and he reported that they were trying to start a T-shirt business.
Defendant was visiting his child in Shasta County approximately once a month, but he admitted that he was using the visits as an excuse to get methamphetamine in Shasta County. Defendant had a significant substance abuse problem that began when he was a teenager. Defendant reported using methamphetamine on a daily basis and taking advantage of the fact that the probation department was not testing him for drugs. He indicated his renewed use of methamphetamine began as a result of alcohol use.
Defendants criminal record includes drug offenses and other crimes. As a juvenile in 1996, he committed: a weapons offense under Penal Code section 12020, subdivision (a), using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and unlicensed possession of a hypodermic syringe (Bus. & Prof. Code, § 4140 [formerly Bus. & Prof. Code, § 4149]). Defendant performed poorly on juvenile probation, and he committed a battery (Pen. Code, § 242) in 1997. As an adult, defendant was convicted in 1999 of five offenses on four separate occasions. Specifically, defendant was convicted of possession of burglary tools (Pen. Code, § 466), possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), two separate counts of reckless driving (Veh. Code, § 23103), and an additional weapons violation under Penal Code section 12020, subdivision (a). Defendant served multiple jail terms for these offenses, and he was also placed on probation for the possession of burglary tools.
In June 2000, defendant was convicted of making criminal threats (Pen. Code, § 422), which is his prior strike offense. The record includes little information about the circumstances of the offense. Defendant was again placed on probation, and he was ordered to serve 189 days in jail. Before violating probation based on his criminal conduct in the instant case, defendant had sustained a violation for returning to Shasta County without the permission of his probation officer.
While the instant case was pending and defendant was out of custody, he participated in drug treatment and stayed at a couple of facilities, one of which closed. However, in early 2002, defendant did not attend all of the counseling sessions of a program that his probation officer had instructed him to attend. On or about February 28, 2002, police found defendant hiding under his house; a drug test indicated he had used methamphetamine. When he was released on bail, he briefly left the county without reporting to his probation officer or advising the officer of his whereabouts. Defendant subsequently contacted the probation officer, and he successfully completed a 45-day residential treatment program. But, upon his release, he again failed to immediately report to his probation officer as directed.
The officer who prepared the probation report characterized defendants performance "as not even rising to the level of marginal." The officer explained, "[Defendant] has continued to show his unwillingness to comply with the Courts directives and the conditions of his probation. Its only when he is faced with further incarceration or the prospect of state prison that he attempts to portray himself as a model probationer. As soon as the threat of jail/prison is gone, the defendant reverts to his old behaviors which include substance abuse, criminality and blatant non-compliance with probation. [Defendant] is an extremely manipulative, disingenuous, and cunning individual. All of these characteristics are aggravated by his continued substance abuse."
Defense counsel provided additional information to the trial court concerning defendants more recent progress, which the court apparently credited. Defendant purportedly attended narcotics anonymous (NA) meetings and an outpatient drug program on a regular basis, he graduated from a job placement "bootcamp" and obtained a job at Moss Lumber Company, and he received two promotions. His employer submitted a letter on his behalf for purposes of sentencing. Defendant was living with his fiancée and two-year-old son and supporting his family.
C. Initial Hearing Concerning Defendants Prior Strike
At a hearing on June 24, 2002, the trial court declined to dismiss defendants prior strike after indicating its familiarity with People v. Williams (1998) 17 Cal.4th 148 (Williams ). The court initially commented that defendant was not unique in that he had become addicted to drugs at a young age and "followed" his addiction with "a criminal history." The court commented that defendant had been "in programs" and "out of programs" through "[n]o fault of his own, in at least one instance." The court noted that addicts were sometimes successful and sometimes not, and many would relapse until they died or hit "classic rock bottom and get the message . . . ." The court commented, "And to say that [defendant] is cleaning up his act only because hes going to state prison, I personally say, fine. Whatever it takes."
The trial court nevertheless explained that inclusion of the criminal threats offense within the three strikes law had "tied the judges in particular cases." The court noted defendant had done very well in the last four months. But the court emphasized it did not have "a lot of leeway here," noting defendant had "generated a criminal record that is recent in nature." The court commented, "And upon achieving that strike conviction you really did nothing to benefit yourself. You continued on your criminal path." The court emphasized that it also had to consider defendants earlier "abysmal conduct" on probation and noted that defendants strike was recent and he had essentially ignored probation. But the court reiterated that it liked what defendant had been doing recently and it appeared to be "a turn around."
