IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
March 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD VINCENT ROOD, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F7628)
The opinion of the court was delivered by: Robie , Acting P. J.
P. v. Rood 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is a three strikes case in which defendant Richard Vincent Rood challenges his 36 years-to-life prison sentence. He claims the court: (1) abused its discretion in not dismissing one or both of his strikes; and (2) erred in imposing a one-year prior prison term enhancement pursuant to Penal Code*fn1 section 667.5, subdivision (b). As to his first claim, there was no abuse: defendant was a 38 year old with an untreated drug and alcohol problem whose criminal behavior began in his youth, continued unabated, and included the current crime of residential burglary while a teenager was home alone. As to his second claim, we agree, as do the People, that the one-year enhancement must be stricken because the sentence for the prior conviction underlying the enhancement was stayed.
I The Three Strikes Sentence
Defendant's current crime took place in September 2009 when he broke into a house where a 15-year-old girl was home alone. The girl hid in the office and called her mother on the telephone to alert her someone was in the house. Meanwhile, defendant went into the girl's bedroom and took her "MP3 player." Within five minutes of being called, the mother returned home to find defendant in her backyard and confronted him. He fled in his truck. A jury found him guilty of residential burglary, which is a strike.
Defendant had two other strikes and was therefore subject to a minimum sentence of 25 years to life in prison. He argued the trial court should dismiss his prior strikes. The trial court refused, finding defendant did not "fall outside the spirit of the three strikes law." On appeal, defendant contends this was an abuse of discretion because his current offense did not involve violence, weapons, or injuries, his prior strikes were "remote," his prior offenses were "minor," and "'drug use and alcohol use . . . led [him] to . . . mak[e] bad choices.'"
There was no abuse because the court's decision was well within the bounds of reason. (People v. Williams (1998) 17 Cal.4th 148, 162 [standard of review].) Defendant's criminal conduct began when he was a juvenile, continued into adulthood, and included multiple periods of incarceration, some for major crimes. In 1986, he was found to have committed burglary and petty theft and engaged in lewd or dissolute conduct in a public place, resulting in a juvenile wardship. Five years later, as an adult, he was convicted of battery, petty theft with a prior, trespass, vandalism, and being under the influence of an intoxicating substance while in public. He served time in jail and was placed on probation. One year later, in 1992, he was convicted of petty theft and his first strike, i.e., first degree burglary. He served more time in jail and was continued on probation. In 1993, he violated probation and was sentenced to prison for four years. In 1995, he was convicted of petty theft with a prior and violated his parole, resulting in more jail time. In 1996, he was convicted of being under the influence of an intoxicating substance, violating parole, and violating a Shasta County ordinance prohibiting the taking of salmon from an area closed to salmon fishing. He served more jail and prison time. In 1997, he violated parole again and was convicted of second degree burglary, receiving stolen property, and his second strike, i.e., first degree burglary, resulting in a 13-year prison sentence. In 2008, he was convicted of reckless driving while intoxicated and was found to have violated parole twice. In early 2009, before his current offense, he was found to have violated parole yet again.
On this record, it was reasonable the court gave "little weight" to the remoteness of his prior strikes "in light of [his] continued criminal conduct." Furthermore, contrary to defendant's assertion that his crimes were "minor," as we have recounted they included a prior residential burglary along with the current burglary in which he broke into an inhabited home, conduct which carried with it the possibility that someone could be injured, regardless of whether defendant himself was armed. Finally, rather than being a mitigating factor, defendant's unchecked drug use*fn2 that played a role in his criminal conduct weighed against dismissing a strike. On this record, there was no abuse.
II The Prison Term Enhancement
Turning to defendant's second contention, defendant argues the one-year prior prison term enhancement under section 667.5, subdivision (b) must be stricken because the sentence for the prior conviction (the 1997 second degree burglary) underlying the enhancement had been stayed. Under section 667.5, subdivision (b), the court must "impose a one-year term for each prior separate prison term served for any felony." A prison term is not served for purposes of section 667.5 if it is stayed under section 654. (People v. Percelle (2005) 126 Cal.App.4th 164, 178.) Because defendant did not serve a prison term for the 1997 second degree burglary conviction, the one-year enhancement must be stricken.
The prior prison term enhancement imposed pursuant to section 667.5, subdivision (b) is stricken. As modified the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this change and the resulting one-year decrease in his sentence and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
BUTZ , J.
HOCH , J.