Opinion
A147618
09-25-2017
THE PEOPLE, Plaintiff and Respondent, v. GRAIG MAURICE HOUSTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC082881A)
Pursuant to a negotiated plea bargain, defendant Graig Maurice Houston pleaded no contest to possession of marijuana in jail. Defendant appeals from the trial court's denial of his motion to strike a prior felony conviction at sentencing, arguing (1) the trial court erred by relying on facts related to a charge dismissed as part of his plea bargain in in violation of People v. Harvey (1979) 25 Cal.3d 754 (Harvey); (2) the trial court abused its discretion because defendant falls outside the spirit of the "Three Strikes" law "in part"; and (3) his sentence violates the state and federal constitutional prohibition against cruel and unusual punishment. Defendant further contends the trial court erred in denying his pretrial discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). While Harvey likely applies in this case, we decline to remand for resentencing because there is no reasonable probability the court would have granted his motion. We reject defendant's other claims of error and affirm the judgment.
I. BACKGROUND
In February 2015, defendant was in county jail. While doing an inmate count, a correctional officer approached defendant in his cell. The officer asked to see defendant's wristband to help identify him. When defendant moved to place a book on his desk, the officer saw something slide down under his pants. The officer asked defendant to remove the object. Defendant handed him a rolled-up pair of socks containing a small plastic bindle, which was later discovered to contain marijuana.
The following morning, the same correctional officer went to defendant's cell to rebook him on charges of possessing marijuana in jail. After the officer asked defendant to exit his cell and handcuffed him, defendant became verbally aggressive. As they proceeded down the corridor, defendant continued being verbally aggressive and using profanity. The officer put defendant on his right side and had him face the wall. Defendant repeatedly turned around and yelled at the officer. The third time he did so, the officer physically turned defendant to the wall, grabbed his handcuffs, and told him not to turn around. When defendant turned back toward him again, the officer pushed him against the wall. Defendant grabbed the officer's groin, then the officer put his arm over defendant's shoulder and pulled him to the ground. As the officer was on top of defendant, he noticed defendant was trying to bite him. The officer suffered abrasions to his right elbow and some stiffness in his neck and back.
The San Mateo County District Attorney filed an information charging defendant with possessing marijuana in jail (Pen. Code, § 4573.6; count 1) and resisting an executive officer (§ 69; count 2). The information further alleged that defendant had suffered six prior felony convictions rendering him ineligible for probation (§ 1203, subd. (e)(4)), three prison priors (§ 667.5, subd. (b)), and one prior strike conviction for arson (§ 1170.12, subd. (c)(1)).
All statutory references are to the Penal Code.
Defendant pled no contest to the possession of marijuana in jail charge (count 1) and admitted the strike prior and his ineligibility for probation. Pursuant to the terms of his plea agreement, count 2 (resisting arrest) and the remaining allegations were dismissed. The plea agreement also provided for a four-year maximum sentence and allowed defendant to bring a motion to strike his prior felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In defendant's Romero motion he argued the trial court should exercise its discretion to dismiss his prior strike because the offense (arson of two vehicles he owned with his wife) was not "the type of serious or violent reprehensible behavior which one would ordinarily associate with the 'three strikes law.' " Defendant asserted his current offense was relatively minor, his criminal record involved mostly low level offenses, and he has a significant alcohol problem and "an issue" with marijuana. Defendant also argued he was frequently transient due to his sex registrant status, but was employed and enrolled in junior college at the time of his arrest, and planning to continue his education.
The district attorney opposed the motion, contending it should be denied because possession of marijuana in jail is a serious offense and defendant had been violent and combative when the correctional officer removed him from his cell to book him. The district attorney emphasized defendant's prior strike was for arson, described his lengthy criminal history, including his convictions for hit and run, assault, driving under the influence, sexual battery, and numerous parole and probation violations, and argued there were no factors in mitigation.
At sentencing, the court heard argument from both parties before denying defendant's Romero motion. In explaining the reasons for its denial, the court stated: "[T]here are a number of problems. The recency of the strike. [¶] Mr. Houston's behavior as was expressed to me during the course of our discussions regarding this case. He became belligerent with the deputies, and the fact that he's performed so poorly on probation and parole. I can't say that he falls outside of the parameters or scheme of the three strikes law."
Defendant's arson conviction was in October 2012.
The trial court sentenced defendant to the low term of two years in prison for possessing marijuana in jail, doubled to four years for the prior strike conviction. Defendant timely appealed.
