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The People v. Matthew Sean Ballard

May 16, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MATTHEW SEAN BALLARD, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F04845)

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

P. v. Ballard

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Matthew Sean Ballard pleaded no contest to driving under the influence of alcohol and driving with a blood-alcohol level at or exceeding .08 percent. He also admitted to being convicted twice for driving under the influence in the prior 10 years, serving three prior prison terms, and being previously convicted of a strike felony. Defendant was sentenced to an aggregate term of four years in state prison.

Defendant's sole contention on appeal is that the trial court abused its discretion by refusing to strike his prior strike conviction under Romero. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) We disagree and affirm the judgment.

BACKGROUND

In July 2010, shortly after 9:00 p.m., defendant was seen making an illegal U-turn. He was detained and, after failing several field sobriety tests, arrested. A subsequent blood test revealed defendant's blood-alcohol level to be .13 percent.

Defendant was charged with driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)) and driving with a blood-alcohol content of .08 percent or more (Veh. Code, § 23152, subd (b)). It was alleged that defendant was twice convicted of these same offenses in the prior 10 years (Veh. Code, § 23550.5) and served three prison terms within the meaning of Penal Code section 667.5, subdivision (b). It was further alleged that defendant was previously convicted of a serious felony.

Defendant pleaded no contest to the charges and denied the enhancement allegations. Shortly thereafter, he filed a motion pursuant to Romero, supra, 13 Cal.4th 497, asking the trial court to strike his prior strike conviction in the interests of justice. In support of the motion, defendant argued he fell "outside the spirit of [the] three strikes law." Specifically, defendant argued the strike conviction was remote in time, his criminal history was a result of his addiction, and his prospects for the future were good. Defendant noted he maintained steady employment, raised two children, remained married, and had the continued support of his friends and family.

The People opposed the motion to strike defendant's prior strike conviction, pointing out that, despite having resources and family support, defendant had a significant criminal history. In 1991 defendant was convicted of robbery (the strike offense); he served 210 days in jail. In 2000 defendant was convicted of driving under the influence of drugs or alcohol and sentenced to 180 days in jail. Also in 2000, defendant was convicted of possessing a controlled substance and sentenced to 32 months in state prison.

Then, in 2004, defendant was again convicted of driving under the influence of drugs or alcohol, and possessing drug paraphernalia. The following year, defendant was twice convicted of possessing a controlled substance. He also was convicted of felony driving under the influence of drugs or alcohol, and driving on a suspended license. For the 2005 convictions, defendant was sentenced to three years in state prison.

In 2008 defendant was again convicted of felony driving under the influence of drugs or alcohol. Defendant was sentenced to 16 months in state prison. The People also noted that five months after his release from prison, defendant was ...


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