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The People v. Ervin Grant Branson

March 2, 2012


(Super. Ct. No. CM032486)

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

P. v. Branson



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Ervin Grant Branson, Jr., entered a negotiated no contest plea to furnishing marijuana to a 14-year-old girl (Health & Saf. Code, § 11361, subd. (b)) and misdemeanor molesting or annoying the same girl (Pen. Code, § 647.6, subd. (a)(1)). He also admitted a prior strike, arising from a 1989 robbery conviction.

Defendant now appeals, claiming the trial court abused its discretion by denying his Romero motion to dismiss his prior serious felony conviction allegation.*fn1 We disagree and shall affirm the judgment.


Prior to sentencing, defendant asked the court to consider striking the allegation he suffered a 1989 strike conviction, based on the age of the conviction, his youth at the time of that conviction, and the nonviolent nature of the current crime.

The court examined the relevant law, the parties' briefs, and defendant's records, including the probation report. Counsel submitted without oral argument. After weighing the relevant factors, the court denied the motion, stating that based on "defendant's lengthy criminal record and many parole violations, I do not see the age of the strike prior as a factor favorable to the defendant."

We see no abuse of discretion.

Penal Code section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, "and in furtherance of justice," to order an action dismissed. (§ 1385, subd. (a).) In Romero, the California Supreme Court held a trial court may utilize section 1385 to strike or vacate a prior strike for purposes of sentencing under the "three strikes" law, "subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion." (Romero, supra, 13 Cal.4th at p. 504.)

"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. In the absence of such a showing, the trial court is presumed to have acted correctly. The appellate court may not substitute its judgment for that of the trial court when determining whether the trial court's decision to strike the prior conviction was proper. (Id. at pp. 376-377.) "'[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385[, subdivision ](a), or in reviewing such a ruling, the court in question must consider 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.' [Citation.]" (Carmony, at p. 377.) "'[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]." (Id. at p. 378.)

Here, before denying the Romero motion, the court stated it had considered the probation report, which sets forth at some length the particulars of defendant's background, character, and prospects, including his family background, marital status, personal history, education, and employment history. The 14-year-old victim reported that, over a two-week period, defendant (whom she called "Uncle") gave her marijuana, kissed her, touched her buttocks under her clothes, and digitally penetrated her. Photos of the victim in her underwear were found on defendant's cell phone, and he sent her a text message referring to condoms. In contrast, defendant's written statement omits any reference to facts underlying the molestation conviction; he states he only smoked marijuana with ...

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