Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 056670, 057342, 060348, 061074, 071202, 073808
HULL, J.
Defendant entered negotiated pleas of no contest to six counts of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and one count of receiving stolen property (Pen. Code, § 496, subd. (a)), and admitted an enhancement for a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). All other charges were dismissed. Defendant was sentenced to an aggregate term in state prison of nine years four months.
He appeals, contending the trial court abused its discretion in denying his motion to strike the prior conviction enhancement. Defendant further contends the abstract of judgment must be amended to reflect his presentence credits and to correct an erroneous description of one of the offenses. We find no error in the denial of defendant’s motion to strike but agree the abstract of judgment must be amended as indicated.
Facts and Proceedings
In light of defendant’s no contest pleas, the facts are taken from the probation report.
On October 24, 2005, defendant and several of his friends used methamphetamine. Later, defendant and two others drove to a home in Davis, where they attempted to take a bicycle from an open garage but were unsuccessful in fitting it in their car. They drove to an apartment complex, where one of the others stole some items from a car. Later, police observed defendant and the others in the car with various stolen items in plain view, including a stereo, purse and necklace. The victim later identified the stolen items and explained she had left them in her unlocked car.
Defendant was charged in case No. 05006670 with two counts of burglary (Pen. Code, § 459), receiving stolen property (id., § 496, subd. (a)), petty theft (id., §§ 484, subd. (a), 488), possession of burglary tools (id., § 466), possession of a hypodermic needle (Bus. & Prof. Code, § 4140), and possession of drug paraphernalia (Health & Saf. Code, § 11364). He was also charged with an enhancement for a prior serious felony conviction under the three strikes law.
On November 24, 2005, during a probation search of defendant’s home, the police found methamphetamine, a syringe, a hydrocodone pill, and a.22-caliber bullet.
Defendant was charged in case No. 05007342 with possession of a controlled substance for sale (Health & Saf. Code, § 11378), two counts of maintaining a place for illegal drug activity (id., § 11366), two counts of unlawful possession of a controlled substance (id., § 11350, subd. (a)), possession of ammunition by one not permitted to possess a firearm (Pen. Code, § 12316, subd. (b)(1)), possession of a controlled substance (Health & Saf. Code, § 11377), and two counts of possession of a hypodermic needle (Bus. & Prof. Code, § 4140). He was also charged with enhancements for committing some of the offenses while released on bail (Pen. Code, § 12022.1, subd. (b)) and for a prior serious felony conviction under the three strikes law.
On December 23, 2005, defendant was stopped for a traffic violation and was found to be under the influence of a controlled substance. He was removed from his car. The arresting officer found a baggie of methamphetamine four to five feet from where defendant was standing.
Defendant was charged in case No. 06000348 with transportation or sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), possession of a controlled substance (id., § 11377, subd. (a)), and using or being under the influence of a controlled substance (id., § 11550, subd. (a)), with enhancements for committing the offenses while released on bail and for a prior serious felony conviction under the three strikes law.
On February 19, 2006, defendant was found passed out in his car and fire department personnel later observed defendant trying to hide a baggie in the waistband of his pants. The police were called and located.47 grams of methamphetamine.
Defendant was charged in case No. 06001074 with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and an enhancement for having committed the offense while released on bail.
On February 27, 2007, defendant was stopped for a traffic violation and showed signs of being under the influence of a controlled substance. Methamphetamine was found in his car.
Defendant was charged in case No. 07001202 with transportation or sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), with an enhancement for a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), receiving stolen property (Pen. Code, § 496, subd. (a)), and using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). He was also charged with enhancements for a prior serious felony conviction (Pen. Code, § 667.5) and a prior serious felony conviction under the three strikes law (id., § 667, subds. (c) & (e)(1)).
On July 4, 2007, defendant was stopped for a traffic violation and showed signs of being under the influence of a controlled substance. At the time, the passenger in the car was holding a bag containing.32 grams of methamphetamine and a syringe.
Defendant was charged in case No. 07003808 with transportation or sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), with enhancements for a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)) and being released on bail at the time of the offense, possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), with an enhancement for being released on bail at the time of the offense, using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and resisting arrest (Pen. Code, § 148, subd. (a)(1)). He was also charged with an enhancement for a prior serious felony conviction under the three strikes law.
As noted above, defendant entered negotiated pleas of no contest in all of the cases to six counts of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and one count of receiving stolen property (Pen. Code, § 496, subd. (a)), and admitted an enhancement for a prior serious felony conviction under the three strikes law, subject to his right to bring a motion to strike the prior strike allegation. All other charges were dismissed.
The court thereafter denied defendant’s motion to strike the prior serious felony conviction enhancement and sentenced him to an aggregate term of nine years four months in state prison.
Discussion
I
Romero Motion
Defendant contends the trial court abused its discretion in denying his motion to strike the prior conviction enhancement. He argues “[t]he nature and circumstances of his present felonies and prior strike conviction, and the particulars of his background, character, and prospects, place [him] wholly or--at the very least--partially outside the spirit of the Three Strike’s [sic] law.”
Penal Code section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, “and in furtherance of justice,” to order an action dismissed. (Pen. Code, § 1385, subd. (a).) In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the California Supreme Court held a trial court may utilize Penal Code section 1385 to strike or vacate a prior strike for purposes of sentencing under the three strikes law, “subject, however, to strict compliance with the provisions of [Penal Code] section 1385 and to review for abuse of discretion.” (Romero, at p. 504.) Likewise, a trial 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.)
