Opinion
B226011
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD EDWARD SHARP, Defendant and Appellant.
Kevin S. Lacey, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA076397)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed.
Kevin S. Lacey, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Richard Edward Sharp appeals from the judgment entered after he was convicted by a jury of corporal injury to a spouse. No meritorious issues have been identified following a review of the record by Sharp's appointed counsel and our own independent review of the record and analysis of the multiple contentions presented by Sharp in a handwritten supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2009, Sharp was charged by information with one count of inflicting corporal injury on his wife, Caroline Huddleston. (Pen. Code, § 275.5, subd. (a).) The information specially alleged that Sharp had suffered two prior serious or violent felony convictions (vehicular manslaughter with gross negligence and aggravated hit and run driving) under the "Three Strikes" law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)).
Statutory references are to the Penal Code.
Represented by appointed counsel, Sharp pleaded not guilty to the charge and denied the special allegations. His motion to relieve appointed counsel (People v. Marsden (1970) 2 Cal.3d 118) was heard and denied. Sharp retained a private attorney and the public defender's office was relieved as counsel of record.
Sharp's motion to dismiss one or both of his prior strike convictions (People v. Superior Court (Romero) 13 Cal.4th 497, § 1385) was heard and denied. However, Sharp's prior strike conviction for aggravated hit and run driving was subsequently dismissed on the People's motion following a chambers conference, and his motion to bifurcate trial on the alleged strike conviction, for vehicular manslaughter with gross negligence, was granted. In another ruling, the court determined that if Sharp testified, he could be impeached with these two prior felony convictions.
Jury trial commenced on April 8, 2010.
According to the evidence at trial, in 2009, Sharp and Huddleston lived together with their three children, aged 13 years, seven years and five years old. Sharp had problems with gambling and alcohol abuse. In October 2009, the couple was having financial difficulties; Sharp had lost two jobs, which meant that Huddleston alone was supporting the family.
On the night of October 25, 2009, an argument between Sharp and Huddleston over their finances erupted into a violent altercation in front of their children. The primary issue at trial was whether Sharp or his wife, Caroline Huddleston, was the aggressor in this incident.
Huddleston and the children had gone to bed in the family's only bedroom when Sharp, who was intoxicated, came in and wanted to talk with Huddleston. She became angry when Sharp told her that he had been to the racetrack that evening. The couple began yelling at each other. At one point, Sharp "flipped" Huddleston's body so that her head was hanging off the bed, before climbing on top of her and punching "around [her] head." Huddleston did not hit back; she raised her arms to shield her face. The children screamed at Sharp to stop, and the oldest son attempted to physically restrain Sharp. Huddleston was able to push Sharp away before sliding off the bed and onto the floor. Sharp picked up Huddleston by her hair, punched her and slammed her head against the walls and the door frame. Huddleston was focused on her children's safety and kept urging them to run outside for help. Sharp threw Huddleston out of the bedroom, and she hit the hallway wall. Huddleston ran to the back of the house and unlocked the door so she and the children could escape. Sharp caught up with Huddleston and threw her down on the floor, while the children ran out of the house. Huddleston managed to flee through the unlocked door, screaming for help. She caught up with the children in the street and was met by her next door neighbor, who handed her a cell phone to call police. Officers arrived and took Sharp into custody.
Huddleston is about five feet two inches tall and, at the time, weighed about 120 pounds. Sharp is about six feet four inches tall and, at the time, weighed about 250 pounds. Sharp caused Huddleston to suffer a large bump on the side of her head, a number of bruises on her head, neck, chest and arms, and scratches on her neck.
Following the presentation of the People's case-in-chief, the defense made a motion for a judgment of acquittal under section 1118.1. The trial court denied the motion.
The defense theory was self-defense. Sharp testified and acknowledged he had a gambling problem which was exacerbated by his consumption of alcohol. Sharp admitted that he had been drinking on the night of October 25, 2009 and that he and Huddleston had argued in the bedroom in the presence of their children. However, Sharp claimed that Huddleston was the aggressor. According to Sharp, when the two of them began yelling at each other, Huddleston repeatedly attacked him. Sharp initially blocked her punches and grabbed her arm to prevent her from hitting him. Sharp admitted to having unintentionally pulled Huddleston to the floor by her hair, but only to get her away from him. Sharp held her down with his body, and Huddleston told the children to leave the house. Sharp eventually released Huddleston, and the two of them went outside to get the children. Sharp denied punching Huddleston that night.
The jury convicted Sharp as charged. He then waived his rights to a jury trial in favor of a bench trial on the prior strike allegation. However, at sentencing, Sharp admitted the alleged prior strike conviction of vehicular manslaughter with gross negligence. The trial court imposed a state prison sentence of six years, consisting of the middle term of three years doubled under the Three Strikes law. Sharp was awarded 378 days of presentence credit (252 actual days and 126 days of conduct credit). The court ordered Sharp to pay a $30 security fee, a $30 criminal assessment fee, a $200 domestic violence fund fine and a $200 restitution fine. The court imposed and suspended a parole revocation fine pursuant to section 1202.45. This appeal followed.
