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The People v. Larry Gene Prater

December 27, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LARRY GENE PRATER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 100320)

The opinion of the court was delivered by: Robie, J.

P. v. Prater CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Larry Gene Prater was found guilty by a jury of possession of heroin and possession of methamphetamine. The jury also found that defendant previously had been convicted of a strike offense within the meaning of the three strikes law and that he had also served six prior prison terms. Following an unsuccessful motion to strike defendant's strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court sentenced him to an aggregate term of eight years eight months in state prison and imposed other orders.

Defendant's sole contention on appeal is that the trial court abused its discretion by refusing to strike his prior strike conviction under Romero. We disagree and affirm the judgment.

BACKGROUND

In January 2010, shortly after midnight, police were called to a house in West Sacramento where they found defendant asleep in a sedan parked in front. One of the officers opened the car door and ordered defendant to put his hands up. When defendant did not comply, he was removed from the vehicle. Defendant was then asked whether he had anything in his possession that would stick the officer during a search. Defendant responded that he had a "hype," meaning hypodermic needle, in his left pocket. This needle, which appeared to have been used, was removed from defendant's pocket. In the same pocket, police found a plastic baggie containing 0.04 grams of methamphetamine. Defendant was taken to the Yolo County Jail, where he was searched by police officers. A plastic baggie containing 0.21 grams of heroin was found in defendant's right shoe.

Defendant was found guilty by a jury of one count of possession of heroin and one count of possession of methamphetamine. The jury also found that defendant had been previously convicted of a strike offense within the meaning of the three strikes law and that he had served six prior prison terms.

Defendant moved to strike his prior strike conviction pursuant to Romero. In support of the motion, he argued that his current offense involved possession of a small amount of drugs, and that his prior strike, a 1984 robbery conviction, was remote in time. While defendant acknowledged that "he has not led a crime-free existence since being sent to prison for the 1984 conviction," he also argued that he had been sober for over three years prior to his arrest for the current offense and would be "willing and able to undergo comprehensive drug treatment."

At the hearing on the motion, defendant's previous employer at True Value Hardware, John Camacho, testified that defendant was hired in 2005 as a temporary employee, and again from May 2007 to March 2009 as a full-time associate. According to Camacho, defendant was "extremely hard working" and a "self starter who knew how to get things done accurately and efficiently." He consistently rated above average on performance reviews, had a "go-getter attitude," and "was a top donor [to the United Way] in the two years he contributed." Camacho also testified that defendant cared a lot about his family, and that he "heard quite a bit about [defendant's] granddaughter."

Linda Satterburg, a mental health and drug and alcohol counselor from defendant's church, testified that defendant had been clean and sober for three years "until he had some major dramatic experiences caused by family trauma." She explained that when defendant got out of prison, he entered a six-month treatment program at Cache Creek Lodge, a residential treatment facility in Woodland, and completed another year at the facility while he worked at True Value. Defendant left the program in 2009 because his father was diagnosed with terminal cancer and also suffered from Alzheimer's disease. He felt that he needed to leave the program to care for his father because his mother was too mentally ill to properly care for him. According to Satterburg, the burden of "supporting two whole households, his wife and his granddaughter and daughter and also his mother and father," caused defendant to feel "overwhelmed" and resume his drinking. She also testified that defendant's inability to afford certain prescription medication once he left his job to care for his father contributed to his return to drug abuse.

Defendant's pastor also testified that defendant had been doing "very, very well" at Cache Creek, but left the treatment facility because he felt the need to take care of his parents.

The People opposed the motion to strike defendant's prior strike conviction, pointing out that defendant had been convicted of several felonies since his strike offense. Indeed, defendant's criminal history begins when he was a juvenile with burglary and theft. As an adult, defendant was convicted of petty theft in 1982. In 1984, he was convicted of robbery. Defendant was convicted of vandalism in 1985. In 1987, he was convicted of petty theft with a prior. Defendant was convicted of the attempted taking or driving of a vehicle in 1989. In 1990, he was convicted of being under the influence of a controlled substance. Defendant was convicted of two separate counts of petty theft with a prior in 1996. In 2001, he was convicted of one count of being under the influence of a controlled substance. Defendant was convicted of one count of willful infliction of corporal injury on a spouse ...


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