(Super. Ct. No. 09F04391)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...