Opinion
F055642
6-26-2009
THE PEOPLE, Plaintiff and Respondent, v. JAVANCE J. HOUSE, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Ardaiz, P.J., Vartabedian, J. and Cornell, J.
All statutory references are to the Penal Code unless otherwise stated.
Pursuant to a plea agreement, Javance J. House pled no contest to two counts of grand theft auto (Pen. Code,1 § 487, subd. (d)), and admitted having suffered two prior "strike" convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and three prior convictions for which he served prison terms (§ 667.5, subd. (b)). Sentenced to a total unstayed term of 28 years to life in prison, he now appeals, claiming the trial court erred by denying his request to dismiss his prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero ). For the reasons that follow, we will affirm.
THE ROMERO REQUEST
The facts underlying the offenses are not pertinent to the issue raised on appeal. Briefly stated, and as described in the probation officers report (RPO), House and a coparticipant stole two vehicles from a dealership by loading them onto a trailer. When detected by police, they led officers on a high-speed chase.
According to the RPO, House was born in 1967 and was 40 years old at the time of the present case. His juvenile record consisted of a 1984 adjudication of first degree burglary, for which he received a Youth Authority commitment. His adult record consisted of a 1986 conviction of first degree burglary, a 1989 conviction of battery on a custodial officer, a 1989 conviction of possession of narcotics, and a 1998 conviction of making criminal threats, all of which resulted in prison sentences; and, between 1997 and 2004, four misdemeanor convictions, for which House received jail and/or probation. The RPO also reflected that House was returned to custody numerous times while on parole following his 1989 and 1998 convictions.
Prior to sentencing, defense counsel filed a written statement in mitigation and requested that the court strike Houses 1986 and 1998 serious felony convictions. While acknowledging Houses criminal history, counsel argued that his strike priors were extremely old, he had an extensive history of substance abuse, and he had multiple mental health issues. Counsel argued that, with proper treatment for these issues, House could become a positive member of society, and in fact owned his own handyman business prior to the present case. Counsel also pointed out that neither Houses strike offenses nor the present crimes were violent.
The prosecutor opposed the request. In support, he proffered a transcript of Houses plea in his 1998 case. The transcript showed that House admitted having suffered two prior serious felony convictions for residential burglary, one in 1984 and the other in 1986. As the court in the 1998 case agreed to dismiss those strike allegations, thereby sparing House from a life sentence, the prosecutor argued House did not deserve leniency yet again.
At sentencing, defense counsel reiterated his Romero request. House personally asked the court to strike one of the prior convictions, give him a prison sentence, and order him into a drug treatment program in prison. House expressed remorse for his crimes, but emphasized that he had an extensive drug problem, his criminal history contained no actual violence, and his strike priors were 10 and 22 years old. The prosecutor asked the court to deny the request, stating:
The first amended information alleged, and House admitted, that his residential burglary conviction occurred in 1989. We will assume, based on the defenses written motion, the RPO, the transcript from the 1998 case, and Houses comments, that 1986 is the correct date.
"This defendant was facing this prospect back in 1998 in the Fresno Court and I dont know, Prop. 21 changed a lot of things, or I dont know if, even if before that a first degree burglary as a juvenile insisted [sic] a strike. I dont think it did. But it looks like they considered that to be two strikes that he was facing. He was facing 25 years to life.
"And the Court decided ... that the Court was going to strike not one but the two of them. Now, whether or not one of them was actually a strike or not, thats not important.
"I think whats important is to see how the defendant reacted to this act of leniency from the Court by giving him another chance. Clearly, we see that the Courts leniency was misplaced. The Courts faith in him rehabilitating was wrong, and he was not deterred from continuing the life of crime, and he didnt care that it could lead to him being in this situation once again facing a life sentence.
