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The People v. Bradley James Mcclung

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


March 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRADLEY JAMES MCCLUNG, DEFENDANT AND APPELLANT.

(Super. Ct. No. 62090395)

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

P. v. McClung

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Bradley James McClung pled guilty to battery with serious bodily injury and admitted a prior serious felony conviction in exchange for a sentencing lid of four years. The court declined defendant's request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his prior strike conviction and sentenced him to four years in state prison.

Defendant appeals the court's denial of his Romero motion as an abuse of discretion. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

G. J., an employee of Wal-Mart, was in one of the stalls in the men's restroom when he heard defendant enter the restroom. Assuming defendant was another employee, G. J. hit the wall of the stall and said, "teamwork." Defendant, who by then was standing outside of G. J.'s stall, asked if G. J. wanted some toilet paper. G. J. again said, "teamwork." Defendant kicked the wall of the stall several times and yelled, "'You want toilet paper, asshole?'" He then kicked in the stall door, slamming it into G. J.'s head and knees. Defendant stood over G. J. and twice said, "'Get up, asshole. I'm gonna kick your motherfucking ass.'" When an employee exited another stall, defendant left the restroom and was apprehended shortly thereafter in the parking lot outside the store. G. J. suffered head, neck and knee pain, and sustained a laceration to the top of his head which required six staples.

Defendant was charged in case No. 6290395 (the Wal-Mart case) with battery resulting in serious bodily injury. The complaint alleged the offense was a serious felony and that defendant had a prior serious felony conviction arising out of two burglaries committed in 2003.

Approximately four months later, while the Wal-Mart case was pending, defendant got into an argument with his girlfriend, J. H., who was then eight and one-half months pregnant. Defendant pushed J. H. onto a couch and used his weight*fn1 to hold her down while he yelled and screamed at her. A roommate tried without success to pull defendant off J. H. Defendant finally got up and walked outside, only to return and kick the door open, breaking it off its hinges. Defendant was arrested and charged in case No. 6294202 (the domestic case) with misdemeanor domestic battery. (§ 243, subd. (e)(1).)

Defendant pled guilty to the charges in both cases and admitted a prior strike in exchange for a four-year sentencing lid. He filed a Romero motion requesting that the court strike the prior strike conviction. The People filed a statement in aggravation and opposition. Defendant was 18, homeless, and addicted to drugs at the time of the prior offense. He attempted to gain access to a residence, knowing the owner was not home, but was unsuccessful. He found a nearby home that he knew to be unoccupied, entered through an open side door, and stole "a bottle of alcohol, a bottle of [V]icodin, and some loose change." He was arrested shortly thereafter and charged with two counts of felony burglary. Defendant pled guilty to one of the felonies as a strike, but "was permitted to plead to one of his felonies as a non-strike." He was also "given the opportunity through probation to address his substance abuse issues[] and . . . had a chance to withdraw his plea to the first degree burglary charge if he successfully completed probation. He was unable to do so as he was arrested on a violation of probation in 2005."

The court denied defendant's Romero motion and sentenced him to the low term of two years, doubled pursuant to the prior strike.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends the trial court abused its discretion in failing to strike his strike prior. We disagree.

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 sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can stand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377.) In making this determination, the court should consider "the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (People v. Williams (1998) 17 Cal.4th 148, 160-161.)

"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under [Pen. Code,] section 1385 is subject to review for abuse of discretion." (People v. Carmony, supra, 33 Cal.4th at p. 375.) In the context of sentencing decisions, "a 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.) Where the 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]." (Id. at p. 378.)

Here, the trial court was well aware of its discretion to strike defendant's prior strike and did not abuse that discretion in refusing to do so. Noting that the case was "a difficult one," the court considered the fact that defendant had been given a "significant benefit" in the prior case by avoiding a second strike and being given the opportunity to withdraw the plea to the prior strike upon successful completion of probation, but subsequently violated probation and later committed a "senseless act of violence, where somebody was seriously injured." While not convinced defendant was the kind of "career criminal" the drafters of the three strikes law contemplated, the court was nonetheless persuaded that, having squandered the "break that he got with the initial offenses" and having elevated his recent crimes to acts involving violence, defendant did not fall outside the spirit of the three strikes law.

Defendant contends the court's denial of his Romero motion was arbitrary and unreasonable because it did not take into account the fact that his criminal behavior stems from an alcohol addiction which he has addressed in the past, he is not "'an exemplar of the "revolving door" career criminal to whom the Three Strikes law is addressed,'" and his prospects for becoming a productive member of society are "quite good." The record demonstrates otherwise.

Defendant's efforts in drug and alcohol rehabilitation were detailed in the probation report and in his Romero motion, and argued by defense counsel at sentencing. He began treatment for alcohol and drug use at the age of 17 and continued off and on over many years, successfully completing a six-month treatment program but getting terminated from three others. During that span of time, there were periods during which he made positive steps in his life (e.g., obtained employment, attended AA) and remained drug and alcohol free, only to use again when circumstances presented the opportunity or difficult situations led him to indulge.

We have previously held that "[a]lcoholism or drug addiction may be regarded as a 'mental or physical condition'; but a separate finding that the condition significantly reduced culpability or partially excused the conduct must be made. Where those or any other substance abuse problems are out of control, the defendant either engages in crime to support his substance abuse habit, or uses that habit as an excuse or explanation for continued criminal conduct, and the defendant shows little incentive or ability to change, the substance abuse habit does not 'significantly reduce' his culpability for the crime, nor does it make the criminal conduct 'partially excusable.'" (People v. Reyes (1987) 195 Cal.App.3d 957, 963-964, fn. omitted.) Here, defendant committed the prior burglaries to support his drug and alcohol abuse and claims the current violent offenses would not have happened had he not been under stress and abusing alcohol. While defendant has shown some incentive to change by his participation in and completion of the six-month residential treatment program, he has not yet demonstrated that he has the ability to achieve and sustain change.

Defendant urges that he is among those defendants who have "made a serious effort to cope with their substance abuse problems but . . . committed a crime during a time of relapse," thus justifying consideration of a lower term. (People v. Reyes, supra, 195 Cal.App.3d at p. 964.) However, the trial court concluded significant weight was to be given to the fact that defendant failed to avail himself of the substantial benefit given him when he entered his plea in 2003 for the nonviolent burglaries, and that his new crimes committed showed a progression toward violence, thus justifying the denial of the request to strike the strike prior.

Defendant claims his criminal history demonstrates that he is not a habitual criminal who remains a permanent threat to society, and his prospects for becoming a productive member of society are "quite good." While defendant's criminal past may pale in comparison to those "career criminals" who present with a lengthy laundry list of offenses, his history is significant in that the severity of the crimes he committed increased dramatically from nonviolent to violent. While the steps defendant has taken to remain sober and become a productive member of society (e.g., attending community college, attending a work therapy program, renting an apartment, obtaining employment) are laudable, they are not unlike the steps he has taken over years with the same goal in mind and which have repeatedly resulted in a return to alcohol and drug abuse and increasingly violent criminal activity.

The trial court, well aware of its discretion, balanced the relevant facts and reached an impartial decision in conformity with the spirit of the three strikes law. There was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

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


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