The trial court concluded, "Im sure [defense counsel], as Ive said, has already told you that I dont have much to work here with. I have what the voters have told me I have, what the [L]egislature has told me. And I have what the case law has told me. And the case law and the propositions and the statutes are all black and white and dont give me the flexibility, I believe, to strike that strike." The court indicated it would have continued defendant on probation if it "had the room to do it" and again commented on the "marvelous strides" he had made recently. The court then stated, "But at this point if I strike the strike its coming back from the Third DCA indicating that Ive abused . . . my discretion given what appears in your record."
D. Sentencing Hearing
Defense counsel later asked the court to reconsider its decision. At sentencing, the court stated that it did not see how it could reach a different result without being reversed. The court emphasized that it had to follow Romero, supra, 13 Cal.4th 497, Williams, supra, 17 Cal.4th 148, and their progeny and the state Supreme Court had been "clear on the signposts that permit a trial court to strike a strike." The court stated, "And I think that Ive read those signs in making my decision not to strike the strike, and I did not think that I was on thin ice either way. I thought I was on solid footing." The court commented that it did not understand how it could "re-read Williams to say something different two weeks later."
Following argument, the trial court made some additional remarks. The court initially said that it did not dispute defense counsels statements about the progress that defendant had made and he was doing a good job recovering from his addiction problems after having apparently hit "rock bottom." The court said that the indicated sentence (double the lower term) would not "be throwing away" all defendant had accomplished. But the court also told defendant it thought "its really not going to be much of a service to you, to your wife, your child, your father, your community, Moss Lumber if you like, to put you in state prison." The court nevertheless emphasized that it had a greater responsibility to obey the law.
The court explained: ". . . Ive looked hard at all the case preceden[t]s, and Ive looked hard at the statutes, and I find that if I were to strike the strike and thereby put you on probation, conceivably, the reasons I would be striking the strike are reasons that the [S]upreme [C]ourt has said I cannot do. They would be abuses of my discretion. Which is to say if I have a subjective belief that this serves a disservice to you, that this is an inappropriate manifestation of the law, and for those reasons if I were to strike the strike, I would be abusing my discretion; and there are some other phrases in a similar vein that the courts use . . . . [¶] So thats why Im doing what Im doing, is because I feel that I am controlled by the laws that the People of the State of California have voted in by proposition and then have been defined by the [L]egislature and — and case law."
The court continued, "And I certainly invite your counsel to take whatever appellate remedy he thinks is appropriate. [¶] And I hope you do, [defense counsel]. This would be one instance that I would not mind an appellate court saying no, youve done wrong, you could have looked at this scenario, [judge], and you could have taken this path." The court noted there were other similar cases where "theres an individual that is steamrolled and rolled over by a need for the greater good." After making some additional comments about the law, the court concluded, "At any rate, what Im saying to you is that youve done well. Ive been very impressed. I wish you had done it earlier. Im sure you do too. But rock bottom is rock bottom and it occurs when it occurs. And for you it occurred after you had already achieved your strike. Some time after you had done that. And Im of a hope that you wont let this deter your efforts in the future to be a good dad and a good husband and a functioning member — a good son, a functioning member of the community."
DISCUSSION
Dismissal of a strike under Penal Code section 1385 is a departure from the sentencing norm. (See People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) To justify reversal on appeal, generally an "error must affirmatively appear on the record." (Ibid. ; accord, People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Many factors are pertinent to the courts decision, but the ultimate question is whether defendant falls outside the spirit of the three strikes law. (Williams, supra, 17 Cal.4th at p. 161.) "[T]he 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." (Ibid.) In making this determination, the sentence imposed is "the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (People v. Garcia (1999) 20 Cal.4th 490, 500.)
Here, defendant does not claim that it is simply an abuse of discretion under the circumstances of this case not to dismiss his prior strike offense. Rather, he claims the trial court did not understand that it would not have been an abuse of discretion if it dismissed the strike and that the courts assessment of the relevant factors indicates he fell outside the spirit of the law. The People suggest that we may summarily reject defendants argument because "the trial court was aware of its discretion" and "simply declined" to dismiss defendants strike. But that is precisely the issue on appeal: whether the trial court properly understood and exercised its discretion. Although we conclude that it did, defendants argument must be discussed on its merits.
