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People v. Walker

California Court of Appeals, Second District, First Division
Feb 18, 2011
No. B223206 (Cal. Ct. App. Feb. 18, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA109896, Lori A. Fournier, Judge.

Richard Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.


JOHNSON, J.

After defendant pleaded no contest to felony burglary and admitted a prior felony conviction, he filed a Romero motion in which he asked the sentencing court to dismiss (“strike”) his prior felony conviction under Penal Code section 1385. In support of the motion, defendant argued he had not fully understood that the prior conviction would qualify as a strike, and that the circumstances of the instant offense warranted leniency. The sentencing court denied the motion, after concluding defendant was clearly apprised of and understood the nature of his conviction as a strike, and reasoning that the circumstances did not justify a striking of the prior felony conviction in furtherance of justice. We affirm.

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

PROCEDURAL BACKGROUND

In 2006, appellant Maynard Joel Walker, Jr. was charged with two counts of carrying a concealed and loaded firearm, and a gang enhancement was alleged. (Pen. Code, §§ 12025, subd. (a)(2), 12031, subd. (a)(1), 186.22, subd. (b)(1)(A).) (Further statutory references are to the Penal Code.) Walker pleaded no contest to one of the two weapons charges (the remaining charge was dismissed), and admitted the gang allegation. The court imposed a three-year four-month prison sentence, suspended its execution, and released Walker on probation subject to certain terms and conditions.

An information filed in July 2009 in the instant action charged Walker with first degree residential burglary. (§ 459.) The information also alleged that Walker suffered the 2006 conviction as a prior conviction for a serious or violent felony, and as a “strike, ” and that the new charges triggered a probation violation of the 2006 action. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667, subd. (a)(1).)

Walker pleaded no contest to the burglary charge, and admitted the prior conviction allegations. Pursuant to section 1385 and Romero, Walker moved to strike the prior conviction for purposes of sentencing. The motion was denied.

Probation was denied, and Walker was sentenced to state prison for an aggregate term of nine years: consisting of a two-year lower term for the burglary, doubled to four years because of a prior “strike” (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)), plus a consecutive five-year enhancement for the prior serious felony conviction (§ 667, subd. (a)(1)). As to the 2006 conviction, the court vacated the stay of execution, and imposed a three-year four-month sentence, consisting of the 16-month low term enhanced by two years due to the gang allegation. That sentence was to run concurrently to the sentence imposed in the burglary action.

FACTUAL BACKGROUND

In the 2006 offense, a police officer involved in chasing a group of suspected gang members happened upon Walker and saw him toss a gun away. Walker was arrested.

In the instant action, a home was burgled on March 20, 2009. The resident, who was absent from March 20–24, 2009, testified, among other things, that his home had been ransacked while he was away, and a medallion with a whale on it and a diving watch had been stolen. On March 20, 2009, a deputy sheriff saw Walker running in the neighborhood where the burglary occurred. The deputy chased and detained Walker. The whale medallion and stolen watch were recovered from a pocket in Walker’s jacket.

DISCUSSION

Walker contends the court abused its discretion when it refused to dismiss his prior strike conviction. We disagree.

Under section 1385, subdivision (a), a judge may, “in furtherance of justice, order an action to be dismissed.” In Romero, supra, 13 Cal.4th 497 the California Supreme Court held that “a trial court may strike or vacate an allegation or finding under the [“]Three Strikes[”] law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, ‘in furtherance of justice’ pursuant to... section 1385[, subdivision] (a).” (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) In deciding whether to strike a prior conviction, the relevant factors for the court to consider are “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.” (Williams, at p. 161; Romero, supra, 13 Cal.4th at p. 531.)

To gain reversal under Romero, supra, 13 Cal.4th 497, the burden is on the defendant to “‘clearly show that the [trial court's] sentencing decision was irrational or arbitrary.’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to show reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 978.) Nor is it enough to show that the trial court did not explicitly articulate all of the relevant factors when discussing a defendant's request to strike a prior conviction. “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

The trial court's decision is reviewed deferentially. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The “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.) 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, ” such as where the court was unaware of its discretion or considered impermissible factors. (Id. at p. 378.)