"It didnt stop him. It didnt stop him then and we can see from that prior act that it wont stop him in the future. If the Court gives him another chance hes going to commit a crime again and then hes going to face the situation again and again. That is just who he is. He commits crimes, constantly. Hes been on parole and hes returned on parole back to prison numerous times. He cant blame the system.
"He was given an opportunity to deal with his addiction and he, it doesnt have to be just from the criminal system. He can do it on his own if he wants to. Hes never wanted to address that. He just wants to steal to support his habit, and I dont believe that this Court should provide him with another opportunity."
After briefly taking the matter under submission, the court determined it was not "appropriate" to strike one of the prior convictions. It explained:
"[I]n Mr. Houses favor are the following factors:
"One of the priors is quite old. Secondly, Mr. House appears to suffer from a mental condition which to a certain extent may mitigate his moral culpability, although it does not provide a legal defense to the crime. And thirdly, his role in this crime appears to have been somewhat secondary, at least in the sense that he was not the driver....
"Factors that are not in favor of Mr. Houses request are that in addition to the two strikes alleged in this case he appears to have a juvenile adjudication for a first degree burglary.
"His criminal behavior based on the information set forth in the probation report has been Moore [sic] or less constant since 1984.
"His performance on parole has been terrible with repeated returns to custody.... There really is no substantial period ever of time since 1984 that Mr. House has stopped violating parole and/or committing crimes.
"With regard to the nature of this offense, it is true that the theft itself did not involve any violence; however, as thefts go, it appears to be Moore [sic] aggravated than most involving a really brazen taking of two new vehicles from the dealers lot, loading them on the truck and then engaging in a relatively high speed and dangerous chase from the area of Highway 198 clear up into Fresno.
"During this pursuit, Mr. House personally had at least two opportunities to abandon ... his flight....
"So we have his word for it that his involvement was secondary. We dont know what conversation was between the two occupants during the chase, but certainly Mr. Houses involvement was, even if it was less aggravated than the codefendants, was certainly substantial in this matter."
DISCUSSION
Trial courts have limited discretion under section 1385 to dismiss prior convictions in three strikes cases. (Romero, supra, 13 Cal.4th at p. 530; see People v. Williams (1998) 17 Cal.4th 148, 162.) "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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." [Citations.]" (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) "[W]hen a defendants criminal conduct has been proven to be immune from ordinary modes of punishment, one of the duties of the judiciary is to protect the public by utilizing recidivist sentencing statutes to incarcerate such persons. [Citations.]" (People v. Castello (1998) 65 Cal.App.4th 1242, 1250-1251.) Thus, when sentencing pursuant to the three strikes law, objectives include protection of public safety and punishment of recidivism. (Castello, at p. 1251.) "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." [Citations.] 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." (Carmony, at p. 377.)
In deciding whether to dismiss or vacate a prior strike allegation or finding, or in reviewing such a ruling, "the court in question 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." (People v. Williams, supra, 17 Cal.4th at p. 161.) By establishing a sentencing norm, circumscribing the trial courts power to depart from that norm, and requiring the court explicitly to justify its reasons for doing so, "the [three strikes] law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances." (People v. Carmony, supra, 33 Cal.4th at p. 378.) These include situations in which the trial court was not aware of its discretion to dismiss, considered impermissible factors in declining to dismiss, or where the sentencing norms produce, as a matter of law, an arbitrary, capricious, or absurd result under the specific facts of a particular case. (Ibid.)
House contends the trial court considered impermissible material, and so abused its discretion, by implicitly construing his prior juvenile burglary adjudication as a third serious felony, even though it did not qualify as such as a matter of law. (See § 667, subd. (d)(3)(D); Welf. & Inst. Code, § 707, subd. (b); People v. Garcia (1999) 21 Cal.4th 1, 15; People v. Bowden (2002) 102 Cal.App.4th 387, 390.) He also says the prosecutors argument on this point was likewise erroneous. Because the trial court relied on the misconstrued adjudication as a significant factor weighing against Houses Romero request, the argument runs, a remand for resentencing is required.
