IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 16, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL JACKSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F04391)
The opinion of the court was delivered by: Nicholson , J.
P. v. Jackson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Michael Jackson entered an open plea of guilty to possessing marijuana and methamphetamine in prison and admitted four allegations of prior "serious" felony convictions arising out of February 2004 proceedings, subject to the trial court's consideration of his renewed request to exercise its discretion to strike one or more of these recidivist admissions at sentencing under Penal Code section 1385 (undesignated section references are to this code).*fn1 Following a hearing, the court (with great reluctance) denied defendant's request and imposed the prescribed indeterminate sentence of 25 years to life. (Pen. Code, § 667, subd. (e)(2)(A)(ii).)
On appeal, defendant argues the trial court did not make an informed exercise of its discretion and, on the facts, it was an abuse of discretion to deny his request. We affirm the judgment.
The prosecutor recited the factual basis for the present offense: while an inmate at Folsom Prison, defendant possessed methamphetamine and marijuana in usable amounts. The probation report elaborates on this skeletal account in its summary of the institution's report: in February 2008, guards observed defendant, who standing near his authorized visitor, make numerous movements with his arm toward his buttocks. They suspected him of secreting something. They detained him, and defendant admitted being in possession of the drugs, although the guards could not find it on his person. After placing him on "contraband watch," defendant's bowel movements the next day contained bindles with the two drugs inside.
Defendant was serving a prison term for four February 2004 convictions: two counts of robbery, one count of carjacking, and one count of making criminal threats. As appears in the probation report's summary, these convictions were based on a September 2002 incident in which two accomplices carjacked a vehicle at gunpoint in which an 11-year-old boy had been waiting for his mother to return; they picked up defendant, and the three committed an armed bank robbery in which they took a victim hostage at gunpoint to threaten the tellers and customers into compliance.
Defendant, now 34 years old, was 24 when he committed the 2002 bank robbery and the several related crimes. His long, uninterrupted criminal career began just short of his 15th birthday with a juvenile adjudication for drug possession in December 1992. He had additional adjudications thereafter for reckless fleeing of police pursuit (twice), carjacking with a firearm enhancement, battery, and vehicle theft (the latter of which resulted in a placement in the Youth Authority in 1996). He had felony convictions in 2000 for illegal possession of a firearm (that was apparently treated as a violation of his Youth Authority parole), and in 2001 for vehicle theft (that resulted in a prison term). He was released on parole in June 2002, shortly before the carjacking and bank robbery.
Defense counsel initially requested the magistrate to strike all but one of the four recidivist allegations. The request alluded to defendant's upbringing by his grandparents and involvement in the rearing of his six younger siblings and stepsiblings. The request did not identify any job history other than a failed career as a semiprofessional boxer and his prison occupations of cook and medical escort, and noted that he had dropped out of high school. It contended defendant was outside the spirit of the recidivist sentencing scheme because a punishment of 25 years to life was excessive for the offense where defendant did not have any history of trafficking in controlled substances in prison. The magistrate denied the request, noting that trafficking in controlled substances in prison exacerbates the potential for violence.
Defendant renewed his request with the initial trial judge in this matter. The court reaffirmed the magistrate's analysis and denied the request.
In October 2010, the case was assigned to the present trial judge, at which time defendant, by then 32 years old, entered his guilty plea subject to renewal of his request to strike. In anticipation of the hearing on this latest request, defense counsel submitted letters in support of defendant from family, friends, and mentors; these primarily attempted to provide context for the possible bases for defendant's past transgressions, the writers' beliefs in a present transformation of defendant's attitude, and a promise on the part of an uncle and a family friend to mentor defendant upon his release from prison. The prosecutor submitted a lengthy collection of materials in opposition, which included prior probation reports and police reports from defendant's previous convictions. At the court's request, the prosecutor also apparently consulted with members of his office's "strike review process" for the prison unit. In an e-mail he sent to the court and defense counsel, the prosecutor reported that both the initial reviewer of defendant's case and his supervisor had determined that multiple strikes were appropriate.
At the hearing on defense counsel's latest request, the court stated that it had reviewed all the pertinent materials in the record. It then allowed defense counsel to call two witnesses. Defendant's mother described his difficult childhood resulting from his father's incarceration and her drug addiction that led him to make bad decisions. A family friend, who was a case manager, had known defendant for over 15 years. As a young teen, he had been in the position of caring for all of his younger siblings and his incapacitated grandmother. She believed he had experienced a behavioral change at this point in his life. Defendant then addressed the court in lieu of a supplemental probation report. He expressed remorse for his past conduct, his desire to be a father to the son he had never seen outside of prison, and his intent to be a better person thereafter.