Walker maintains his prior strike should have been dismissed because he fell outside the spirit of the Three Strikes law in 2006 when, as an admitted member of a criminal street gang, he was found carrying a concealed weapon. He asserts he was not involved in any criminal activity at the time he was apprehended, and that the police merely happened upon him during their pursuit of other gang members. Walker did not raise this contention below. Rather, at sentencing, he argued he only that had not fully understood the import of his plea because his attorney was insufficiently familiar with the law, and because the prosecutor only mentioned the conviction qualified as a “strike” as an afterthought when he took his plea.

At the hearing, the court noted it had read and considered the motion and reviewed the transcript from the hearing at which Walker’s plea was entered in the 2006 case. The court considered those materials, and rejected Walker’s assertion. It concluded Walker was given an opportunity specifically to discuss the nature of the conviction with his counsel before entering his plea. That discussion was followed by an additional session in which “[t]he prosecutor... clearly explained the effect of the strike conviction to Mr. Walker and asked him if he understood”; Walker said he did and entered his plea. As a result, the court found Walker was “adequately informed about the nature of his prior conviction as a strike, ” and had unequivocally “replied that he understood, ” “never ask[ing] any other questions about the strike, ” or making “any other statements objecting to the strike.”

The Three Strikes law “establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike” unless the trial court deems the defendant falls outside the Three Strikes scheme. (People v. Strong (2001) 87 Cal.App.4th 328, 337.) Only under “extraordinary” circumstances may a trial court find a defendant “fall[s] 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.” (Id. at p. 338.) There is a “‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.)

On this record, we have no doubt that the court's decision did not “‘fall[ ] outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (Williams, supra, 17 Cal.4th at p. 162.) Nor is there any indication the court's ruling lacked impartiality or that the court considered improper factors. And, although Walker did not focus on this issue below, the nature of the current offense is a proper matter for consideration. His attempt to minimize the gravity of that offense does not render the court's contrary conclusion arbitrary or irrational. The conclusion that Three Strikes sentencing is warranted is supported by Walker’s criminal record, and his apparent inability to rehabilitate. (See People v. Strong, supra, 87 Cal.App.4th at p. 338 [“the overwhelming majority of California appellate courts have... affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career”].) Walker’s current offense, while not violent, constitutes a serious felony. (§ 1192.7, subd. (c)(18).) Even a relatively “minor” or nonviolent current offense will not, by itself, remove a felony from the Three Strikes scheme, because any felony can trigger a longer sentence under the scheme so long as the defendant has sustained at least one strike. (Strong, at pp. 343–344.)

Moreover, Walker, who was only 22 years old at the time the current offense was committed, has a criminal history dating back to 2002, when a juvenile petition was sustained based on his possession of a firearm (§ 12102, subd. (a)(1).) He was placed on probation for that offense. In November 2006, he suffered the felony conviction for carrying a concealed weapon discussed above, an offense admittedly committed for the benefit of a criminal street gang, and again given probation. Less than three months later, Walker was convicted of altering a vehicle registration. (§ 4463, subd. (a)(1).) Once again, he was granted probation. While still on probation, and with just six months until the term of that probation was complete, Walker committed the charged offense. In light of evidence Walker understood the ramifications of his 2006 conviction as a strike, and his continuing criminal history, the court determined he did not fall outside the spirit of the Three Strikes law. The trial court acted within its discretion in reaching this conclusion, and considered relevant factors in that regard. Walker has failed to demonstrate the trial court abused its discretion in refusing to dismiss the prior conviction.

Almost as an aside, Walker complains the trial court denied his motion “without any statement of reasons.” No statement of reasons is required when the trial court chooses not to exercise its discretion to strike a prior conviction. (In re Large, supra, 41 Cal.4th at p. 550 [trial court must explain its reasons for striking a prior conviction when sentencing a defendant subject to the Three Strikes law, but no similar requirement applies when a court declines to strike a prior].) In any event, this contention lacks merit. The trial court fully explained its reasons for rejecting the arguments Walker advanced below.

DISPOSITION

The judgment is affirmed.

We concur: MALLANO, P. J., CHANEY, J.


Summaries of

People v. Walker

California Court of Appeals, Second District, First Division
Feb 18, 2011
No. B223206 (Cal. Ct. App. Feb. 18, 2011)
Case details for

People v. Walker

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MAYNARD JOEL WALKER, JR.…

Court:California Court of Appeals, Second District, First Division

Date published: Feb 18, 2011

Citations

No. B223206 (Cal. Ct. App. Feb. 18, 2011)