DISCUSSION
We appointed counsel to represent Sharp on appeal. After an examination of the record, counsel filed an opening brief in which no issues were raised. On April 19, 2011, we advised Sharp that he had 30 days in which to personally submit any contentions or issues he wished us to consider. On June 20, 2011, we received Sharp's handwritten brief in which he challenged his conviction and sentence on several grounds. Although none of defendant's claims presents an arguable issue, pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 120-121, we identify Sharp's contentions and explain the reasons they fail.
The trial court did not abuse its discretion in refusing to dismiss the prior strike conviction for voluntary manslaughter with gross negligence
Section 1385, subdivision (a), vests the court with discretion to dismiss a prior conviction, including a qualifying strike conviction, "in furtherance of justice." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530; People v. Williams (1998) 17 Cal.4th 148, 158.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, 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 [Three Strikes] 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." (Williams, at p. 161.)
We review the trial court's decision not to dismiss a prior strike allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) "[T]he 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. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] . . . [¶] . . . '[I]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. . . . 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 people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Id. at p. 378.)
Sharp's prior strike conviction for voluntary manslaughter with gross negligence was in 1996. Sharp argued that this conviction should be dismissed as remote. He also maintained that after 152 days in custody, he was "clean and sober" and ready to accept responsibility for his addictions. Sharp urged the court to dismiss the prior strike conviction, and to impose a probationary sentence so he could enroll in a residential program.
In denying the motion to dismiss, the trial court noted that while the prior strike conviction was in 1996, Sharp had violated parole in 1999. Additionally, the crime for which Sharp was currently charged was not a minor offense, as Sharp was accused of assaulting his wife in front of his young children. The court also observed that Sharp's mother had attempted to induce Huddleston "to drop the charge."
The court then found that Sharp, at 48 years old and with a lengthy history of alcohol and drug abuse, was likely to reoffend. The court also found that the prior strike conviction that Sharp was seeking to have dismissed involved a fatality resulting from Sharp driving while intoxicated, and rose to the level of a serious felony. Finally, the court found that because Sharp would turn violent when he was under the influence of drugs or alcohol, he posed a danger to the community as well as to his family. The court concluded, "Your background character, prospects, the only thing that you might have in your favor is remoteness [of the challenged strike conviction], but there are reasons to suggest that that is really not a factor for me to believe that you're out[side] of the spirit of the Three Strikes law."
The trial court clearly did not act "in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan, supra, 42 Cal.3d at p. 316.) In view of Sharp's lengthy history of substance abuse and inability to conform his behavior to the requirements of the law, the trial court did not abuse its discretion in refusing to strike one of defendant's prior convictions. (People v. Williams,
supra, 17 Cal.4th at p. 161; see, e.g., People v. Carmony, supra, 33 Cal.4th at pp. 378-379.)
Sharp was properly sentenced under the applicable law.
Sharp contends he was sentenced in violation of his right to jury trial.
"In Cunningham [v. California (2007) 549 U.S. 270 (Cunningham)],the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296, concluded that California's DSL [did] not comply with a defendant's right to a jury trial. '[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.'" (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval), quoting Cunningham, supra, at p. 281.)
Concurrent with Sandoval, the Supreme Court issued People v. Black (2007) 41 Cal.4th 799 (Black II). Both decisions were issued July 19, 2007.
Subsequent to Cunningham, the California Legislature passed Senate Bill No. 40 (SB 40; Stats. 2007, ch. 3, § 2) which amended California's DSL, specifically section 1170, to eliminate the presumptive middle term as the statutory maximum in the absence of aggravating circumstances. SB 40 became effective March 30, 2007. Under the amended sentencing scheme, the trial court now has discretion to select the appropriate term within a specified range. (§ 1170, subd. (b).) Sandoval held that this cured the constitutional defect in the DSL "because the United States Supreme Court repeatedly has made clear in the line of decisions culminating in Cunningham that it 'ha[s] never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. [Citations.] . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.' (United States v. Booker (2005) 543 U.S. 220, 233; [citation].)" (Sandoval, supra, 41 Cal.4th at p. 844.) Sandoval also fashioned a judicial remedy, consistent with the amendments to section 1170, for resentencing in cases following a reversal based on Cunningham error.
The Judicial Council similarly amended the sentencing rules, effective May 23, 2007, to conform to the amendments to the DSL. (See, e.g., Cal. Rules of Court, rule 4.420; Sandoval, supra, 41 Cal.4th at pp. 847-848.)
Sharp was sentenced to a six-year state prison term, or double the three-year middle term as a second-strike offender. Furthermore, Sharp was convicted and sentenced in 2010, three years after the enactment of SB 40 and the decisions in Black II and Sandoval. Sharp has not demonstrated to this court how Cunningham applies to his sentence, nor is it apparent that it does.
To the extent Sharp is also claiming, by mentioning them, that his trial or sentence was in violation of double jeopardy, due process, and section 654, the record provides no factual basis for those claims, and we accordingly do not address them further.
The judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J.
JACKSON, J.