The trial courts remarks reflect that it understood its discretion and its limits. Having considered the relevant law in the matter, the court indicated that its own reasons for wanting to dismiss the prior strike did not justify a departure from the sentencing scheme. In other words, the courts inclination to dismiss the strike was not based on a conclusion that defendant fell outside the spirit of the three strikes law after consideration of the totality of the factors in Williams, supra, 17 Cal.4th 148. It was based on other factors. The court explained, "[T]he reasons I would be striking the strike are reasons that the [S]upreme [C]ourt has said I cannot do. They would be abuses of my discretion. Which is to say if I have a subjective belief that this serves a disservice to you, that this is an inappropriate manifestation of the law, and for those reasons if I were to strike the strike, I would be abusing my discretion . . . ." The court was correct. A court acts improperly in dismissing strikes if it is "`guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, while ignoring `defendants background, `the nature of his present offenses, and other `individualized considerations." (Romero , supra, 13 Cal.4th at p. 531.)
In fact, the trial courts comments are analogous to those of the court in People v. Zichwic (2001) 94 Cal.App.4th 944 (Zichwic), a case from the Sixth Appellate District. In Zichwic, the trial court indicated that it wanted to give the defendant a lesser sentence but it did not believe it had the legal authority to dismiss sufficient strikes and impose a "reasonable" sentence. (94 Cal.App.4th at p. 959.) When defense counsel asked the court to clarify if it felt it did not have the power to dismiss any strikes, the court said that it did not believe it did after applying Williams, supra, 17 Cal.4th 148, and considering the relevant factors. (Zichwic , supra, 94 Cal.App.4th at p. 959.) When the prosecutor asked if the court found the case fell within the spirit of the three strikes law, the court commented, "`I think it does. I dont know if I agree with it but I am going to do it." (Ibid.)
The Sixth Appellate District rejected defendants argument that the trial court misunderstood its discretion, noting that the court had indicated its familiarity with the controlling law and considered the relevant factors but "recognized that it could not strike a strike based on a personal feeling that the Three Strikes law is harsh." (Zichwic, supra, 94 Cal.App.4th at p. 960.) The appellate court explained, "Our review of the trial judges remarks reflects that he was aware of his limited discretion to strike strikes. The court did not neglect its own findings, as defendant asserts. Instead, after considering `the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the court could find no reason for concluding that defendant fell outside the spirit of the Three Strikes statute." (Id. at pp. 960-961.)
The same could be said of the instant case. As in Zichwic, the trial court emphasized that its consideration was guided by the state Supreme Courts precedent, in particular Williams, supra, 17 Cal.4th 148. The trial court made its determination based on an assessment of the relevant factors and indicated that if it rendered a decision to the contrary it would be based on improper factors.
In this respect, we specifically reject defendants claim that "it is apparent from the trial courts remarks that [defendants] background, character and his prospects placed [him] outside the spirit of the Three Strikes Law." The courts comments about defendants behavior up until the few months before sentencing put into perspective its otherwise favorable and encouraging comments about his more recent conduct and prospects for rehabilitation. The court repeatedly referred to defendants record, his recent offenses, and the fact that he had not taken advantage of earlier opportunities at rehabilitation but had continued on his "criminal path." And though most of the prior offenses are for misdemeanors and drug offenses, defendants record is nevertheless impressive given his age and the obvious pattern of recidivist behavior. Even defendants conduct in the instant case reveals a measure of criminal sophistication, given the nature and circumstances under which the drugs and associated paraphernalia were found. Further, the trial court commented on defendants generally "abysmal conduct" on probation.
In short, the trial courts comments reveal a reasonable assessment of the relevant factors under Williams, supra, 17 Cal.4th 148. Having considered the factors, the court was convinced there was nothing about defendants case that warranted a finding that he fell entirely outside the spirit of the three strikes law as a second strike offender. The resulting sentence of four years is not unjust, nor will it prevent defendant from renewing his efforts toward rehabilitation sometime in the near future.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., and HULL, J. --------------- Notes: Relying on his own factual description in a motion to the trial court, defendant minimizes the severity of the offense. However, he did not attach supporting documentation to his motion, and the prosecutor successfully objected when defense counsel attempted to argue the matter based on defendants factual account. The prosecutor did not, however, specifically object when counsel subsequently commented that defendants conduct may have arisen from a situation involving "great provocation."