Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1242715. Hurl W. Johnson III, Judge.
Rita L. Swenor, 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, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J. and Hill, J.
Charles Thompson III was found guilty of possession of a controlled substance, in violation of Health and Safety Code, section 11350, subdivision (a). The trial court also found true the allegation that Thompson had two prior convictions, which constituted strikes within the meaning of Penal Code section 667, subdivisions (b) through (i). Thompson requested the trial court strike both of his prior convictions. The trial court exercised its discretion to strike one of the prior convictions pursuant to section 1385, subdivision (a), but denied his request to strike the second prior conviction. Thompson argues the trial court abused its discretion in refusing to strike the second prior conviction. The trial court did not abuse its discretion and we will, accordingly, affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
The information charged Thompson with possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), driving a vehicle while intoxicated (Veh. Code, § 23152, subd. (a)), and driving a vehicle with a blood-alcohol content in excess of.08 percent (Veh. Code, § 23152, subd. (b)). The following enhancements also were alleged: (1) Thompson had two prior strike convictions within the meaning of Penal Code section 667, subdivisions (b) through (i) (count I); (2) Thompson had four prior felony convictions and served a term of imprisonment after those convictions within the meaning of Penal Code section 667.5, subdivision (b) (count I); (3) Thompson’s blood-alcohol content exceeded.15 percent, in violation of Vehicle Code section 23578 (counts II and III); and (4) Thompson was convicted of violating Vehicle Code section 23152, subdivision (b) within the last 10 years, within the meaning of Vehicle Code section 23540, subdivision (a) (counts II and III).
Thompson pled guilty to driving with a blood-alcohol content in excess of.08 percent and the related enhancements (count III) and was sentenced to three years’ probation conditioned on 15 days’ imprisonment. Although unclear from the record, it appears the People dismissed the alleged violation of Vehicle Code section 23152, subdivision (a) (count II).
A court trial was held on the possession charge. Thompson was found guilty of violating Health and Safety Code section 11350, subdivision (a). The trial court found the two prior convictions were strikes within the meaning of Penal Code section 667, subdivisions (b) through (i), and found Thompson had served three prior prison terms within the meaning of section 667.5, subdivision (b). The People advised the trial court that they would not oppose a motion to strike the oldest prior conviction, which constituted a strike. Thompson requested the trial court exercise its discretion and strike that conviction pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero). The trial court struck the prior conviction.
At the sentencing hearing, Thompson requested the trial court strike his second prior conviction, which constituted a strike pursuant to Romero. After considering the arguments of counsel, the moving papers, and the probation report, the trial court declined to do so. The trial court sentenced Thompson to a midterm sentence of two years, doubled to four years pursuant to section 667, subdivision (e)(1). The trial court then exercised its discretion to dismiss two of the section 667.5 prior prison term enhancements, thereby imposing only one of the enhancements found true. Accordingly, Thompson received a total term of five years in state prison.
DISCUSSION
Thompson asserts the trial court abused its discretion in refusing to strike the second prior conviction, which constituted a strike within the meaning of section 667, subdivisions (b) through (i). We disagree.
The trial court has discretion in deciding whether to strike a prior conviction pursuant to section 1385 subdivision (a), and our review is limited to determining whether the trial court abused that discretion. (People v. Philpot (2004) 122 Cal.App.4th 893, 904.)
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.
“Because ‘all discretionary authority is contextual’ [citation], we cannot determine whether a trial court has acted irrationally or arbitrarily in refusing to strike a prior conviction allegation without considering the legal principles and policies that should have guided the court’s actions. We therefore begin by examining the three strikes law.
“‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]
“Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to Penal Code section 1385[, subdivision (a)], 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.’ [Citation.]
“Thus, 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. In doing 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. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 376-378 (Carmony).)
To summarize Carmony, a trial court abuses its discretion only when “no reasonable person could agree with” the decision. (Carmony, supra, 33 Cal.4th at p. 376.) In the context of the three strikes law, we also must remember that the trial court’s sentencing discretion is very limited. There is a strong presumption that a three strikes sentence is proper, and there are limited circumstances under which a trial court will abuse its discretion by refusing to strike a prior conviction.
Thompson faced a sentence of 25 years to life, plus three years after the trial court found him guilty, found he had suffered two prior strikes, and found three of the prior prison terms enhancement to be true. The trial court exercised its discretion to strike one of the prior convictions pursuant to section 1385, subdivision (a) and to strike two of the prior prison term enhancements. Thompson’s sentence was reduced to a term of five years.
The trial court was aware it had discretion. There is not any indication the trial court considered impermissible factors in denying the request to strike the second strike conviction. The trial court reviewed the probation report, as well as the points and authorities submitted by both parties. It focused on Thompson’s long criminal record, the nature of the current offenses, his numerous parole violations, and Thompson’s past and current circumstances. There was nothing irrational or arbitrary about the trial court’s refusal to strike the second prior conviction. As the trial court noted, Thompson had a long criminal history and the history “[d]oesn’t belong to anybody else. People are responsible for their own actions.” The fact that Thompson attributed his long criminal history to drug abuse does not mean, or even suggest, that the trial court abused its discretion. Thompson chose to abuse drugs and chose to commit crimes to support his addiction. He did not seek admission into a treatment program until after he had been arrested. While we encourage Thompson to seek treatment upon his release, we cannot conclude that his decision to do so after his arrest required the trial court to strike any of his prior convictions.
DISPOSITION
The judgment is affirmed.