Opinion
F074759
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCUS GENE JORDAN, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR048522B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Meehan, J.
-ooOoo-
Defendant Marcus Gene Jordan pled no contest to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). He admitted a gang enhancement (§ 186.22, subd. (b)(1)(A)), a prior felony conviction allegation within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior serious felony conviction allegation (§ 667, subd. (a)). The trial court denied defendant's Romero motion to strike the prior felony conviction allegation, and it sentenced him to 12 years in prison: two years, doubled pursuant to the Three Strikes law, plus three years for the gang enhancement and five years for the prior serious felony enhancement.
All statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, defendant contends the trial court abused its discretion by refusing to strike his prior felony conviction allegation. We disagree and affirm.
DISCUSSION
"[A] 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." (§ 1385, subd. (a).) This provision "permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law." (Romero, supra, 13 Cal.4th at pp. 529-530; accord, People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).)
A defendant's request for this type of leniency is commonly referred to as a "Romero motion," although defendants do not actually have a right to make motions under section 1385, subdivision (a). (People v. Carmony (2004) 33 Cal.4th 367, 375, 379 (Carmony).) --------
" 'A court's discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with ... section 1385[, subdivision] (a).' " (Williams, supra, 17 Cal.4th at p. 158.) The Three Strikes law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 ["a primary purpose of the Three Strikes law was to restrict judicial discretion"].) The Three Strikes law establishes " 'a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,' " unless the sentencing court finds a reason for making an exception to this rule. (Carmony, supra, 33 Cal.4th at p. 377.) There are "stringent standards that sentencing courts must follow in order to find such an exception." (Ibid.) In order to strike a prior felony conviction allegation, "the court in question must consider whether, in light of the nature and circumstances of [the defendant's] 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." (Williams, at p. 161.)
A defendant bears the burden of clearly showing the trial court's decision not to strike a prior felony conviction allegation was arbitrary or irrational. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, 33 Cal.4th at pp. 376-377.) "[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce [] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.] [¶] But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] ... 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 ... manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Id. at p. 378.)
In this case, defense counsel argued that defendant's current offense was not violent, he committed the crime because of substance abuse and gang interaction, and he was an excellent candidate for drug abuse treatment. Counsel addressed other factors, and also argued that defendant had endured miscarriages of justice by serving prior time he should not have served.
The prosecution responded by detailing defendant's prior criminal history since 2001, which included seven felonies (two "strike" priors) and two misdemeanors.
The court denied the motion, stating:
"All right. The defendant's prior serious felony that's approximately seven years ago, that time he was convicted of a felony violation of Section 245, subdivision (a)(1) of the Penal Code, with a special allegation pursuant to section 12022.7, subdivision (b), of the Penal Code. And a violation of Section 186.22, subdivision (a), of the Penal Code. And a violation of Section 4573.5, of the Penal Code. The defendant was sentenced to 11 years['] State Prison.
"In 2014, not long after his release from prison, he was convicted of a misdemeanor violation of Section 148, subdivision (a)(1), of the Penal Code. Approximately a month later he suffered a parole violation. Later that same year, the defendant committed the acts for which he has now pled guilty in this case. There's been no substantial break in custody since the defendant was convicted of his prior serious felony.
"Moreover, the Court does not find that the parameters of his plea bargain will result in a disproportionate sentence. The Court would note that Dr. Taylor found no depressive disorder and no severe mental illness.
"Given the nature and the circumstances of the defendant's present felony and prior serious felony conviction, the defendant's entire criminal history, including his conviction subsequent to the serious felony, his background, character and lack of serious prospects, the Court believes that it would be an impossible stretch to conclude that the defendant is deemed outside the Three Strikes Law. For those reasons, his motion to strike the serious felony is denied."
On this record, we cannot call the trial court's denial of the motion an abuse of discretion, even if reasonable people might differ as to whether defendant's criminal history brought him within the spirit of the Three Strikes scheme or whether he deserved another chance at rehabilitation. This case was not extraordinary, and the court's decision was not arbitrary, capricious, or patently absurd.
DISPOSITION
The judgment is affirmed.