IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Tehama
July 8, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JERAME WAYNE CLARK, DEFENDANT AND APPELLANT.
(Super. Ct. No. NCR79035)
The opinion of the court was delivered by: Hull J.
P. v Clark 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 entered a negotiated plea of guilty to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) and driving with a blood alcohol level of 0.08 or greater (Veh. Code, § 23152, subd. (b)) and admitted a prior strike within the meaning of the three strikes law (Pen. Code, § 1170.12, subds. (b)-(d)). Four other charges were dismissed. Sentenced to state prison for six years, defendant appeals, contending the trial court erred in considering the facts of a dismissed charge at sentencing and in denying his motion to dismiss the prior strike. We affirm the judgment.
FACTS AND PROCEEDINGS
In light of defendant's guilty plea, the facts are taken from the preliminary hearing.
On April 17, 2010, at approximately 2:20 a.m., Sergeant Dave Kain of the Tehama County Sheriff's Department saw a car drive off the right portion of a road while making a turn and then drive into the opposite lane of traffic while making another turn. He stopped the car.
Defendant was driving the car. When Sergeant Kain came up to the car, he noticed the odor of alcohol and saw that defendant's eyes were bloodshot and watery. Kain told defendant to step out of the car and noticed defendant's gait was unsteady and he had alcohol on his breath. Kain asked defendant if he had any weapons on him and defendant told him he had a knife in a sheath strapped to defendant's right ankle. As Kain took the knife, he saw defendant make a throwing motion with his left hand and saw a piece of tissue fly through the air. Kain picked up the tissue and found that it contained a usable amount of marijuana.
At this point, Sergeant Kain arrested defendant and conducted a more thorough search. He discovered a baggie sticking out of defendant's left sock that contained 1.85 grams of psilocybin. Defendant was taken to a hospital and his blood was drawn. His blood alcohol level was determined to be 0.11.
Defendant was charged with three felonies: possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), transportation of a controlled substance (id., § 11379, subd. (a)), and carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)). On each felony, defendant was also charged with a prior strike (id., §§ 459, 1170.12, subds. (b)-(2)), to wit, a 1999 first degree burglary, and a prior felony for which he served a term in prison (id., § 667.5, subd. (b)). Defendant was also charged with three misdemeanors: driving under the influence (Veh. Code, § 23152, subd. (a)), driving while his license was suspended or revoked (id., § 14601.1, subd. (a)), and driving with a blood alcohol level of 0.08 or higher (id., § 23152, subd. (b)).
Defendant entered a negotiated plea of guilty to transportation of a controlled substance and driving with a blood alcohol level of 0.08 or higher. He also admitted the prior strike. All other charges were dismissed.
Defendant moved to strike the prior in the interest of justice. The motion was denied.
Defendant was sentenced on the drug offense to the middle term of three years, doubled to six under the three strikes law. He received a concurrent term of one year on the Vehicle Code violation.
I Use of Facts from Dismissed Count
At sentencing, defendant asked for imposition of the mitigated term on the drug offense. The trial court instead imposed the middle term. The court explained: "[T]his is not a Defendant who has not gotten his second chance. The Defendant has had numerous chances, and frankly just has not made good use of those chances for whatever reason. Whether he could comply with conditions of probation or could not, whether he could comply with parole or could not, the fact of the matter is he didn't." The trial court indicated it was rejecting a mitigated term for much the same reasons it had earlier denied defendant's motion to strike the prior strike. One of the reasons mentioned at that time was defendant's possession of a weapon at the time of the current offenses.
Defendant contends it was error for the trial court to consider the fact he was armed with a knife at the time of his arrest in determining what sentence to impose. Defendant argues the court was not permitted to consider this fact in light of dismissal of the charge for carrying a concealed dirk or dagger as part of the plea agreement. We disagree.
Absent an effective waiver, facts relating to an independent count which is dismissed as part of a plea bargain may not be considered in determining the sentence to be imposed. (People v. Harvey (1979) 25 Cal.3d 754, 758.) However, the facts of a dismissed count may be considered if those facts are transactionally related to the crime of which the defendant is convicted. (People v. Cortez (1980) 103 Cal.App.3d 491, 496.) As the Court of Appeal explained in People v. Guevara (1979) 88 Cal.App.3d 86, "[a] plea bargain does not, expressly or by implication, preclude the sentencing court from reviewing all the circumstances relating to [the defendant's] admitted offenses to the legislatively mandated end that a term, lower, middle or upper, be imposed on [the defendant] commensurate with the gravity of his crime." (Id. at p. 94.)
In People v. Bradford (1995) 38 Cal.App.4th 1733 (Bradford), growing marijuana plants were found in a compound occupied by the defendant and others and two shotguns were found in a cabin containing identification belonging to the defendant. The defendant entered a negotiated plea of guilty to cultivation of marijuana and vehicle theft, and other charges, including one for possession of a deadly weapon and a charge that the defendant was armed in connection with the cultivation charge, were dismissed. The court imposed the upper term based in part on the defendant's possession of two firearms. (Id. at pp. 1735-1737.)