Defense counsel did not dispute the "horrendous" nature of defendant's criminal record. He attested to having a meeting with the strike reviewer at the suggestion of the trial court to find out why in this case (as opposed to others with which the court was familiar) the recidivist allegations had not been dismissed. The strike reviewer had seemed amenable to dismissing strikes if defendant were willing to plead guilty, then on learning defendant had already entered a guilty plea said he could not do anything.
The prosecutor took issue with defense counsel's account of the conversation with the strike reviewer, because the latter was not present to give his own version; in any event, the reviewer had told the prosecutor that the nature of the four prior convictions from the carjacking/bank robbery was the basis of the refusal to dismiss any of the allegations. He also argued that the present offense was dangerous because even small amounts of contraband in prison "are almost sacred" and lead to incidents of violence. The prosecutor emphasized defendant's failure before this 2008 offense "to turn things around and try to rehabilitate and try to take advantage of . . . some of the positive role [models] in his life . . . ."
The court's musings on the issue consume approximately 12 pages of transcript. At the outset, the court expressed its personal opinion that the sentence should be something less than 25 years to life. While presiding on prison possession cases, it had seen recidivist allegations regularly dismissed for all types of drugs. The court noted its personal observations that the prosecutor's office would frequently refrain at the outset of a case from including recidivist allegations while negotiating pleas. It therefore had spent "months and months trying to resolve this case."
For the benefit of defendant's supporters who were present, the court explained it had to consider whether there was any gap between the prior offenses and the present or whether there was a descending degree of seriousness, and its discretion to act was extremely limited. It commended defendant for being the first in similar circumstances to admit guilt on his first appearance before it without a deal, but cited authority that it could not take this into account. Finally, it could not act on its personal antipathy for the sentencing consequences even though it felt the sentence "is very disproportionate and wildly out of line." It felt a sentence of 10 years would be sufficient "but I don't think the law, if I did that, and I recognize I have the Authority to do it, but I don't think it would be a legal sentence . . . ."
Again, for the benefit of defendant's supporters, the court quoted from the criteria set forth in People v. Williams (1998) 17 Cal.4th 148 (Williams). Regarding the present and prior record, background, character, and prospects of defendant, the court noted his priors were more recent than in Williams and was "a hugely serious event" in which the police reports showed that many of the victims "thought they were going to die." Defendant (as in Williams) did not have any period in which he had refrained from continued criminal activity when not in custody. Even though the letters in support, and the decision of the prison authorities to trust defendant as a cook and escort, showed that he had a good side, "[T]he Appellate Court is going to go through all of the bad side and then say he does not fall outside of the spirit of the . . . law. I can't argue with that as the law has defined that."
The court concluded, "I don't think this particular case merits it, but I think, legally, were I to strike a strike, there is not a legal basis for it to stand up. It would go up to the Appellate Court, and they could kick it right back . . . because of your criminal record, because of all the things that have occurred and without any significant gaps in time . . . ." It found that defendant had not taken advantage of numerous past chances for change, and as a result, "I think my hands are tied. [¶] If I legally had the discretion, which I do have, if I had the legal Authority, let me restate that, I would strike the strike, but I don't think, legally, as I understand Williams and the law, there is a basis for me to strike your strike. I think it would be instantly overturned on appeal."
After allowing defendant and his father to address the court, it reiterated at length its personal distaste for the legally required sentence, but it did not think that any criteria were present that would allow it lawfully to exercise its discretion to strike the recidivist admissions without reversal on appeal.
A trial court may exercise its discretion under section 1385 to strike a finding that a prior conviction comes within the meaning of section 667, subdivision (d) if, and only if, a defendant can be "deemed outside the . . . spirit" of the statute, giving "preponderant weight" to inherent statutory factors (such as the background, character, and prospects of a defendant, as well as the nature and circumstances of the present and previous felony convictions) and ignoring any factors extrinsic to the statute (such as court congestion, the convenience of the court, the fact a defendant entered a plea of guilty, or antipathy to the sentencing consequences for the defendant). (Williams, supra, 17 Cal.4th at pp. 159, 161.)
