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The People v. Trent Wayne Swisher

November 29, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TRENT WAYNE SWISHER, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF090380)

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

P. v. Swisher

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Trent Wayne Swisher was convicted of evading a police officer and driving with a revoked license. He contends on appeal that the trial court abused its discretion in denying his request to dismiss a prior strike conviction for mayhem, because the trial court failed to consider his background, character and prospects.

We conclude that the trial court did not abuse its discretion in denying defendant's request to dismiss the prior strike conviction. The trial court considered defendant's criminal history and the information in the probation report. In addition, the trial court considered defendant's background, character and prospects in denying a previous request to dismiss the strike, but in making the second request, defendant failed to show that there were changed circumstances.

We will affirm the trial court's order.

BACKGROUND

Officer Ryan Piercy was on patrol in a marked vehicle when he observed defendant driving a white Nissan. As Piercy turned to follow the Nissan, defendant accelerated through a stop sign. Piercy activated his lights and siren and pursued defendant's vehicle. Rather than stopping, defendant ran a red light at approximately 70 to 75 miles per hour, at times reaching speeds of 90 miles per hour. The speed limit was 25 miles per hour in residential areas and no more than 35 miles per hour in other areas. During the pursuit, defendant ran another stop sign and three more red lights.

A jury found defendant guilty of evading a police officer with reckless driving, and driving with a revoked license. The trial court found that defendant had previously served separate prior prison terms for felony convictions and that he had been convicted of a serious felony (mayhem), which was a prior strike. Defendant asked the trial court to consider dismissing the prior strike pursuant to Penal Code section 1385,*fn1 but the trial court determined that it would not strike the prior conviction. The trial court sentenced defendant to 10 years in prison. Defendant appealed, and we affirmed the judgment on October 28, 2010.

Meanwhile, in March 2010, defendant moved to recall his sentence pursuant to section 1170, subdivision (d), arguing he was entitled to additional presentence credit under section 4019. The trial court ordered the probation department to recalculate defendant's credit.

At the December 2010 hearing on the motion to recall the sentence and for consideration of defendant's entitlement to additional presentence credit, defense counsel also asked again that the trial court dismiss defendant's prior strike conviction pursuant to section 1385. Unlike the first request to dismiss, in which defense counsel sought to dismiss the strike so that defendant's sentence would not be doubled, this time defense counsel sought to dismiss the strike so that defendant could be eligible for increased presentence credit. Recent amendments to sections 2933 and 4019, which took effect after defendant was sentenced, increased the amount of presentence credit for certain prisoners, but not for those convicted of serious felonies. Defendant was ineligible for additional credit under those recent amendments because his prior strike conviction for mayhem was a serious felony. (§§ 1192.7, subd. (c)(2), 2933, former subd. (e)(3), 4019, subds. (b), (c).)

The People opposed defendant's request to dismiss the prior strike, maintaining that the trial court should not reconsider a request that it had denied previously "for a ...


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