II. DISCUSSION
A. Harvey
Under section 1385, subdivision (a), a trial court has discretion to strike a prior strike conviction in furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to grant or deny a defendant's motion to strike a prior felony conviction, the court considers the nature and circumstances of the defendant's present felonies, prior serious and/or felony convictions, and the particulars of his background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.) Defendant contends the trial court in this case erred by considering conduct underlying his dismissed resisting arrest charge when it denied his Romero motion, in violation of the rule announced in Harvey, supra, 25 Cal.3d 754.
In Harvey, the California Supreme Court held that, in sentencing a defendant who has agreed to a plea bargain, the trial court may not consider evidence relating to a dismissed charge as an aggravating circumstance in support of an upper term on the remaining counts. (Harvey, supra, 25 Cal.3d at pp. 757-758.) Explaining the rationale for its holding, the court stated: "Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Id. at p. 758, italics added.) Though Harvey concerned a trial court's weighing of factors in aggravation in deciding whether to impose the upper term, it has since been extended to other sentencing contexts. (See, e.g., People v. Martin (2010) 51 Cal.4th 75, 80-82 [extending Harvey rule to facts used to impose conditions of probation]; In re T.C. (2009) 173 Cal.App.4th 837, 849 [noting § 1192.3, subd. (b) requires Harvey waiver before restitution can be ordered on counts dismissed under plea bargain].) Defendant argues this court likewise should conclude Harvey applies to Romero motions.
The California Supreme Court recently held a trial court may rely on facts underlying counts dismissed pursuant to a plea bargain to deny a Proposition 36 petition for recall of sentence where such facts establish a defendant is ineligible for resentencing under section 1170.12, subdivision (c)(2)(C)(iii) because the defendant was armed during the offense of conviction. (People v. Estrada (2017) 3 Cal.5th 661, 676.) That narrow holding has no application to the facts of this case.
By entering a negotiated plea agreement, defendant reasonably expected facts underlying the dismissed resisting arrest count would not be used by the trial court in imposing his sentence. (See People v. Bustamante (1992) 7 Cal.App.4th 722, 725 ["The Harvey rule is based on the reasonable expectations of the parties that the facts underlying the dismissed counts will not be considered against the defendant."].) When the trial court denied his Romero motion and doubled his term because of the strike prior, the result was undeniably an "adverse sentencing consequence." (See Harvey, supra, 25 Cal.3d at p. 758.)
Though we agree with defendant that Harvey likely applies in this case, we need not decide the issue. As both parties acknowledge, assuming the trial court erred in considering defendant's conduct underlying the dismissed resisting arrest charge, we review the prejudicial effect under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. Because we conclude any such error was harmless, we need not remand for resentencing.
When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Price (1991) 1 Cal.4th 324, 492, superseded on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1162, citing People v. Avalos (1984) 37 Cal.3d 216, 233.) Here, in addition to the facts related to the dismissed charge, the trial court relied on two other valid reasons for denying the Romero motion—the recency of defendant's strike and his poor performance on probation and parole. Defendant does not challenge those factors and they are well supported by the record. His prior strike for arson was only three years old, and defendant's criminal history reveals a recurring pattern of probation and parole violations, modifications, and revocations over the course of 25 years—a record of performance his probation officer termed "abysmal." In addition, defendant's criminal record included felony convictions for battery on a peace officer, sexual battery on an 11 year old, failure to report his address change as a sex offender, resisting a public officer, possession of a dangerous weapon, and arson, as well as 14 misdemeanor convictions. As the probation officer observed and defendant concedes, "For almost his entire adult life, the defendant has been on probation, parole or in custody."
We find unpersuasive defendant's argument there was significant mitigating evidence in favor of granting his Romero motion. Defendant repeatedly asserts his possession of marijuana was a "relatively minor" offense, but possessing a controlled substance in jail is a serious crime. (§ 4573.6 [possession of controlled substance in jail is a felony]; see § 1210, subd. (a) ["The term 'nonviolent drug possession offense' . . . does not include violations of Section 4573.6 . . . ."].) It also appears any mitigating impact based on the nature of the offense was reflected in his low term sentence. Although defendant presented some evidence of difficult life circumstances, including transiency, substance abuse, and medical issues, the probation officer observed that defendant "minimizes, dismisses and denies his [criminal] behavior" and "would like others to believe he is simply a victim of circumstance."