The burden is on defendant to demonstrate that the trial court's decision was irrational or arbitrary, rather than being one of alternative reasonable readings of the facts before the court. This requires a defendant to countermand a "strong" presumption that the trial court's denial of the request to exercise discretion under section 1385 is proper. (People v. Carmony (2004) 33 Cal.4th 367, 376-377, 378.) Only where criteria fall clearly in a defendant's favor (id est, where the facts practically as a matter of law establish entitlement) would the denial of defendant's request to exercise its power under section 1385 be an abuse of a court's discretion. (Id. at p. 375; cf. Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449 [establishing an abuse of discretion is "daunting task" involving "uphill battle" ordinarily "'dead on arrival'" in appellate court]).)
The only lesson that defendant draws from the trial court's careful and extensive ruling is a claim that it acted under "an erroneous legal conclusion that the decision [to dismiss one or more admissions] would be reversed on appeal. Since the court misunderstood the scope of its discretion, the case must be remanded for it to exercise that discretion. [¶] It would not [have been] an abuse of discretion to [dismiss admissions] and reduce [his] sentence . . . ."
In support of this remarkable claim, defendant notes his present offense is neither violent in se nor represents a repeat offense. (He also points to his early confession of guilt and his entry of an open plea, but Carmony removes this factor from the calculus.*fn2 ) While he concedes the severe nature of an armed carjacking involving a child and an armed bank robbery with express threats of death, he minimizes his direct culpability and emphasizes that the four offenses arose out of a single course of conduct. He emphasizes the difficulties in his upbringing as mitigating factors for his past conduct (although these do not translate into indicia of defendant's ability to conform his behavior in the future), and the guidance of his uncle and mentor (although he does not explain why he would be more amenable to their guidance now than in the past). He also points to People v. Burgos (2004) 117 Cal.App.4th 1209, 1215-1217, which relied on Supreme Court dicta to conclude that it was an abuse of discretion to fail to dismiss one of two recidivist findings based on a single act where the defendant otherwise had a minor criminal record. He thus concludes the trial court was incorrect in its belief that no reasonable jurist would have upheld its decision to dismiss two or more of his recidivist admissions for purposes of sentencing.
Contrary to defendant's view, a decision to dismiss two or more of the recidivist admissions, that is, his strike admissions, would have been an abuse of discretion. Defendant's present conviction, as was repeatedly noted in the trial court, may not have been violent in se or represent a repeat offense, but trafficking in drugs in prison goes to the heart of unrest and violence. It is not the same as if he had been arrested on the street for the same offense. As we have indicated above, that there may be explanations for the bad decisions defendant has made in past does not take away from their consequences for society, and do not offer any assurance that defendant will not continue to pose a threat to society even with the benefit of mentoring. From 1992 to his present offense in 2008, defendant's commission of criminal acts when not incarcerated has been unremitting. There is nothing to demonstrate, other than his self-professed change in outlook, that he will not continue in accordance with his past behavior. As for People v. Burgos, supra, 117 Cal.App.4th 1209, we ruled in People v. Scott (2009) 179 Cal.App.4th 920, 930-931, that the failure to dismiss one of multiple convictions arising out of a single act is but a factor, not a dispositive factor in the criteria under section 1385. Thus, the trial court here did not commit an abuse of discretion in failing to dismiss one or more of four convictions that arose from multiple acts of violence against multiple victims. In short, the trial court was well aware of the limits of its discretion to dismiss under section 1385, and we reject defendant's claims to the contrary.
Alternately, defendant argues the trial court abused its discretion because the resulting sentence was the arbitrary result of inconsistent bargaining practices in the prosecutor's office of which the trial court was aware (invoking Garcia's identification of avoiding "unjust sentences" as the primary purpose of section 1385 (20 Cal.4th at p. 500)). In this regard, he seems to argue that a concern that a sentence is constitutionally disproportionate would be a proper basis for dismissing recidivist findings, attempting to find an implicit holding to this effect in the interplay between the Supreme Court's reversal of our finding of an abuse of discretion under section 1385 in Carmony, but its failure to grant review in our subsequent split decision finding the sentence to be constitutionally disproportionate (People v. Carmony (2005) 127 Cal.App.4th 1066).
The use of a plastic phrase such as "unjust sentence" must be given form in the context of the relevant criteria. For purposes of section 1385, a sentence can be "unjust" only for the reasons identified in Williams and progeny, which do not include a court's displeasure with the exercise of prosecutorial discretion in the charging function.*fn3 As for defendant's efforts to admix the criteria for dismissal under section 1385 and the criteria for identifying a constitutionally disproportionate sentence, these are overlapping but not identical (People v. Cole (2001) 88 Cal.App.4th 850, 868-869), and we decline to review a discretionary ruling under the former as a failure to make a finding of the latter.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. DUARTE , J.