Opinion
G044678 Super. Ct. No. 09WF0160
10-21-2011
THE PEOPLE, Plaintiff and Respondent, v. VINCENT LAROY NICHOLSON, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed as modified.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court did not abuse its discretion in declining to strike a prior offense for sentencing purposes. Defendant's sentence was neither cruel nor unusual. We affirm but order the judgment modified to reflect the correct number of presentence custody credits to which defendant is entitled.
I
FACTS
A jury found defendant Vincent Laroy Nicholson guilty of second degree robbery during which he personally used a dangerous or deadly weapon. Prior to sentencing, defendant filed an "invitation for the court to exercise its discretion under Penal Code section 1385 to dismiss the prior strike allegations," which the court denied. (All further statutory references are to the Penal Code.) The court sentenced him to a total of 31 years to life in state prison.
On December 9, 2008, Arolyn George worked at Walgreens in Huntington Beach as a cashier on the graveyard shift from 10:30 p.m. until 7:00 a.m. Defendant came into the store. George said she saw defendant because she knows "all the regulars" and she noticed him because he was not a regular. George described what he did: "He came in and he went and got a drink and came to the register, and left the register to go get some chips and came back." Meanwhile George and a regular customer named Matt had a conversation. George said "it seemed weird, as soon as Matt left, because he was using the ATM, is when [defendant] came back to the register." As he approached with the chips, defendant said he didn't want the chips after all, and he put the chips down.
As George testified during trial, the prosecutor played a surveillance video taken during the robbery. The prosecutor froze a frame and George identified defendant as the man on the video.
George rang up a Mountain Dew and told defendant the price. As George opened the drawer to the register, defendant said: "Don't move, don't scream, and give me all the money." When George looked up, she saw he was holding a box cutter. She was "terrified." Defendant "reached over and grabbed all the money." There was approximately $200 in the register.
Police retrieved finger prints from the chip bag. A comparison of those prints with an exemplar of defendant's prints showed both were from the same person.
The following stipulation about another robbery committed the next day was reached between the parties and read to the jury: ". . . Number 1, according the certified records of the Superior Court of the State of California, County of San Bernardino, West Valley District, Vincent Laroy Nicholson, date of birth April 17th, 1965, was charged in Count 1 by a felony complaint in Case Number FWV803230, with committing a second-degree robbery on December 10th, 2008, and did by means of force and fear take personal property from a person's possession and immediate presence of Amanda Glass; [¶] Number 2, . . . [defendant] . . . pled guilty on December 22, 2008, to Count 1 . . . ."
II
DISCUSSION
Defendant contends "the trial court erred in declining to strike one of [his] prior strikes, violating [his] federal and state constitutional rights." The Attorney General states that "evidence of [defendant]'s 30-year history of violence, recidivism, and drug abuse, demonstrates he does fall within the spirit of the Three Strikes law."
Penal Code section 1385, subdivision (a) states, "The judge or magistrate may, either of his or her own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. . . ." While the statute allows for a motion to be made only by the prosecutor or on the courts own motion, a defendant may "invite" the court to exercise its discretion to strike a prior felony. The court's ruling on such a motion is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) A trial court abuses its discretion only if its ruling is "so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
The Orange County Probation Department listed numerous crimes committed by defendant in the probation and sentencing report it submitted to the trial court. In 1980, he was committed to the California Youth Authority for violating section 288, subdivision (a); defendant did "not recall the details but acknowledged his culpability in the matter." In 1985, when defendant was 19, he was convicted of molesting and fondling his eight-year-old sister, who became infected with a sexually transmitted disease; he was sentenced to six years in prison. In 1995, when defendant was 30, defendant was arrested in Nevada for being a felon in possession of a firearm after a woman said he confronted her and demanded she get into his vehicle. In 1997, when defendant was 32, defendant was observed by police as he purchased rock cocaine from a dealer. In 2005, when defendant was 40, he pled guilty to failing to register as a sex offender.
In 2008, when defendant was 43, he was sentenced to four years in prison for a robbery. The probation report states a clerk in a drug store opened the cash register when defendant paid for some gum and "defendant reached over the counter with a razor blade in his hand and slashed [the clerk] on her left side under her armpit and swiped at her several more times, sliced through her work shirt, cut her bra and punctured her skin." Defendant told the probation officer he committed the offense to obtain money to buy drugs.
At the time of sentencing, the court stated that as it looked "through the probation report and both [counsel's] moving papers, the court searched for ways to justify striking one or more of the strikes and giving him an indeterminate term, since this is under $400, it's just a convenience store and he didn't use the knife, but [the court] was unable to justify, with his 30-year history of violence, drugs and disregard for the health and safety of other people, any reasonable justification for striking either of his two strikes. [¶] Even though they're out of the same case, he's demonstrated over his life with sporadic periods, fortunately, of sanity and ability to get along with other people, a lifelong commitment to crime by use of violence, drugs and disregard for other people and their safety. [¶] . . . [¶] So I have no difficulty at all in saying that the court declines to exercise its discretion pursuant to the case of [People v. Superior Court (Romero)(1996) 13 Cal.4th 497] and others, and 1385 of the Penal Code, to dismiss either of the prior strike allegations; therefore, he is going to be getting a life sentence."
The Three Strikes scheme is intended to limit courts' discretion in sentencing repeat offenders. There exists no discretionary sentencing choice, unless the sentencing court determines that an exception should be made because defendant is deemed to fall outside the spirit of the "Three Strikes" law. This analysis includes considering remoteness and the nonviolent nature of prior offenses. (See People v. Bishop (1997) 56 Cal.App.4th 1245.) When deciding whether to strike a prior, "weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of the his background, character, and prospects. [Citation.]" (People v. Williams (1998) 17 Cal.4th 148, 161.)
State legislatures enacting Three Strikes laws made a deliberative policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional punishment approaches, must be isolated from society to protect the public safety. (Ewing v. California (2003) 538 U.S. 11, 24.) "In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the 'triggering' offense: '[I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.' [Citations.]" (Id. at p. 29.)
The trial court considered the surrounding circumstances and carefully weighed them in making its decision. Under the circumstances we find in this record, we cannot find the court abused its discretion.
Defendant also claims his sentence "is unconstitutional because it is so grossly disproportionate to the current offense of second degree robbery that it 'shocks the conscience and offends fundamental notions of human dignity.'" We disagree. (Ewing v. California (2003) 538 U.S. 11, 20-24; Lockyer v. Andrade (2003) 538 U.S. 63, 73; Rummel v. Estelle (1980) 445 U.S. 263, 281.)
III
DISPOSITION
The judgment is affirmed, but modified to reflect defendant has 355 days of presentence custody credit, 309 days for actual custody and 46 days of conduct credit.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. ARONSON, J.