Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge, Super. Ct. No. BF117300B
Grace Lidia Suarez, 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, Carlos A. Martinez, Supervising Deputy Attorney General, Wanda Hill Rouzan and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Harris, J. and Hill, J.
Just after midnight on December 15, 2006, the car in which appellant LeRoy Anthony Seymore was a passenger was stopped because it had no license plates and an expired temporary registration permit. A search of appellant turned up cocaine base in his pocket. Appellant subsequently pled guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), and admitted having suffered a prior “strike” conviction (Pen. Code, §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and having served a prior prison term (§ 667.5, subd. (b)), on condition that he receive no more than 44 months in prison. He was ultimately sentenced to that term, calculated as the lower term of 16 months, doubled under the three strikes law, plus a consecutive one-year term pursuant to section 667.5, subdivision (b). Having timely appealed and obtained a certificate of probable cause, he now contends the trial court erred by denying his request to dismiss the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). For the reasons that follow, we will affirm.
Further statutory references are to the Penal Code.
DISCUSSION
Trial courts have limited discretion under section 1385 to dismiss prior convictions in three strikes cases. (Romero, supra, 13 Cal.4th at p. 530.) We review the exercise of this power under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) Because “the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so,” “the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances.” (Id. at p. 378.) “Because the circumstances must be ‘extraordinary … by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable person could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court observed that section 1385, subdivision (a) requires the striking of a balance between the defendant’s constitutional rights, including the guaranties against disproportionate punishment, and society’s interests, including the fair prosecution of properly charged crimes. (Williams, at p. 160.) In striking this balance, no weight may be given to factors extrinsic to the three strikes scheme, such as a mere desire to ease court congestion or antipathy to the consequences for any given defendant. By contrast, preponderant weight must be given to factors intrinsic to the scheme, such as the nature and circumstances of the present felony or felonies and prior serious and/or violent felony convictions, and the particulars of the defendant’s background, character, and prospects. (Id. at p. 161.) Accordingly, the court concluded that, in determining whether to vacate a strike conviction allegation, or in reviewing such a ruling, “the court in question 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.” (Ibid.)
In the present case, the probation officer’s report (RPO) revealed that appellant, who was born in 1955, had an adult record, consisting of some 20 convictions, dating back to 1976. The majority of the convictions involved misdemeanors for which appellant was given jail time and probation, and he frequently violated his probationary terms. He suffered a strike conviction (violation of § 245, subd. (a)) in 1983, and he served prison terms beginning in 1991 (following two separate violations of felony probation) and 2000. With respect to the 2000 conviction, which was for second degree burglary, the RPO related that appellant stole the victim’s backpack and the victim was stabbed during an altercation. Although appellant initially was paroled in 2002 on this offense, he violated parole five times – the last in December 2005 – and was not discharged from parole until May 2006. The present offense was committed seven months later, slightly more than nine months after his final release on parole. The RPO further revealed that appellant had an 11th-grade education and training in masonry; had worked for three different employers between 2005 and the date of his most recent arrest, doing home repair or working in the oilfields; and considered himself a drug addict, as he began using cocaine at age 18 and smoked “a couple hundred dollars worth a couple times per month.”
Additionally, appellant was committed to the California Rehabilitation Center in 1993, and twice violated the terms of his outpatient status before being discharged in 1997.
In arguing for dismissal of his strike conviction, appellant pointed to the following factors: the strike conviction was remote in time; he had suffered no strike convictions since; no one was seriously injured in that crime; his convictions over the last 10 years were primarily misdemeanors; his most recent conviction was seven years ago; and his current offense involved no violence or victim. Appellant further argued that, in light of his good record over the last 10 years, he should be given a chance on probation. The prosecutor countered that appellant had a 30-year pattern of criminal activity; moreover, since his last drug-related offense was in 1993 and his parole was revoked a number of times, he was not a suitable candidate for probation or Proposition 36 treatment.
With respect to the Romero request, the sentencing court observed that the current offense was, in the abstract, less serious than many other felonies; the circumstances of the offense did not indicate a great degree of danger to society; and there was no threat of harm or injury or loss to any particular victim. The court then turned to appellant’s prior record, discussing both its extent and nature of the convictions, as well as the number of times appellant violated probation and parole. This ensued:
“[THE COURT:] In reviewing this case, the defendant has not, as far as his future prospects and potential, the defendant has not demonstrated any long-term employment. He is not attending school. His criminal and juvenile record, in addition to the current offenses are extensive.
“Considering the relevant factors on behalf of the defendant, mostly the age of the strike, and considering the relevant factors on behalf of the People, the continuous criminal history that the defendant has shown, that it would –
“MR. LAMPKIN [defense counsel]: Judge, it is my understanding that all of the parole violations, and I have to agree there are several of them, but Mr. Seymore tells me they are all because of failure to report, no kind of violence or victim type crimes.
“THE COURT: The Court will not make any indication as to whether they were violence or new crimes, but it is an indication that he is not a suitable candidate for probation, but in light of the opportunity he has been given to learn from the previous application of parole by the Court, he is not a person that is outside of the sentencing scheme; therefore, as to Count 1, 11350, with one 667(e) allegation, probation is denied.
“I will order that he be sentenced to the Department of Corrections for the low term of 32 months.
“That sentence is to be enhanced by one year pursuant to Section 667.5(b) for a total fixed term of 44 months.”
The sentencing court manifestly did not abuse its discretion in refusing to dismiss appellant’s prior strike conviction. The factors argued by appellant in support of his request pale in comparison to his “unrelenting record of recidivism” (People v. Gaston (1999) 74 Cal.App.4th 310, 320) and his utter failure to abide by the rules or to learn anything from his experience (id. at p. 322). In short, appellant “is the kind of revolving-door career criminal for whom the Three Strikes law was devised.” (Id. at p. 320). The record fully supports the sentencing court’s determination, which took into account appellant’s background, character, and prospects, as well as his criminal record, that appellant should not be deemed outside the spirit of the three strikes scheme. (See People v. Carmony, supra, 33 Cal.4th at pp. 378-379; People v. Williams, supra, 17 Cal.4th at pp. 162-163; People v. Strong (2001) 87 Cal.App.4th 328, 338-340 & cases cited.) That the court referred to appellant’s lack of suitability as a candidate for probation does not change our conclusion; the record clearly demonstrates the court was simply addressing the Romero and probation arguments at the same time, not that it misunderstood the difference between granting probation and dismissing a prior conviction.
“‘[W]here 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 .…’” (People v. Carmony, supra, 33 Cal.4th at p. 378.) Such is the situation here: as we cannot say the relevant factors “manifestly support the striking of [the] prior conviction and no reasonable minds could differ” (ibid.), appellant has failed to establish an abuse of discretion.
DISPOSITION
The judgment is affirmed.