Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. LA052212, Michael Allen Latin, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Appellant Marcus Erich Gordon appeals from a judgment entered after a jury convicted him of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). Appellant admitted that he served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Appellant also admitted suffering a prior conviction within the meaning of section 11370.2, subdivision (a) and that he was on probation at the time the crime was committed.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
The trial court sentenced appellant to 11 years in state prison, consisting of the midterm of four years, plus one year for each of the four prior prison term enhancements (Pen. Code, § 667.5, sub. (b)), plus three years for the prior drug conviction enhancement. (§ 11370.2, subd. (a).) Appellant appeals and contends that the trial court violated his rights to jury trial and due process by punishing him for exercising his right to a jury trial. We affirm.
FACTS AND PROCEDURAL HISTORY
On April 20, 2006, Los Angeles County Sheriff Department deputies conducting narcotics surveillance approached appellant to detain him. At the sight of the deputies, appellant threw aside a part of a plastic grocery bag containing 23 individually wrapped packages of what was later determined to be cocaine.
On March 14, 2007, appellant appeared for trial in propria persona. Appellant informed the trial court that the People had given him a four-year offer, but that he would only be willing to plead to attempted possession with a sentence of one year concurrent with another case, with “state prison suspended.” The People represented that its file did not contain an offer of four years but reflected an offer of nine years, with a maximum exposure of 15 years. When the trial court asked appellant if he would be interested in accepting a four-year offer, appellant stated that he would not accept any prison time and would only consider a suspended sentence. He also complained about an informant who he believed made false statements against him. Appellant stated he believed his maximum exposure to be 12 years. The trial court stated that the case would have to go to trial in light of appellant’s refusal to accept prison time. It warned appellant that if he was convicted at trial, he faced a maximum sentence of 14 years comprised of a midterm of four years, four 1-year enhancements, and two 3-year enhancements. The trial court suggested that appellant would have a very difficult time convincing a jury because “you have so many impeachable priors that they—they would spend half a day just going over those.” The trial court asked appellant if he would consider a court trial. The trial court represented that if appellant chose a court trial, appellant would receive a sentence ranging from probation, if appellant deserved it, to the People’s maximum offer of nine years, if appellant was clearly guilty. Appellant refused a court trial.
After the jury returned a guilty verdict, appellant waived jury trial on the prior convictions and admitted that he served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), that he suffered a prior conviction within the meaning of section 11370.2, subdivision (a), and that he was on probation at the time the crime was committed. The trial court granted the People’s motion to dismiss an allegation of another prior conviction alleged under section 11370.2, subdivision (a), an attempted sale and transportation of a controlled substance.
On May 31, 2007, at sentencing, the trial court granted appellant’s second motion for a continuance. At the sentencing hearing on July 20, 2007, the trial court denied appellant’s motion for new trial. The People recommended a 12-year term in state prison, comprised of the high term on count one of five years, plus four years based on the four 1-year priors pursuant to Penal Code section 667.5, subdivision (b), plus three years for the prior drug conviction enhancement. (§ 11370.2, subd. (a).)
Section 11370.2, subdivision (a), provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”
Based on appellant’s lengthy criminal record and a weighing of the equities, the trial court denied appellant’s motion to strike his prior convictions pursuant to Penal Code section 1385. The trial court denied probation on the basis that: appellant was statutorily ineligible under Penal Code section 1203.07(a)(1) and Penal Code section 1203(e)(4); even were appellant eligible for probation, probation would be denied because the crime was carried out with planning and professionalism indicating premeditation; the crime involved a large quantity of contraband; appellant’s prior convictions were numerous and of increasing seriousness; appellant served several prior prison terms; appellant was on probation when he committed the crime; and appellant’s prior performance on probation was unsatisfactory.
Penal Code section 1203.07(a)(11) denies probation to a person convicted of possessing for sale cocaine pursuant to section 11351, among other Health and Safety Code sections, and who has one or more convictions for violation of section 11351, among other Health and Safety Code sections.
Penal Code section 1203(e)(4) provides: “Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.”
The trial court sentenced appellant to 11 years in state prison, consisting of the midterm of four years, plus one year for each of the four prior prison term enhancements (Pen. Code, § 667.5, sub. (b)), and three years for the prior drug conviction enhancement. (§ 11370.2, subd. (a).) During sentencing the trial court explained that the sentence was harsh because appellant had had multiple chances to rehabilitate himself, this was his 14th criminal conviction, and he was a burden on society.
Appellant argued that the trial court had offered nine years maximum if he opted for a court trial, and that the People had initially offered four years. He complained that the trial court was punishing him for exercising his right to self-representation by failing to exercise its discretion to strike the prior convictions.
This appeal followed.
DISCUSSION
The trial court did not violate appellant’s Sixth and Fourteenth Amendment rights by punishing him for exercising his right to a jury trial
Appellant contends that the trial court punished him for exercising his right to a jury trial because he was sentenced to more time than the trial court guaranteed him if he had chosen a court trial. The People argue that appellant has waived this argument on appeal because at trial appellant only objected to the sentence on the ground that the trial court was punishing him for exercising his right to represent himself, and not for exercising his right to a jury trial. We find no waiver. Appellant’s failure to object does not preclude him from asserting on appeal that he was denied his constitutional right to a jury trial. (Cal. Const., art. I, § 16; People v. French (2008) 43 Cal.4th 36, 47.)