We have quoted the comments of both court and counsel at some length, ante. Fairly read, they demonstrate that Houses premise is faulty. The trial court did not implicitly construe the juvenile adjudication as an unalleged serious felony (i.e., a third strike prior) per se, but instead properly found it to be a significant offense that weighed against Houses request. Nor was there a problem with the prosecutors argument: The gist of it was not that the juvenile adjudication constituted an unalleged prior serious felony, but that House previously was given lenient treatment and yet continued to offend, and so should not again be afforded leniency. The court could properly consider the fact that House previously was given a break and did not benefit from it. (See People v. Gaston (1999) 74 Cal.App.4th 310, 322.)
Even if we were to find the courts remarks ambiguous on this point, the ambiguity would be insufficient to overcome the basic presumption that the court knew and applied the correct law. (See Evid. Code, § 664; People v. Mack (1986) 178 Cal.App.3d 1026, 1032.)
As there was no impropriety in the prosecutors argument or the courts reliance on the juvenile adjudication, it follows that defense counsel was not ineffective for failing to object to either. (See People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 [failure to make unmeritorious objections does not constitute deficient performance].) Accordingly, we proceed to a determination of whether the trial court erred by refusing to strike one or both of Houses prior serious felony convictions.
Circumstances in which a trial court can be said to have abused its discretion by denying a Romero request do not include situations in which a reasonable person might disagree about whether to strike one or more prior conviction allegations. (People v. Carmony, supra, 33 Cal.4th at p. 378.) "Because the circumstances must be `extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case — where the relevant factors described in [People v.] Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ — the failure to strike would constitute an abuse of discretion." (People v. Carmony, supra, 33 Cal.4th at p. 378.)
Houses case "is far from extraordinary." (People v. Carmony, supra, 33 Cal.4th at p. 378.) His criminal record spans more than two decades and consists of more offenses than just those mentioned by the trial court. It appears he has never been able to remain crime-free for any appreciable length of time. Despite his professed ability to be gainfully employed, this fact does not reflect well on his prospects for the future, especially in light of his virtually lifelong substance abuse. With the exception of time spent in the California Rehabilitation Center following his 1986 conviction, there is no suggestion he ever sought help for this problem. Although his present offense was not violent, his record contains both misdemeanor and felony battery convictions, as well as the making of criminal threats. Thus, while not the most violent felon we have ever seen, he cannot be said to be totally nonviolent.
According to the RPO, House related that he began drinking alcohol at age nine and was an alcoholic, and that he began using rock cocaine and smoking crystal methamphetamine when he was young. He said he would use as much as he could, as often as he could.
Under the circumstances, there is little about Houses present felonies, his prior record, or his background, character, or prospects that is favorable to his position. (See People v. Williams, supra, 17 Cal.4th at p. 163; People v. Philpot (2004) 122 Cal.App.4th 893, 906-907; People v. Gaston, supra, 74 Cal.App.4th at p. 321.) The pertinent factors were before the trial court; there is no indication in the record that it failed to consider them (see Philpot, supra, at p. 907), and we cannot conclude it somehow misweighed them.
House says the record fails to show the court considered the length of the sentence he would receive if sentenced as a second-strike offender. However, defense counsel expressly argued that a lengthy time in prison was an appropriate punishment. There being no affirmative showing to the contrary, we presume the trial court considered this factor as well.
In light of the foregoing, Houses case does not present the type of extraordinary situation in which he must be deemed to fall at least partially outside the spirit of the three strikes law. (See People v. Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, and as it did not rely on erroneous material in making its decision, the trial court did not abuse its discretion in denying Houses Romero request. It necessarily follows there was no violation of his due process rights. (See In re Large (2007) 41 Cal.4th 538, 550; People v. Eckley (2004) 123 Cal.App.4th 1072, 1081.)
DISPOSITION
The judgment is affirmed.