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The People v. Larry Gene Prater

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 and two counts of being under the influence of a controlled substance in 2002. Finally, in 2004, he was convicted of possession of a controlled substance. Defendant's criminal record also includes several violations of parole.

The People also pointed out that defendant's statement in the probation report included a threat to his attorney and the prosecutor. As the probation officer explained in the report: "The thought of the impending state prison sentence made the defendant visibly angry. He stays up at night with [his attorney] and [the prosecutor] on his mind. He was not specific as to his thoughts. He stated 'they might as well charge him with 422 (terrorist threats).' 'Every month that goes by and he is in prison, [his attorney] is going to receive a post card.' He did not specify what would be written on the post card. At one point he made a reference to 'knowing people' and being capable of tampering with the gas tank of a vehicle. He did not say whose vehicle. The defendant stated 'that is the, pardon my language, that is the bitch in me. I am vengeful.'"

The trial court denied the motion. As the court explained: "I have looked at the factors that I must consider under Romero, including the nature and circumstances of the present offense, the nature and circumstances of the prior strikes, [defendant]'s background, [defendant]'s character, [defendant]'s prospects. [¶] [Defendant] cannot escape the history of his life. We have a situation where we have six prior prison terms. [Defendant] has been on parole, which has been revoked, I believe, fifteen times. [¶] Under any stretch of the imagination, [defendant] is what the three strikes law defines as a career criminal."

DISCUSSION

Defendant asserts that the trial court abused its discretion by refusing to strike his prior strike conviction under Romero. We disagree.

Under Penal Code section 1385, subdivision (a), a "judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." In Romero, our Supreme Court held that a trial court may utilize Penal Code section 1385, subdivision (a) to strike or vacate a prior strike conviction 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." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) Similarly, 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 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."' [Citations.] 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.'"' [Citations.] 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." (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)

We are also mindful that "'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.]" (People v. Carmony, supra, 33 Cal.4th at p. 377.) "[T]he 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." (People v. Williams (1998) 17 Cal.4th 148, 161; Carmony, at p. 377.)

Thus, the three strikes law "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, italics added.) This presumption will only be rebutted in an "extraordinary case--where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ." (Carmony, at p. 378.)

We cannot find that the trial court abused its discretion by declining to strike defendant's prior conviction.

We acknowledge that defendant's current felony conviction is relatively minor and his prior strike offense occurred roughly 26 years ago. We also acknowledge that defendant produced undisputed evidence that he had been sober for a three-year period preceding his current drug possession offense, resumed using alcohol and drugs due to stress induced by having to care for his terminally ill father and mentally ill mother, and had an admirable work record during his time on the path of sobriety. Nevertheless, given defendant's numerous criminal convictions and parole violations occurring between the strike offense and the current offense, including a fairly recent domestic violence conviction, and the evidence contained in the probation report of defendant's "'vengeful'" character, in the form of thinly veiled threats made against his attorney and the prosecutor, we cannot find that the trial court abused its discretion in finding that defendant fell within the spirit of the three strikes law.

Defendant's reliance on People v. Bishop (1997) 56 Cal.App.4th 1245, is misplaced. There, Bishop was convicted of petty theft with a prior and was found to have sustained three prior strike convictions. Despite several convictions between the strike offenses and the current offense, the trial court dismissed two of Bishop's strikes and sentenced him to 12 years in state prison as a one-strike offender. The trial court noted that the strikes were remote in time (17 to 20 years old), the current offense was nonviolent, and the penalty of 12 years would keep Bishop in prison for a significant period of time. (Id. at pp. 1247-1249.) The Court of Appeal affirmed, commenting: "Bishop is not a worthy member of society. . . . While the People and perhaps even this court may be of the opinion that Bishop appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude. Rather, what counts is what the trial court in this case concluded, as expressed by the reasons it stated under Penal Code section 1385, subdivision (a). On this record, we cannot say that the trial court's decision to dismiss two of Bishop's strikes in furtherance of justice constituted an abuse of discretion." (Bishop, at p. 1251.)

In this case, as defendant points out, his strike offense was remote in time, his current offense was nonviolent, and he would serve a lengthy prison sentence even without the strike because of the six one-year enhancements for his prior prison terms. And had the trial court chosen to dismiss defendant's strike in furtherance of justice, we might well affirm that decision as within the trial court's discretion. However, it is another matter entirely to conclude that the trial court abused its discretion by declining to dismiss defendant's prior strike. After considering the relevant factors, the trial court decided that defendant's extensive history of criminal conduct placed him squarely within the spirit of the three strikes law. This was not an abuse of discretion.

The trial court did not abuse its discretion by declining to strike defendant's prior conviction under Romero.

DISPOSITION

The judgment is affirmed.

We concur: BLEASE, Acting P.J. HULL, J.

20101227

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