“It is well settled that to punish a person for exercising a constitutional right is ‘a due process violation of the most basic sort.’ [Citation.] The constitutional right to trial by jury in criminal prosecutions is fundamental to our system of justice (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; People v. Superior Court (1967) 67 Cal.2d 929, 932 [64 Cal.Rptr. 327, 434 P.2d 623, 25 A.L.R.3d 1143]); thus, we have stated that ‘only the most compelling reasons can justify any interference, however slight, with an accused’s prerogative to personally decide whether to stand trial or to waive his rights by pleading guilty.’ [Citation.] ‘A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.’ [Citation.]” (In re Lewallen (1979) 23 Cal.3d 274, 278.)
Appellant cites In re Lewallen, supra, 23 Cal.3d at page 281 for the proposition that just as the trial court is precluded from offering an accused a more lenient sentence than it would impose after trial in return for a guilty plea, so is the trial court precluded from imposing a more severe sentence because the accused elects to proceed to trial. Appellant contends that because his sentence of 11 years was higher than the nine years that the trial court represented it would impose if he were found guilty after a court trial, he was punished by the trial court for exercising his right to a jury trial. But, the mere fact that a defendant received a harsher sentence than that offered during plea negotiations does not lead to an automatic inference that he was penalized for exercising his constitutional rights. (People v. Szeto (1981) 29 Cal.3d 20, 35 (Szeto).) In Szeto, the defendant was offered a sentence with no jail time in return for a guilty plea, but upon exercising his right to trial was sentenced by a different trial judge to four years in prison, with two years stayed. (Id. at pp. 34, 35.) Our Supreme Court held that the defendant could not prevail on a claim that the trial court penalized defendant for exercising his right to jury trial where the defendant admitted the trial court did not say anything reasonably giving rise to the inference that he was penalizing defendant for exercising his right. (Id. at p. 35.)
Here, the record does not show the trial court was bent on punishing appellant for exercising his right to jury trial. Prior to trial, the trial court and the parties discussed the People’s offer of nine years and the purported offer of four years. Appellant adamantly refused to accept either offer, declaring that he would only consider a suspended sentence. The trial court acknowledged that the case had to go to trial in light of appellant’s views. It then represented to appellant that he would be exposed to a range of probation to nine years if he were to choose a court trial, based on whether appellant deserved probation or was clearly guilty. Accordingly, the trial court reserved its sentencing discretion. The trial court also explained the mandatory nature of the four prior prison terms pursuant to Penal Code section 667.5, subdivision (b) and the three-year enhancement pursuant to section 11370.2, subdivision (a) if appellant were to be found guilty in a jury trial. Indeed, the trial court did not impose the 12-year maximum sought by the People. Instead it imposed the middle term, resulting in an 11-year sentence.
Furthermore, there was no evidence that the trial court exhibited any vindictive behavior during the trial. The court repeatedly stated that it understood appellant’s desire for a jury trial; stated that it thought well of appellant’s demeanor and presentation during trial; criticized the People for making an offer that was too high; explained that the trial court was restricted in its sentencing discretion because of appellant’s lengthy criminal record; and demonstrated courtesy in granting continuances as well as patience during appellant’s extended arguments. Thus, this case is not like In re Lewallen, supra, 23 Cal.3d at page 284 , cited by appellant, where the trial court stated: “there’s no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody’s time, and what’s he got to lose. And as far as I’m concerned, if a defendant wants a jury trial and he’s convicted, he’s not going to be penalized with that, but on the other hand he’s not going to have the consideration he would have had if there was a plea.’” Nor is this case like People v. Collins (2001) 26 Cal.4th 297, 309 cited by appellant, where the defendant waived jury trial after the trial court gave vague promises of leniency if he were to do so.
Finally, we cannot say that the trial court abused its discretion in refusing to strike any of the prior convictions. Penal Code section 1385 authorizes the trial court to strike prior convictions in “furtherance of justice.” The term “‘furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. Citations.” (People v. Superior Court (Romero) 13 Cal.4th 497, 530.) The courts must recognize society’s legitimate interest in the fair prosecution of crimes properly alleged by refraining from arbitrarily cutting those rights without a showing of detriment. (Id. at p. 531.) Therefore, a trial court abuses its discretion if it strikes a prior conviction allegation simply because a defendant pleads guilty; or because it is guided by a harsh sentencing result on defendant while ignoring the defendant’s background, the nature of his present offense, and other individualized considerations. (Ibid.)
Here, the trial court stated that it believed it was acting in accordance with the voters and the Legislature in refusing to exercise its discretion to strike the priors based on appellant’s lengthy criminal record and the equities of the case. The trial court’s exercise of its discretion in refusing to strike any priors is also amply supported by the reasons the trial court gave for denying probation: appellant committed the crime while on probation; the offense was serious; a large amount of cocaine was involved; the crime was sophisticated; and appellant did not perform satisfactorily while on probation.
There is no merit to appellant’s contention that the trial court punished him for exercising his right to a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.