In ruling on a Romero motion, the trial 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 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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Dismissal of a strike is a departure from the sentencing norm. Therefore, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified where the trial court was unaware of its discretion to strike a prior strike, or refused to do so at least in part for impermissible reasons. (Id. at p. 378.) But where the trial court, aware of its discretion, “‘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, even if we might have ruled differently in the first instance’ [citation].” (Ibid.)
In support of his claim the trial court abused its discretion, defendant points out the trial court itself mentioned defendant’s circumstance is exceptional because, unlike most methamphetamine addicts, he has the support of a wife and family. Defendant also notes the probation report concluded he may be able to do well in society with proper treatment and supervision and, by the time of his Romero motion, defendant had already completed one substance abuse program and was participating in another.
Defendant further argues his background suggests this is an exceptional case warranting dismissal of the strike. According to defendant: “Mental illness and substance dependency ran in his family. [Citation.] His childhood provided him meager tools for healthy development: his father was an alcoholic, his parents separated, his step-father was abusive, he was sexually abused by a babysitter, he suffered several head injuries, and he was physically abused by siblings and schoolmates.”
Defendant argues the nature and circumstances of his current offenses and the strike offense place him outside the spirit of the three strikes law. According to defendant, all of his current offenses are related to his drug use and none of them involved violence or a threat of violence. Defendant acknowledges the strike offense--lewd and lascivious conduct with a child--is certainly serious, but he argues it is not related to his current offenses and “appeared to be a single instance of aberrant behavior linked to his drug use.” (Fn. omitted.)
All of the foregoing was laid out to the trial court by defense counsel. In denying defendant’s motion, the court explained:
“Well, the empathy side of me wants to give him yet another chance. It really does. Most meth addicts don’t have the support of a wife, don’t have [the support] of a family, and he clearly does. So from that aspect I have a lot of empathy and I would like to give him another chance.
“But I don’t think he is at the crossroads of his life. I think he’s well past his crossroads. He has a lengthy criminal record. He has six cases here he’s being sentenced on. He’s well down the road that he’s chosen.”
At that point, defense counsel interrupted to explain that defendant’s mental disorder had not been diagnosed until the current offenses and so defendant never had an opportunity to address his problem. The court continued:
“Well, I understand, but it needed to be dealt with long before now. He has a long record, long before these six cases.
“I am not being critical of his parents or anybody else. I am just simply saying somebody, if he couldn’t do it, somebody needed to help him long before now. He’s well past that crossroads of life.
“It is that classic, you know, too little too late. He’s finally gotten to the point where he realizes there is no other alternative, and now he wants to make the crossroads. It is just too late.
“I agree with Probation’s analysis that I cannot, in good conscience, strike the strike as much as I would personally like to. I have the empathy and would like to do it, but in all good conscience, I just can’t do that.”
The court then went on to explain that, even if it granted the motion to strike, it would not grant probation because this is not such an unusual case as to justify it.
It is obvious from the foregoing the trial court understood its discretion to grant the motion to strike but concluded this case does not warrant such extraordinary action. Notwithstanding defendant’s recent attempts at rehabilitation, the court concluded this was too little too late. Defendant has a criminal record stretching back to 1994, when he was convicted of receiving stolen property. This was followed by other offenses in 1994, 1995, 1996 and 1997. In 1998, he was sent to state prison. Following his release on parole, defendant violated parole four times between 2001 and 2004.
The three strikes law establishes sentencing norms and “creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) This presumption will only be rebutted in an “extraordinary case--where the relevant factors described in [People v.] Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) However, “[w]here the record is silent [citation], or ‘[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, even if we might have ruled differently in the first instance’ [citation].” (Ibid.)
The record here demonstrates the trial court exercised its discretion and concluded this is not such an extraordinary case as to warrant dismissal of the strike. Under the facts and circumstances presented, we cannot say this conclusion is “so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.) We therefore find no abuse of discretion.
Defendant contends that, assuming the court did not abuse its discretion in refusing to dismiss the strike prior altogether, the court nevertheless abused its discretion “when it declined to dismiss at least some of the strikes in the furtherance of justice or to sentence some of the wobblers as misdemeanors.” However, beyond citing the court’s authority to strike the strike finding as to some of the offenses and to sentence some of the wobbler offenses as misdemeanors, defendant provides no further argument regarding this contention. He does not even identify which offenses warranted exceptional treatment. Where a point is raised in an appellate brief without argument or legal support, “it is deemed to be without foundation and requires no discussion by the reviewing court.” (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)
II
Presentence Credits
Defendant contends the trial court failed to award presentence credits. At the conclusion of the sentencing hearing on April 3, 2008, the court indicated it did not have an updated calculation of defendant’s presentence credits. The probation report listed 37 actual and 18 conduct credits through December 11, 2007. The court indicated it would ask the probation department to provide a memorandum of credits through the date of sentencing, to be filed by May 2. However, the record contains no such memorandum. The abstract of judgment does not list any presentence credits.
The People concede error and ask that presentence credits be updated, either through remand or through whatever course we deem appropriate.
There is nothing in the record that would allow us to calculate presentence credits and amend the judgment accordingly. We must therefore remand to the trial court to do so.
III
Description of Offense
Defendant contends the abstract of judgment incorrectly identifies one of the offenses to which he pleaded no contest as first degree burglary, when in fact the offense was receiving stolen property. The People concede the abstract of judgment must be corrected accordingly, and we agree.
Disposition
The judgment is affirmed. The matter is remanded to the trial court (1) to determine presentence credits through April 3, 2008, (2) to amend the abstract of judgment to include presentence credits, (3) to amend the abstract of judgment to reflect defendant’s conviction for receiving stolen property rather than first degree burglary, and (4) to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., NICHOLSON, J.