Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD190791, Melinda J. Lasater, Judge.
McCONNELL, P. J.
A jury convicted Derrick Humphrey of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). In a separate proceeding, Humphrey admitted a 24 year-old burglary prior strike conviction, two prior drug convictions (Health & Saf. Code, § 11370.2), and two prior prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced Humphrey to nine years in state prison, which included the low term of three years for the sales count, doubled for the strike prior, the low term of three years for the possession for sale count, stayed, and the consecutive sentence of three years for a prior drug conviction enhancement. The court struck both prison priors. Humphrey contends the trial court erred in refusing to allow him to change his plea and accept the prosecution's plea bargain offer. Additionally, Humphrey contends the trial court erred in denying his motion to strike his strike prior. We affirm the judgment.
FACTS
On May 5, 2005, a police officer dressed in street clothes and wearing a one-way audio transmission wire approached Humphrey and asked for a "2-0," street slang for $20 worth of narcotics. Humphrey placed an off-white substance on the seat of a bicycle next to him and the officer picked up the substance and handed Humphrey $20. The officer then gave the pre-arranged "bust" signal and a uniformed officer arrested Humphrey for selling cocaine to an undercover officer. The police later determined the substance to be .22 grams of cocaine base.
DISCUSSION
A. The trial court properly refused to enforce a plea bargain the prosecution withdrew.
Humphrey contends the trial court erred in refusing to allow him to change his plea and accept the prosecution's plea bargain offer.
"The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court." (People v. Orin (1975) 13 Cal.3d 937, 942.) Pursuant to this process, a plea bargain is not binding on any party until the defendant actually changes his plea in return for a reciprocal benefit, generally less severe punishment. (People v. Rhoden (1999) 75 Cal.App.4th 1346, 1351.) Such leniency with disposition of the charges "is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the People's acceptance of a plea to a lesser offense than that charged, either in degree [citations] or kind [citation], or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information." (People v. Orin, supra, at p. 942.) Moreover, "judicial approval is an essential condition precedent to the effectiveness of the 'bargain' worked out by the defense and prosecution." (People v. Anderson (1982) 129 Cal.App.3d 491, 494.)
If the prosecution withdraws its offer before the defendant pleads guilty, the court lacks the authority to impose an earlier bargaining position. (People v. Anderson, supra, 129 Cal.App.3d at p. 495.) Even if the defendant accepts the prosecution's plea bargain, the prosecution may withdraw it before the court accepts it, unless there has been detrimental reliance. (In re Alvernaz (1992) 2 Cal.4th 924, 943.)
Here, the record shows Humphrey never reached a plea deal with the prosecution or with the court. After various attempts to negotiate a deal and Humphrey's repeated wavering, the prosecution offered "for the next ten seconds" to let Humphrey plead to either sales or the possession for sales count, with one three-year drug prior, admit actual guilt, and undergo immediate sentencing. Humphrey wavered again; although he indicated he wanted to plead, he rejected the condition of being sentenced immediately. The prosecutor withdrew the offer and told the court to call in the jury.
The prosecution withdrew its offer before Humphrey actually pleaded guilty. Even assuming Humphrey had accepted the offer, the prosecution still had the right to withdraw its offer, which it did when it asked the court to call in the jury. Also, Humphrey has shown no detrimental reliance. The court did not abuse its discretion.
B. The trial court properly refused to strike Humphrey's strike prior.
Humphrey argues the trial court abused its discretion under Penal Code section 1385, subdivision (a), which permits a trial judge "either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, [to] order an action to be dismissed." In People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 529-530, the court explained that the exercise of discretion under that subdivision is limited by the " 'amorphous' " concept of "furtherance of justice," which requires consideration both of the constitutional rights of the defendant and the interests of society.
Ultimately, the standard for dismissing a strike in furtherance of justice is whether the defendant is outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 159-161 (Williams).) In Williams, the California Supreme Court explained that "in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . 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 scheme's 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." (Id. at p. 161).
A trial court's decision whether to strike a strike prior is reviewed under the abuse of discretion standard. (Romero, supra, 13 Cal.4th at p. 530.) "This standard is deferential. [Citations.] But it is not empty . . . [I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (Williams, supra, 17 Cal.4th at p. 162). A trial court abuses its discretion only in limited circumstances, including when it was not aware of its discretion to dismiss, when it considered impermissible factors in declining to dismiss, or when the sentencing norms established by the Three Strikes law, as a matter of law, produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case. (People v. Carmony (2004) 33 Cal.4th 367, 378). "The court also acts improperly if guided solely by its personal belief regarding the effect a particular sentencing law may have on defendant, while ignoring . . . other individualized considerations." (People v. Orabuena (2004) 116 Cal.App.4th 84, 99.)
A court does not abuse its discretion in refusing to strike a strike prior merely because reasonable minds might disagree on the issue. (See People v. Myers (1999) 69 Cal.App.4th 305, 310). "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 . . . ' [citation omitted], the circumstances where no reasonable person could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony, supra, 33 Cal.4th at p. 378, italics added.)
Here, Humphrey argues the court's denial of his motion to strike was improperly based on a self-imposed "policy" rather than on his individualized circumstances. During the sentencing hearing, defense counsel noted that Humphrey's strike was a burglary conviction sustained in 1982, Humphrey had remained crime free for 16 years after serving his 1982 conviction, and his other two prior prison terms were drug-related. Defense counsel argued the court ought to strike Humphrey's strike like two other courts had done because the strike was so old. The prosecution disagreed, arguing Humphrey's strike should not be stricken a third time because he had been given multiple opportunities to reform in the past.
Before the commencement of trial, the court commented, "I don't believe in, except in extremely unusual circumstances, striking a strike more than once." Then, during the sentencing hearing, the court noted Humphrey's multiple prior convictions and active criminal record. The court suggested Humphrey needs to serve a longer sentence to understand he cannot keep selling drugs and doubted whether he could stay clean in the future. Plus, the court mentioned Humphrey is generally uncooperative. In denying Humphrey's motion to strike the strike prior, the court stated, "[T]o do it a third time is a disservice on many levels." The court reasoned that "by refusing to strike a strike [Humphrey] is being held accountable for his earlier offenses." After finding that it would be inappropriate to strike Humphrey's strike, however, the court stated it would be unreasonable for Humphrey to serve the probation officer's recommended sentence of 17 years, and tailored a sentence fitting Humphrey's circumstances.
The trial court did not abuse its discretion in denying Humphrey's motion to strike the prior strike. Its decision was reasonably based on considerations of Humphrey's background and criminal history. Also, because this case does not present extraordinary circumstances by which Humphrey could be deemed outside the scheme of the Three Strikes law, the court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., McINTYRE, J.