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People v. Jones

California Court of Appeals, Third District, Sacramento
Apr 20, 2009
No. C058982 (Cal. Ct. App. Apr. 20, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. IVAN JONES, Defendant and Appellant. C058982 California Court of Appeal, Third District, Sacramento April 20, 2009

NOT TO BE PUBLISHED

Super. Ct. Nos. 06F06858,07F07196

ROBIE, J.

Defendant Ivan Jones contends the trial court abused its discretion in failing to strike one of the two three-year enhancements under subdivision (a) of Health and Safety Code section 11370.2 (section 11370.2(a)) to which he was subject in connection with his conviction for selling cocaine base. We disagree.

FACTUAL AND PROCEDURAL BACKGROUND

A jury found defendant guilty of selling cocaine base to an undercover officer in July 2007. The trial court found defendant had six prior felony convictions: two convictions for sale of a controlled substance in April 1986, three convictions for possession of a controlled substance (in May 1994, February 1995, and December 2000), and one conviction for assault with a deadly weapon in December 1997.

Under section 11370.2(a), defendant was subject to a “full, separate, and consecutive three-year term” for each of his two prior convictions for sale of a controlled substance. At the sentencing hearing in May 2008, however, defense counsel asked the court to consider imposing only one of the section 11370.2(a) enhancements because the prior sales convictions were “extremely old”; the underlying offenses “happened a day apart”; the offenses were charged in the same complaint and information; and defendant pled to both charges and received concurrent sentences on them. In arguing for the court to strike other enhancements as well, defense counsel asserted that defendant was, “for lack of a better term, a petty crook” with “drug issues.” Counsel suggested an aggregate term of eight years, which was admittedly “a substantial deviation from what probation recommends,” but which counsel contended would be “much more in line with a punishment for the conduct of handing a man a $30 piece of rock cocaine.”

The probation officer recommended a term of 15 years.

The prosecutor opposed the court striking one of the section 11370.2(a) enhancements because defendant was “no petty crook” but instead had “exhibited... an extensive history, of serious offenses dating back from 1981 that not only included drug offenses, but includes felony [assault with a deadly weapon] and misdemeanor [battery] back from 1998, 1999.” The prosecutor then summarized defendant’s criminal history in greater detail and argued that “defendant has exhibited a clear history and pattern of failing to obey the law.” The prosecutor argued that the court could not “just look at the remoteness” of the prior sales convictions, but had “to look [at] whether the defendant had been free of crime for all this time, whether the defendant is rehabilitated, whether the defendant has done something productive with his life, when, in fact, he has not.”

At this point, the court interrupted the prosecutor and asked for guidance “to the authority telling me the factors I must consider in striking” a prior conviction. The prosecutor agreed with the court that subdivision (a) of Penal Code section 1385 was the governing statute, but could not direct the court to any “specific case law... as to what factors should be considered.” The court indicated it was considering the fact that the two prior sales convictions were based on offenses that occurred only a day apart and for which defendant received concurrent sentences. The prosecutor argued that “[i]f defendant did [not] show any other signs of this kind of behavior, then I would submit to the Court, and I wouldn’t argue against that. But the defendant has clearly shown that he’s done that same act again.... [¶]... [¶] The two incidents that are a day apart are not some anomaly where the defendant just happened to have a lapse in judgment for the period of 24 hours, and we should have considered that as one offense for the purposes of sentencing. [¶] This is a continuous pattern. It just happened that the defendant was caught two days in a row doing the same thing, when he clearly has been dealing with drugs, has possession of drugs for all this time, and this is not just some remote four hours where he just, as I said, had a lapse of judgment.”

“The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.” (Pen. Code, § 1385, subd. (a).)

On the court’s inquiry, defense counsel explained that the prior offenses “were buy-walk operations” and “with the first incident, [defendant] was allowed to leave, and he was actually arrested after selling to the very same officers the second time.” The prosecutor argued that this fact was not mitigating.

In closing, defense counsel acknowledged that defendant had “a long history of drug-related offenses,” but because the only prior sales convictions had occurred 21 years before the current offense and had “occurred a day apart on buy-walk operations,” “that’s substantial enough in and of itself for the Court to strike one of the priors.”

The court thereafter declined to strike either of the section 11370.2(a) enhancements “primarily because of the lengthy history of criminal conduct and behavior.” Accordingly, the court imposed an aggregate term of 15 years, 8 months (which included a consecutive 8-month term on a violation of probation in another case).

DISCUSSION

On appeal, defendant contends the trial court abused its discretion in refusing to strike one of the section 11370.2(a) enhancements because “the court stated it did not know what factors it needed to consider when it decided if one of the enhancements should be stricken” “[a]nd when the court imposed sentence, it merely cited [his] prior criminal record to support its decision to impose two section 11370.2 enhancements and refusal to strike one.” We disagree.

