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People v. Ledune

California Court of Appeals, Second District, Sixth Division
Mar 24, 2008
No. B198869 (Cal. Ct. App. Mar. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY BRIAN LEDUNE, Defendant and Appellant. B198869 California Court of Appeal, Second District, Sixth Division March 24, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Superior Court County of Santa Barbara, Joseph Lodge, Judge, Super. Ct. No. 1209867

Barbara Ann Landan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

COFFEE, J.

Appellant Timothy Brian Ledune appeals from his sentence of 11 years in state prison following his no contest plea to felony transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)), misdemeanor driving while under the influence (Veh. Code, § 23152, subd. (a)), misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), and misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Appellant admitted he had suffered three prior prison terms (Pen. Code, § 667.5, subd. (b)), one of which was for a serious felony (Pen. Code, §§ 664/211, 667, subd. (e)(1)). The trial court sentenced appellant to 11 years in state prison, including 8 years for the felony count (the midterm doubled for the second strike offense) and 3 one-year terms for the prior prison terms.

Appellant challenges the trial court's refusal to strike his prior conviction for attempted robbery. We affirm.

FACTS

One month after release from prison, appellant drove his wife's car 40 to 45 miles per hour in a 25 mile per hour zone in Montecito while under the influence of cocaine. Sheriff's deputies activated their siren and the vehicle did not initially yield. At the time, appellant was on parole and his driver's license was suspended. The deputies found a glass pipe with cocaine residue and a syringe in the car. During booking at the county jail, an officer found a rock of cocaine in appellant's sock.

Appellant had an extensive criminal history. In 1987, at the age of 20, he was convicted of false identification to a police officer. (Pen. Code, § 148.9.) A charge for possession of a hypodermic needle was dismissed. (Bus. & Prof. Code, § 4149.) Appellant was granted 3 years probation, with 30 days in jail. Two months later, he was convicted of possession of a hypodermic needle. (Bus. & Prof. Code, § 4149.) In January of 1988 he was granted 3 years probation, with 30 days in jail.

Later in 1988, appellant was convicted of knowingly receiving stolen property. (Pen. Code, § 496.) A charge for possession of a bad check was dismissed. (Former Pen. Code, § 475a.) Appellant was granted 3 years probation. In the same month, he was convicted of prostitution. (Pen. Code, § 647, subd. (b).) He was granted 3 years probation, with 7 days in jail. One month after that, appellant was convicted again of prostitution. (Ibid.) He was granted 3 years probation with 60 days in jail

Two months later, appellant committed burglary. (Pen. Code, § 459.) He was granted 2 years probation, with 120 days in jail. One month later, in August of 1988, he was convicted of felony possession of a controlled substance. (Health & Saf. Code, § 11350.) Charges for being under the influence of a controlled substance, trespassing, possession of a hypodermic needle and possession of drugs or alcohol in prison were dismissed. (Health & Saf. Code, § 11550; Bus. & Prof. Code, § 4149; Pen. Code, §§ 602 & 4573.6.) Appellant was granted 3 years probation with 90 days in jail. In October of 1988 appellant was convicted of forcible entry, with property damage, and defrauding an innkeeper (Pen. Code §§ 603, 537, subd. (a)(1)). A charge for false identification to a peace officer was dismissed (Pen. Code, § 148.9), and he was sentenced to 10 days in jail. In August of 1989, appellant was convicted of petty theft and false identification to a peace officer. (Pen. Code, §§ 488 & 148.9.) He was granted 3 years probation, with 30 days in jail. In September of 1989, after a second probation violation, appellant was sentenced to 16 months in prison for the August 1988 felony possession conviction. He was paroled in March of 1990.

In December of 1990, appellant was convicted of driving under the influence. (Veh. Code, § 23152, subd. (a).) He was granted 3 years summary probation. In June of 1992 he was convicted in Arizona of felony possession of narcotic drugs and granted 3 years probation, which he violated. His probation was reinstated. In September of 1992, he was convicted in Arizona for five counts of shoplifting and was granted 3 years probation, with 180 days in jail. Charges for failure to appear and escape were dismissed. In September of 1995, he was convicted of misdemeanor driving under the influence. (Veh. Code, § 23152, subd. (a).) He was granted three years summary probation, which he violated twice. In July of 1997, appellant was convicted of felony forgery. (Pen. Code, § 470.) The court sentenced him to 4 years in prison, suspended, and granted 5 years probation, with 13 days in jail. He was ordered to participate in a residential treatment program.

In December of 1999, appellant was convicted of felony attempted robbery, felony using another person's identification to get credit, felony making or passing a fictitious check, and felony possession of forged notes. (Pen. Code, §§ 664/211, 530.5, 476, & 475, subd. (b).) He was sentenced to 2 years in prison. His probation for the felony forgery conviction was revoked, and his 4 year prison term for that charge was ordered to be served concurrently. He violated parole twice.

In January of 2003, appellant was convicted of felony possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) He was granted 3 years probation, with 120 days jail and outpatient drug treatment. He violated probation by failing to attend drug treatment and testing positive for cocaine use. His probation was reinstated. In April of 2004, he was convicted of felony possession of a controlled substance (ibid.) and was granted 3 years probation, with 31 days in jail, and he was required to attend a clean and sober program. Less than three months later, he was convicted of misdemeanor unauthorized possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) The court dismissed a charge for prostitution in the interest of justice. His probation for the felony possession conviction was revoked and in July of 2004 he was sentenced to 4 years in state prison. The current offense was committed while appellant was on parole.

DISCUSSION

In cases brought under the Three Strikes law (Pen. Code, § 667, subds. (b)-(i)), the trial court may reduce the defendant's sentence by striking a prior felony allegation. (Pen. Code, § 1385, subd. (a); People v. Romero (1996) 13 Cal.4th 497.) The trial court's discretion to strike a prior felony in furtherance of justice is limited. (Id. at p. 530.) The court 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." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the trial court's decision for abuse of discretion. (Id. at p. 162.)

The trial court acted within its discretion when it concluded that appellant is not outside the spirit of the Three Strikes law. Appellant's present and prior felony convictions, his lengthy criminal background, his character and prospects, his lack of success in drug treatment programs, and his many probation violations all suggest that he should not be treated as though he had not previously been convicted of a serious felony.

We affirm the judgment.

We concur: GILBERT, P.J., PERREN, J.


Summaries of

People v. Ledune

California Court of Appeals, Second District, Sixth Division
Mar 24, 2008
No. B198869 (Cal. Ct. App. Mar. 24, 2008)
Case details for

People v. Ledune

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY BRIAN LEDUNE, Defendant…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Mar 24, 2008

Citations

No. B198869 (Cal. Ct. App. Mar. 24, 2008)