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People v. Parrish

California Court of Appeals, Sixth District
Jul 25, 2008
No. H032384 (Cal. Ct. App. Jul. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. THOMAS G. PARRISH, Defendant and Appellant. H032384 California Court of Appeal, Sixth District July 25, 2008

NOT TO BE PUBLISHED

Monterey County Super. Ct. No. SS071633

Premo, J.

Defendant Thomas G. Parrish pleaded guilty to a felony count of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), and admitted a prior conviction for a robbery committed in 1984 (Pen. Code, §§ 211, 1170.12, subd. (c)(2)). At sentencing, the trial court denied Parrish’s Romero motion and sentenced him to four years in prison.

All further statutory references are to the Penal Code.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

We appointed counsel to represent Parrish in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Parrish of his right to submit written argument in his own behalf within 30 days. We received a supplemental brief from Parrish on June 5, 2008.

In his brief, Parrish complains that the probation report was inaccurate as it implied that he refused to participate in various drug treatment programs. He also contends that, when ruling on his Romero motion, the sentencing judge failed to consider a letter Parrish wrote to the court in which Parrish sought to “correct” the inaccuracies in the probation report.

I. Factual and Procedural Background

The statement of facts is taken from the probation report.

At approximately 4:43 a.m. on May 10, 2007, Salinas police officers contacted the driver of a vehicle, Parrish, who appeared to be asleep behind the wheel. The vehicle was parked in the middle of the road with the engine running. Parrish initially gave officers a false name and date of birth, but his identity was later revealed.

Officers noticed a small plastic bindle containing a white powdery substance in the center console of the automobile and asked Parrish if the substance was cocaine. Parrish responded that it was wax. Both he and the officer reached for the bindle, but the officer was able to retrieve it first.

After an additional officer arrived, Parrish was ordered to exit the vehicle. When he did so, he opened his hand and a small cylindrical glass tube pipe fell to the ground and shattered. Parrish then stepped on the remaining pieces of pipe, destroying it. The officers believed that the pipe was a crack pipe. Parrish was subsequently arrested.

Although the officer could not collect the pieces of the broken pipe for evidence, he did collect a small white rock of base cocaine that had fallen out of the pipe and was lying on the ground. An additional rock of cocaine was found on the driver’s seat. In the back seat of the vehicle, officers discovered 17 Vicodin pills, counterfeit $100 bills, two genuine $10 bills, a green sheet of paper and a Xerox copy machine.

The two rocks recovered at the scene tested positive for cocaine. The white powdery substance, however, was indeed wax.

Parrish was initially charged by complaint with one felony count of sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 1), one felony count of possession of a controlled substance (id., § 11350, subd. (a); count 2), one felony count of forgery (§ 470, subd. (d); count 3), one misdemeanor count of possession of a drug without a prescription (Bus. & Prof. Code, § 4060; count 4), one misdemeanor count of possession of any controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 5), one misdemeanor count of destroying evidence (§ 135; count 6), one misdemeanor count of giving false information to a peace officer (§ 148.9, subd. (a); count 7), and one misdemeanor count of driving with a suspended license (Veh. Code, § 14601.2, subd. (a); count 8). Parrish was assigned a deputy public defender and, on May 21, 2007, moved to enter a conditional plea. According to the terms of the conditional plea agreement, Parrish would plead guilty to counts 2, 3, 6 and 7 in exchange for a suspended sentence of up to three years and eight months. However, Parrish would be allowed to withdraw his plea if, after reading the probation report, the trial judge found that Parrish was not suitable for probation.

The probation report was filed on June 11, 2007. According to that report, Parrish had suffered several felony convictions, as follows: (1) 1982--grand theft (§ 487); (2) 1984 and 1985--robbery (§ 211); (3) 1998--possessing, receiving or uttering forged paper (§ 475, subd. (a)); and (4) 2004 and 2007--possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). Parrish, who had been placed on three years probation for the 1984 robbery, was sentenced to seven years in prison for the 1985 robbery. He was subsequently sentenced to three years in prison on the 1998 forged paper conviction. Parrish also had 14 misdemeanor convictions, three Vehicle Code violations, and at the time of the instant arrest, was on probation for the 2004 and 2007 felony possession of a controlled substance convictions. In the course of his interview with the probation officer, Parrish admitted that he had been financing his drug habit by selling cocaine.