Under Penal Code section 1385, a court has discretion to strike an enhancement in the furtherance of justice. (People v. Meloney (2003) 30 Cal.4th 1145, 1155.) “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.] 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.’”’ [Citation.] 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.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)

Defendant argues that “[a] decision to strike a prior is supposed to be an individualized one based on the particular aspects of the current offenses for which the defendant has been convicted and on the defendant’s own history and personal circumstances.” He further contends that because “the court was unclear as to what factors it should consider when it decided whether to strike one of the section 11370.2 priors,” “the court relied solely on [his] prior criminal history to support its decision.” According to defendant, “The court’s ruling demonstrates its failure to rule based on a consideration of all the facts, and its refusal to strike one of the prior drug sale convictions constituted an abuse of discretion.” Defendant asks us to “reverse his sentence and remand this case to the trial court for reconsideration of his motion to strike.”

Technically, defendant did not make a motion to strike because no such motion is permitted by Penal Code section 1385, which authorizes a dismissal in the furtherance of justice only on the court’s “own motion or upon the application of the prosecuting attorney.” (Pen. Code, § 1385, subd. (a).) Thus, we interpret defendant’s request as a request for remand so that the trial court may reconsider its own motion to strike one of the section 11370.2(a) enhancements.

We reject the premise underlying defendant’s argument, which is that the trial court abused its discretion because it “relied solely on [his] prior criminal history to support its decision” not to strike one of the section 11370.2(a) enhancements. The trial court did not say it was relying “solely” on defendant’s criminal history; it said it was relying “primarily” on defendant’s criminal history. This statement necessarily implies that the court considered other factors as well, which fits with the court’s express statement to the prosecutor that it was “considering” the fact that the two prior sales convictions were based on offenses that occurred only a day apart and for which defendant received concurrent sentences -- which was the primary basis for defense counsel’s suggestion that the court consider striking one of the prior sales convictions.

Given our conclusion that the trial court did not “fail[] to rule based on a consideration of all the facts,” we could end our opinion here, since the rejection of defendant’s argument on this point deprives us of any basis for remanding the matter to the trial court for reconsideration -- the only relief defendant has sought. Rather than do that, however, we will assume for the sake of argument that defendant is also asserting that the trial court abused its discretion based on “all the facts,” but we reject defendant’s challenge to his sentence on that argument as well.

It is true, as defendant emphasizes, that his two prior sales convictions were 20 years old and were based on offenses that occurred a day apart. But it is also true that he had a substantial criminal record dating back 25 years -- more than one-half of his lifetime -- that included both drug and nondrug offenses. His prior crimes included assault and resisting an officer in 1981; petty theft in 1982; battery, possession of a dangerous weapon, and petty theft with a prior in 1985; two counts of selling a controlled substance (cocaine) in 1986; possession of a controlled substance (cocaine) in 1994; possession of a controlled substance (cocaine) in 1995; assault with a deadly weapon in 1997; battery against a person with whom defendant had a previous dating relationship in 1999; possession of a controlled substance in 2000; and possession of a controlled substance (rock cocaine) in 2006.

The probation report also showed that defendant first went to prison in 1987 for a violation of probation relating to his prior sales convictions. He was first paroled in March 1989 and was returned to custody eight times for parole violations before he was finally discharged. He went back to prison in 1995 on his 1995 conviction for possession of a controlled substance and a violation of probation on his 1994 conviction of the same offense. He was returned to custody three times for parole violations after being released. In 1998, he went to prison again for his 1997 assault conviction and again had three parole violations. In 2001, he went to prison for the 2000 possession conviction (with a prison prior) and was later returned to custody nine times for parole violations.

Construed in the light most favorable to the trial court’s decision, the facts show that defendant was already well-established as a criminal when he was first caught selling cocaine in 1986. His criminal conduct -- including criminal conduct involving controlled substances -- continued over the next 20 years, up until he was once again caught selling cocaine in 2007. Under these circumstances, the trial court’s decision not to strike one of the section 11370.2(a) enhancements was not so irrational or arbitrary that no reasonable person could agree with it.

It is true the purpose of a section 11370.2(a) enhancement is “‘to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.’” (People v. Garcia (1989) 211 Cal.App.3d 1096, 1101.) But we disagree with defendant’s assertion that he “is not among those people specifically targeted by the statute.” On the facts before it, the trial court could have reasonably concluded defendant had regularly engaged in the business of selling controlled substances at various times over a period of 20 years, if not over the entire 20-year period. Indeed, the fact that defendant was caught in 1986 selling cocaine on two consecutive days could reasonably be deemed to show that his involvement in the sale of drugs was not simply occasional, aberrant behavior but instead was something much more regular -- particularly given that he was caught doing it again 20 years later.

Even if we were to believe, as defendant suggests, that his sales convictions tend to show he was “a habitual drug user who sold... drugs” only occasionally “to support his own drug addiction,” rather than a regular drug dealer, we could not overturn the trial court’s decision on that basis, since we are neither authorized nor warranted in substituting our judgment for that of the trial court. As long as the trial court’s decision was reasonable, it does not matter whether we or any other court might have reached a different decision. And because defendant has failed to show that the trial court’s decision not to strike one of the section 11370.2(a) enhancements was unreasonable based on everything that was before the court, he has failed to show an abuse of discretion in that decision.

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.


Summaries of

People v. Jones

California Court of Appeals, Third District, Sacramento
Apr 20, 2009
No. C058982 (Cal. Ct. App. Apr. 20, 2009)
Case details for

People v. Jones

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. IVAN JONES, Defendant and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 20, 2009

Citations

No. C058982 (Cal. Ct. App. Apr. 20, 2009)