On appeal, this court rejected the defendant's argument that the trial court erred in considering the presence of firearms in the cabin in imposing sentence. We explained: "[D]efendant's loaded shotguns were found in his cabin in a compound dedicated to the cultivation of marijuana. It is undisputed that defendant knew of the presence of the weapons. Nothing suggests the weapons were there by accident. Finally, the record permits the fair inference that defendant was present in his cabin with the weapons at some point during the process of cultivating the marijuana nearby. The record therefore contains substantial evidence showing defendant was armed with the shotguns during the cultivation offense, so that defendant's possession of the weapons was transactionally related to the offense." (Bradford, supra, 38 Cal.App.4th at p. 1739.)
Defendant contends the facts of the present matter are similar to those in People v. Berry (1981) 117 Cal.App.3d 184 (Berry), where a pistol was found under the driver's seat when the defendant was stopped while driving a stolen vehicle. The defendant entered a negotiated guilty plea to vehicle theft and weapon charges were dismissed. However, the trial court used the presence of the weapon as an aggravating factor at sentencing. (Id. at pp. 190, 193-194.) The Court of Appeal indicated the question whether the firearm possession was transactionally related to the vehicle theft was a close one, but ultimately concluded it was not. According to the court: "There is nothing to show that the defendant used the pistol to obtain or retain possession of the vehicle. He did not drive the vehicle while brandishing the weapon. The vehicle merely served as a container for it." (Id. at p. 197.) In other words, possession of the stolen vehicle and possession of the weapon were unrelated crimes that just happened to coincide.
In Bradford, we distinguished Berry by virtue of the offense of which the defendant pleaded guilty. We explained that "whatever might be said of vehicle theft, it is common knowledge that perpetrators of narcotics offenses keep weapons available to guard their contraband." (Bradford, supra, 38 Cal.App.4th at p. 1739.)
Likewise, in the present matter, defendant was convicted of a drug offense and the trial court could reasonably conclude the presence of the knife was intended by defendant to guard his contraband. Hence, it was transactionally related to that offense and could be considered at sentencing.
II Motion to Dismiss Prior Strike
Defendant contends the trial court abused its discretion in denying his motion to dismiss the prior strike, which occurred 11 years before the present offenses. Defendant argues the record does not show he has become a worse offender over time. During the 11 years since the strike offense, his offenses have been nonviolent misdemeanors. According to defendant, "[t]he only factor that might suggestion [sic] violence was his possession of a knife, which offense was dismissed and which, as discussed above, should not have been considered."
Penal Code section 1385 gives a sentencing court discretion to dismiss a prior strike allegation. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) However, dismissal of a strike is a departure from the sentencing norm. "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 the 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 (2004) 33 Cal.4th 367, 376-377.)
In light of the applicable presumption, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]." (People v. Carmony, supra, 33 Cal.4th at p. 378.) Discretion is also abused where the trial court's decision not to strike a prior strike is not in conformity with the "spirit" of the three strikes law. (People v. Philpot (2004) 122 Cal.App.4th 893, 905.)
In the present matter, the trial court gave the following reasons for denying defendant's motion to strike the prior strike: "The Defendant has an extensive juvenile record. That juvenile record includes an adjudication for first degree burglary, which coincidentally was also the strike conviction in 1999.
"The Defendant was committed to State Prison for the strike allegation. It is 11 years old. However, it's noted that the Defendant served a rather lengthy period in State Prison. It is noted that at the time of that conviction the Defendant had two other felonies.
"Defendant, after release, had four parole violations: 2003, 2004, 2006, 2007. The Defendant has four convictions, including for 2800.2 of the Vehicle Code and 23152 of the Vehicle Code, all which suggest that the Defendant may be a danger to others. At the time the Defendant committed this offense he was armed with a knife.
"The Defendant indicates that he wants treatment. But the Defendant had to know long before now that he had issues that he needed to address. The Defendant has been on probation numerous times. The Defendant has been presumably, unless he has violated probation, to the driving-under-the-influence program. I believe the Probation Officer's report indicates that he has had drug treatment.
"The fact of the matter is, except for when the Defendant was in prison, the Defendant has at least one conviction or adjudication every year since 1997, with one exception, which is 2009, which may be a good sign since that's the latest year. But it just is not a good enough sign to overcome the Defendant's past.
"The Defendant in this Court's view does fit within the spirit of the Three Strikes law, particularly when it is a two-strike rather than a three-strike 25-years-to-life.
"And for those reasons, the motion is denied."
As explained in the preceding section, the trial court properly considered the fact defendant was armed with a knife at the time of the current offenses. That fact is transactionally related to the drug offense. Hence, the trial court did not consider impermissible factors. Nor, obviously, did the court fail to recognize its discretion. Thus, the only question is whether the failure to strike is not in conformity with the spirit of the three strikes law. This determination turns on "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.)
In this matter, as the trial court explained, defendant's criminal record is one in which he has persisted in committing crimes despite having spent considerable time in prison. And while it is true defendant's crimes have not become increasingly more dangerous, we are not aware this is a prerequisite to application of the three strikes law. At any rate, the fact defendant has not committed another serious or violent felony since his 1999 conviction is already reflected in the fact he was sentenced as an offender with one strike rather than two.
The record shows the trial court considered whether defendant was outside the spirit of the three strikes law in light of the nature and circumstances of the present felony, his prior serious felony conviction, and his background, character, and prospects. Having reviewed the same information, we conclude the court did not reach its conclusion arbitrarily or irrationally.
The judgment is affirmed.
We concur: NICHOLSON Acting P. J. MURRAY J.
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