On June 19, 2007, the People informed the trial judge that it had not been aware of Parrish’s two prior felony robbery convictions at the time the original complaint was filed and wished to amend the complaint to allege those prior convictions. The trial judge set aside Parrish’s guilty plea and sent the matter back for a pretrial conference so that the People could file an amended complaint.

The amended complaint, filed on June 21, 2007, alleged the same counts 1 through 8 as were alleged in the original complaint, but added an allegation that Parrish had been previously convicted of two serious or violent felonies, specifically robberies (§ 211) committed in 1984 and 1985 (§ 1170.12, subd. (c)(2)).

On July 21, 2007, Parrish wrote a letter to the court, stating that all of his convictions since 1985 had been “victimless,” and requested probation with residential drug abuse treatment. Parrish also offered explanations as to why he previously failed to complete several drug treatment programs.

On August 3, 2007, Parrish’s initial Marsden motion was heard and denied. On August 28, 2007, a second Marsden motion was heard and denied after Parrish expressed his desire to be represented by his current counsel.

People v. Marsden (1970) 2 Cal.3d 118.

Also on August 28, 2007, Parrish entered a conditional plea of guilty to count 2 (felony possession of cocaine), and admitted the section 1170.12, subdivision (c)(2) allegation relating to the 1984 robbery. The plea was conditioned on Parrish receiving a maximum sentence of four years, subject to modification if his Romero motion were granted.

On September 18, 2007, the probation officer filed its second report, which was essentially identical to the first report, recommending a prison term. At the October 2, 2007 hearing on his Romero motion, Parrish’s attorney and Parrish addressed the court and discussed Parrish’s drug addiction and the circumstances surrounding his efforts to overcome that addiction. The trial court denied Parrish’s Romero motion, found that probation was not appropriate and imposed a four year sentence, recommending that the Department of Corrections and Rehabilitation consider placing Parrish in a substance-abuse program.

Parrish filed a notice of appeal on November 8, 2007, and his request for a certificate of probable cause was granted on December 7, 2007. Parrish’s November 7, 2007 request to recall the sentence, pursuant to section 1170, subdivision (d), was denied on December 7, 2007.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.

A defendant has the right to seek review of a court’s decision not to strike a prior conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The court’s decision is reviewed under the abuse of discretion standard, and the burden on defendant is to show that the court’s decision was “ ‘ “irrational or arbitrary.” ’ ” (Ibid.) The decision to strike a prior conviction may be made only for “ ‘ “articulable reasons which can withstand scrutiny.” ’ ” (Id. at p. 377.) “It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

As stated by the probation officer, Parrish had an extensive criminal history, including the two prior felony robbery convictions, and had served two prison terms. The probation officer summed up Parrish’s prior performance on probation and parole as follows: “The defendant’s first grant of probation dates back over twenty-five years. Since then, he has been granted probation on at least thirteen separate occasions and served several prison sentences. He has violated both probation and parole, numerous times. The defendant’s performance on probation and parole has been atrocious.” The probation officer also noted that, at the time of the offense, Parrish “was on three grants of probation out of Santa Cruz County.”

The trial court’s articulated reasons for denying the Romero motion show that the court carefully considered all the factors bearing upon the determination. Although Parrish’s current promise of reform is laudable, his criminal history shows that he had failed to deal with his drug problem in the past and continued to break the law. The trial court did not abuse its discretion in denying Parrish’s Romero motion.

II. Disposition

The judgment is affirmed.

WE CONCUR: Rushing, P.J., Bamattre-Manoukian, J.


Summaries of

People v. Parrish

California Court of Appeals, Sixth District
Jul 25, 2008
No. H032384 (Cal. Ct. App. Jul. 25, 2008)
Case details for

People v. Parrish

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THOMAS G. PARRISH, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Jul 25, 2008

Citations

No. H032384 (Cal. Ct. App. Jul. 25, 2008)