In view of the two strong, valid reasons expressly given by the trial court and defendant's lengthy record of criminal activity, it seems clear the court would have reached the same decision even had it not considered defendant's alleged belligerence with the deputies in jail. (See, e.g., People v. Leonard (2014) 228 Cal.App.4th 465, 503 [even if trial court improperly relied on two impermissible factors in denying Romero motion, any error was harmless because "other considerations—sufficient in themselves" supported denial].) We conclude any error was harmless. B. Abuse of Discretion
Defendant also contends the trial court abused its discretion in denying his Romero motion because he falls outside the spirit of the three strikes law "in part." We do not agree.
The three strikes law requires the trial court to impose specified increased punishment on a defendant convicted of a felony who has suffered one or more prior serious or violent felonies. (§ 1170.12, subds. (a), (b) & (c).) The purpose of the law is to provide increased punishment for recidivist offenders who, due to their criminal history for violent or serious felonies, have demonstrated that they are not rehabilitated nor deterred from further criminal activity as a result of their prior imprisonment. (People v. Davis (1997) 15 Cal.4th 1096, 1099; People v. Leng (1999) 71 Cal.App.4th 1, 14.)
Nevertheless, as discussed above, a trial court has discretion to strike a prior strike conviction in furtherance of justice. (Romero, supra, 13 Cal.4th at pp. 529-530.) A court's decision to grant or deny such a request is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
"Under that standard, a defendant must demonstrate the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310 (Myers).)
Here, the trial court "received and reviewed the probation officer's report and recommendation, Defendant's Romero motion, and the People's opposition thereto," and heard argument from both parties before rendering its decision. Though defendant again argues his current offense is "relatively minor" and his disadvantaged social background supported granting the motion, we presume the trial court considered those facts and concluded they did not outweigh the factors favoring denial. (Myers, supra, 69 Cal.App.4th at p. 310 [absent an affirmative record to the contrary, we presume the trial court properly considered and weighed all relevant factors].) Given defendant's extensive criminal record, his exceedingly poor performance on probation and parole, and the recency of his strike, defendant has not shown the trial court's decision was irrational or that he falls outside the spirit of the three strikes law. (See People v. Williams, supra, 17 Cal.4th at p. 161.)
" 'The striking of a prior serious felony conviction is not a routine matter. It is an extraordinary exercise of discretion, and is very much like setting aside a judgment of conviction after trial.' " (People v. McGlothin (1998) 67 Cal.App.4th 468, 474; see Carmony, supra, 33 Cal.4th at p. 378 [circumstances must be extraordinary to deem defendant outside the spirit of the three strikes law].) Under the circumstances of this case, the trial court's decision was not an abuse of discretion. C. Cruel or Unusual Punishment
Defendant further contends his sentence violates the Eight Amendment and article I of the California Constitution, but does not develop or support his argument beyond reasserting the trial court abused its discretion because he falls outside the spirit of the three strikes law, a claim we have rejected for the reasons stated above.
Moreover, assuming for purposes of argument he has not forfeited the claim, defendant's conclusory contention his four-year sentence for possession of marijuana in jail is "disproportionate" lacks merit. The Eighth Amendment prohibits imposition of a sentence " 'that is grossly disproportionate to the severity of the crime,' " but in a noncapital context, successful challenges are " 'exceedingly rare.' " (Ewing v. California (2003) 538 U.S. 11, 21 [in light of antirecidivist purpose of California's three strikes law, 25-year-to-life sentence for stealing three golf clubs worth a total of $1,200 was not cruel and unusual].) A sentence may violate the California Constitution's prohibition on cruel or unusual punishment "if . . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted, superseded on other grounds as stated in People v. Caddick (1984) 160 Cal.App.3d 46, 51.) Considering defendant's recidivist history and the nature of his current offense, we conclude his four-year sentence for possessing marijuana in jail does not offend either the state or federal prohibition against cruel or unusual punishment. D. Pitchess Motion
Constitutional claims, like other objections, must be raised in the trial court to preserve them for appeal. (See People v. Williams (1997) 16 Cal.4th 153, 250.)
Before trial, defendant filed a Pitchess motion seeking discovery of information related to misconduct by the correctional officer who used physical force on him in jail. Defendant contends the trial court's denial of his Pitchess motion prevented him from fairly litigating his Romero motion because the discovery could have undermined the court's finding he was belligerent. Because we have determined the trial court's reliance on the dismissed resisting arrest charge was harmless error, however, we need not address defendant's Pitchess claims.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.