Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice and James A. Stuart, Judges. Super. Ct. No. BF118271A
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J.; Levy, J.; and Kane, J.
INTRODUCTION AND FACTS
During a search of appellant Richard Joaquin Sanchez’s residence, police officers seized two baggies containing suspected methamphetamine, a gram scale, some empty sandwich bags and approximately $17,000 from various locations in the master bedroom. One of the baggies weighed approximately 15 grams and the other weighed approximately 32 grams. At the preliminary hearing, it was stipulated that both of the baggies contained a usable amount of methamphetamine and Kern County Deputy Sheriff Robert Stevenson opined that the methamphetamine was possessed for purpose of sale.
Appellant was charged with possession of a controlled substance for sale (count 1) and possession of less than 28.5 grams of marijuana (count 2). One prior strike was alleged. (Health & Saf. Code, §§ 11378, 11357, subd. (b); Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).)
Appellant entered into a negotiated plea agreement. Count 2 was dismissed in consideration for appellant’s no contest plea to count 1. The plea was conditioned on a maximum sentence of 32 months imprisonment.
The probation report sets forth appellant’s criminal history. In 1977, appellant suffered a juvenile adjudication for forgery that resulted in a commitment to the California Youth Authority. Appellant’s prior strike resulted from a 1991 burglary conviction. Appellant has suffered two other felony convictions: a 1984 forgery conviction and a 1990 conviction for driving without a license. On each occasion appellant was placed on felony probation, which he violated. Following the 1991 robbery conviction, appellant suffered eight convictions for misdemeanors or infractions. His most recent conviction prior to the current offense occurred in 2002 for appropriating lost property. Appellant told the probation officer that he is a recovered drug addict who last used illegal narcotics 11 years ago. Appellant installed carpet from the late 1970’s to the early 1990’s. Beginning in 2006, he worked for a construction company.
Appellant filed a written request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) for dismissal of the prior strike allegation (the Romero motion). During the hearing on the Romero motion defense counsel argued that appellant falls outside the spirit of the Three Strikes law because the prior strike occurred over 15 years ago and his subsequent criminal history is minor. The prosecutor argued that appellant’s prior criminal history does not fall outside the spirit of the Three Strikes law because he violated his parole twice after the 1991 robbery and suffered numerous misdemeanor convictions. The court ruled as follows:
“The thing that strikes me about this particular case, [defense counsel], is the fact [that appellant] has not, according to the statements of probation, at least, used narcotics in over 11 years as of the time of the interview. But his involvement in this case would suggest that he was quite involved in the sales of narcotics for purposes of profit; and as such, I think that places him within the spirit of the three strikes. And I’m going to deny your motion to strike the strike.”
Appellant was sentenced to a total term of 32 months imprisonment (the low term of 16 months for count 1, doubled for the strike).
Appellant challenges denial of the Romero motion as an abuse of discretion. We are not convinced and will affirm the judgment.
DISCUSSION
In ruling on a request to dismiss a prior strike, the court must conduct a fact-based inquiry to determine whether the defendant falls outside the spirit of the Three Strikes law. Relevant factors include the nature of the present offense, defendant’s prior criminal history, the defendant’s background, character and prospects, as well as other individualized considerations. (People v. Williams (1998) 17 Cal.4th 148, 161; People v. Philpot (2004) 122 Cal.App.4th 893, 905 (Philpot).) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) The burden is on the party attacking the sentence to demonstrate that the lower court’s decision was “so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
Appellant argues that denial of the Romero motion constitutes an abuse of discretion because the court focused almost exclusively on appellant’s current offense and failed to give appropriate weight to other factors in his favor. Appellant asserts that the Romero motion should have been granted because his current offense is not violent, the prior strike is remote, his criminal history is relatively minor, he has abandoned drug use, and he has been employed for over a decade. We are not persuaded.
Essentially, appellant is asking this court to reweigh the evidence and substitute our judgment for that of the trial court. This we will not do. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Appellant offers no authority holding that the court is required to articulate every one of the factors it considered. On the contrary, “[t]he court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (Ibid.) Thus, the fact that the court focused its comments on appellant’s current offense does not mean that this is the only factor it considered. (Ibid.)
Furthermore, the court’s focus on the current offense was proper in light of its seriousness. (See Philpot, supra, 122 Cal.App.4th at p. 907.) Appellant possessed approximately 45 grams of methamphetamine and $17,000. Possession of narcotics for purpose of sale is a straight felony and conviction of this offense requires registration as a narcotics offender. (Health & Saf. Code, §§ 11378, 11590, subd. (a).) There is “a direct nexus between illegal drugs and crimes of violence.” (Harmelin v. Michigan (1991) 501 U.S. 957, 1003 (Kennedy, J., concurring); see also Rummell v. Estelle (1980) 445 U.S. 263, 296, fn. 12, (Powell, J., dissenting).) As a self-described recovered drug addict, appellant should be keenly aware of the grave harm a drug dealer’s merchandise causes to users, their families and the community. That appellant sought to profit from another’s addiction is particularly reprehensible in light of his personal history.
Furthermore, appellant’s prior criminal history spans a period of 30 years and demonstrates a pattern of recidivism. His prior strike offense was for robbery, which is a violent crime. (People v. Ramos (1982) 30 Cal.3d 553, 587.) Although the strike offense is remote, appellant did not subsequently live a life that was free from crime. He repeatedly violated the terms of his felony probation and suffered numerous convictions for misdemeanors and infractions. Even his claimed recovery from drug addiction did not eradicate appellant’s criminal conduct; in addition to the current felony, he suffered a conviction for a theft offense in 2002. Here, as in Philpot, supra, 122 Cal.App.4th at page 906, appellant’s “conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for [appellant].”
The length of a sentence, when considered together with a defendant’s age, can be considered as a relevant factor. (People v. Bishop (1997) 56 Cal.App.4th 1245, 1251.) Appellant was 46 years old when he was sentenced to a relatively short term of 32 months. Thus, appellant is not facing a period of imprisonment that is substantially equivalent to a life term.
Appellant’s reliance on three cases in which reviewing courts upheld the dismissal of a strike allegation is misplaced. (People v. Garcia (1999) 20 Cal.4th 490; In re Saldana (1997) 57 Cal.App.4th 620; People v. Bishop (1997) 56 Cal.App.4th 1245.) None of these cases held that denial of the Romero motion at issue would have been an abuse of discretion. Cases are not authority for propositions that are not discussed or considered therein. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65-66; People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4.) Additionally, these cases are factually distinguishable. (People v. Garcia, supra, 20 Cal.4th 490 [in relevant part, high court decided that sentence of 31 years to life for burglary was not too lenient where crime was related to defendant’s drug addition & his prior convictions arose from single period of aberrant behavior]; In re Saldana, supra, 57 Cal.App.4th 620 [two strikes found true; appellate court upheld dismissal of one strike resulting in sentence of four years for simple possession of heroin discovered during parole search]; People v. Bishop, supra, 56 Cal.App.4th 1245 [three strikes found true; appellate court upheld dismissal of two strikes resulting in 12-year sentence for petty theft with a prior].)
Given the entirety of the circumstances, we conclude that denial of the Romero motion was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.