Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Super. Ct. No. 2006021190 of Ventura Kevin J. McGee, Judge
Robert D. Peterson, 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, Steven D. Mathews, Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
David Proctor Mark appeals the judgment following his no contest plea to gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). He also admitted leaving the scene of the accident after he committed the offense (Veh. Code, § 20001, subd. (c)), and that he had a prior serious felony conviction that qualified as a strike (§§ 667, subds. (a), (c)(1), (e)(1), 1170.12, subds. (a)(1), (c)(1)). He was sentenced to a total term of 18 years in state prison, consisting of the low term of four years doubled for the strike prior, plus five years for the prior serious felony, plus five years for the Vehicle Code section 20001, subdivision (c) allegation. He contends the trial court abused its discretion in refusing to strike his prior felony conviction pursuant to section 1385. We affirm.
All further undesignated statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On June 3, 2006, 19-month-old Alex Hurd died as the result of injuries suffered when his parents' minivan was struck by Mark's vehicle at the intersection of Glenbrook and Las Posas Roads in Camarillo. Mark fled the scene of the accident and drove to a nearby residence. A witness followed him and called 911. The police arrived shortly thereafter and arrested Mark. Approximately two hours after the accident, Mark had a blood alcohol level of 0.21 percent.
DISCUSSION
Pursuant to his plea, Mark admitted that he was convicted of first degree burglary (§ 459) in 1994, and that the crime qualified as a strike. Prior to sentencing, Mark moved to strike the prior conviction pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the motion, reasoning that the burglary and Mark's numerous other prior convictions demonstrated that "[h]is substance abuse problem continues to create circumstances which causes his return to the criminal justice system." Mark contends the court abused its discretion in denying the motion. We disagree.
Trial courts have limited discretion under section 1385 to strike prior convictions in three strike cases. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531.) 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 court's ruling under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)
The court did not abuse its discretion in refusing to strike Mark's prior strike conviction. The probation report reflects Mark's numerous drug and alcohol related prior convictions in addition to the first degree burglary; sale of marijuana in 1987; possession of a controlled substance in 1987 and 1989; driving with a blood alcohol level above .08 percent in 1997; and being under the influence of a controlled substance in 2003. While Mark asserts that his prior burglary conviction did not involve alcohol or drugs, the court recognized: "It is common knowledge that persons who engage in residential burglaries and other theft-related offenses often do so for the purposes of securing money and property in order to finance their drug habit, and I have very little doubt that that's what was going on when Mr. Mark committed the strike offense in January 1994."
Moreover, the trial court need not have found the burglary to have been drug or alcohol related to reach its conclusions. The court also noted Mark's lengthy criminal record and his ongoing difficulties with alcohol and drugs, including a 1997 conviction for driving under the influence of alcohol. This information, coupled with Mark's high blood alcohol level in the current offense, his flight from the scene, and the devastation wrought on the victim's family, amply support the court's decision to impose the prior strike enhancement. There was no abuse of discretion.
Mark also complains that the trial court failed to expressly consider the mitigating circumstances he offered in support of his motion. We presume the court considered all relevant factors unless the record affirmatively shows otherwise. (People v. Kelley (1997) 52 Cal.App.4th 568, 582; Cal. Rules of Court, rule 4.409.) The court stated that it reviewed Mark's motion, which contained letters from friends and family attesting to Mark's rehabilitation and the fact that he was caring for his elderly parents and attending school. The court was not required to expressly refer to any of this information in deciding that Mark deserved to be punished as a recidivist. Moreover, the instant offense belies Mark's claim that he had "changed his behavior from his previous lifestyle."
Mark also argues that drug and alcohol abuse may be considered as a mitigating factor (see, e.g., People v. Jordan (1986) 42 Cal.3d 308), yet he fails to explain how his use of alcohol would qualify as a mitigating factor in this case. He also claims that "[t]he legislature has determined that substance abusers are better served, and that society is better served, by rehabilitation of the abuser rather than incarceration." Mark has already had his chance at rehabilitation. In any event, any legislative preference for rehabilitation does not apply where, as here, the substance abuser engages in conduct that endangers society.
The judgment is affirmed.
We concur:
GILBERT, P.J., COFFEE, J.