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People v. Hubbard

Court of Appeals of California, Fifth District.
Nov 3, 2003
No. F041634 (Cal. Ct. App. Nov. 3, 2003)

Opinion

F041634.

11-3-2003

THE PEOPLE, Plaintiff and Respondent, v. LOREN ELZIE HUBBARD, Defendant and Appellant.

Matthew D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Janis Shank McLean and Jennifer M. Runte, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT*

Appellant was convicted, after a no contest plea, of violating Health and Safety Code section 11377, subdivision (a). At the time of his plea, he also admitted having suffered a conviction in 1992 for a serious felony—to wit, assault with a deadly weapon, in violation of Penal Code[] section 245, subdivision (a)(1), charged pursuant to section 667, subdivision (e). In return for appellants plea and admission, two misdemeanor charges pursuant to Health and Safety Code sections 11550, subdivision (a), and 11364 were dismissed and two prison priors alleged pursuant to section 667.5, subdivision (b) were stricken. Appellant was promised a sentence of no more than 32 months, which would be the lower term doubled because of the prior serious felony conviction.

Further statutory references are to the Penal Code unless otherwise indicated.

Appellant made a Romero[] motion, it was denied, and the court sentenced him to the lower term, doubled, for a total term of 32 months in state prison.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

Appellant contends the trial court erred in denying his Romero motion. We will affirm the conviction and sentence.

FACTS

On February 25, 2002, Kern County Sheriffs deputies conducted a probation search at appellants residence in Bakersfield.[] During the course of the search, the deputies discovered various items of drug paraphernalia, four methadone tablets, and 0.33 grams of methamphetamine. Appellant and three companions were arrested.

According to the probation report in the present case, appellant was on probation in four misdemeanor cases on the date of his arrest.

DISCUSSION

Romero motion

Appellant relies on four factors in arguing his Romero motion was improperly denied: the fact that the current offense was nonviolent and involved only the possession of a small amount of a controlled substance; a contention that his prior conviction was less serious than other "strike" convictions; the age of his prior serious felony conviction; and a criminal history which, he contends, takes him outside the spirit of the three strikes law. The court will address these factors seriatim.

First, however, it is necessary to state the applicable law. In Romero, the court held that pursuant to section 1385, subdivision (a), "in furtherance of justice," the trial court may dismiss an allegation or vacate a finding that a prior serious or violent felony conviction qualifies as a strike under the three strikes law. On appeal, we review the courts ruling under the abuse of discretion standard. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.)

In People v. Williams (1998) 17 Cal.4th 148, 161, the court elaborated on the trial and reviewing courts task:

"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, `in furtherance of justice pursuant to Penal Code section 1385(a), 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."

The appellate court, however, must defer to a proper exercise of sentencing discretion by the trial court:

"A trial courts decision to strike prior felony convictions is subject to review under the `deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial courts 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 courts ruling, even if we might have ruled differently in the first instance." (People v. Romero (2002) 99 Cal.App.4th 1418, 1434, quoting People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)

We proceed to the factors appellant asks this court to consider. First are the circumstances of the current offense, possession of 0.33 grams of methamphetamine. Respondent does not dispute the assertion that this is a factor which should weigh in favor of appellant in this courts review of the trial courts exercise of discretion. It is, however, only one of several factors which the court must consider. (People v. Romero, supra, 99 Cal.App.4th at p. 1434.)

Appellant asks this court also to consider the nature and circumstances of his prior serious felony conviction for assault with a deadly weapon in violation of section 245, subdivision (a)(1). The record reflects the following regarding the prior strike. Appellant was convicted on January 14, 1992, both for the assault with a deadly weapon and for violating section 10851 of the Vehicle Code. At the preliminary hearing, it was shown that on October 10, 1991, the victim, from inside a restaurant, saw a person breaking into his vehicle. The victim went to the vehicle, to stop the theft, and appellant stepped on the accelerator, coming within six inches of hitting the victim as the car pulled away.

Appellant contends that had his assault case been adjudicated after the effective date of the three strikes law on March 7, 1994, the charge would have been plea bargained down to a nonstrike offense. This, of course, is pure speculation. It is clear that the three strikes law does apply when the prior conviction occurred before its effective date. (Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302.)

Appellant also asks that the court consider the age of his strike, which occurred approximately 10 years before his conviction in the present case. The age of the strike, however, is a factor which leads directly to a consideration of appellants overall criminal record. In the 10 years between convictions, appellant suffered approximately a dozen misdemeanor convictions in eight separate cases. These included not just drug offenses but reckless driving (Veh. Code, § 23103, subd. (a)); vandalism (& sect; 594) with restitution set at $1,708.26, which remained owing at the time of the preparation of the probation report; resisting arrest (§ 148); battery (§ 243, subd. (a)); and a conviction for corporal injury to a cohabitant (§ 273.5, subd. (a)), for which appellant was placed on probation with 90 days in jail and required counseling—a requirement which, according to the probation report here, he violated several times. Prior to appellants strike conviction, he had suffered one felony conviction, for escape from the California Youth Authority (Welf. & Inst. Code, § 1768.7, subd. (a)), for which he had been sentenced to prison, plus approximately 10 misdemeanor convictions in eight cases. Appellant has been sentenced to prison twice and has violated his parole on numerous occasions. He was on misdemeanor probation in four cases when he committed the current offense. Finally, he failed to appear in this case, after being released pending sentencing.

Little more need be said. We agree with the trial court that appellants criminal history places him squarely within the spirit of the three strikes law. No abuse of discretion is shown.

DISPOSITION

The judgment of the trial court is affirmed.


Summaries of

People v. Hubbard

Court of Appeals of California, Fifth District.
Nov 3, 2003
No. F041634 (Cal. Ct. App. Nov. 3, 2003)
Case details for

People v. Hubbard

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LOREN ELZIE HUBBARD, Defendant…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 3, 2003

Citations

No. F041634 (Cal. Ct. App. Nov. 3, 2003)