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The People v. Earl Mack

July 17, 2012


(Super. Ct. No. 10F03264)

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

P. v. Mack



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appeals from the sentence imposed following his plea of no contest to possession of marijuana in prison and admissions of a prior strike conviction and having served two prior prison terms. Defendant contends the trial court abused its discretion in denying his Romero*fn1 motion. We affirm.


On February 17, 2010, while in custody at Folsom State Prison, defendant was found in possession of 1.2 grams of marijuana, which had been secreted between his buttocks.

Defendant was charged with possession of marijuana while in prison (Pen. Code, § 4573.6).*fn2 It was further alleged defendant had suffered a prior strike conviction (§§ 1170.12, 667, subds. (b) through (i)) and served two prior prison terms. (§ 667.5, subd. (b).) Defendant pled no contest to the possession charge and admitted the prior strike allegation and the prior prison term allegations.

Defendant filed a Romero motion, requesting the court dismiss the prior strike conviction in the interests of justice. To support his motion, defendant offered information on his background. When defendant was a teenager, he was in a serious bicycle accident. As a result, he was in a coma for nine to ten days and had to relearn his cognitive skills. Defendant also became addicted to street narcotics and alcohol at a young age. He graduated from high school in 1996 and had been continuously employed as an adult, most recently as a warehouseman.

As to the facts and circumstances of the current offense, defendant argued the conduct in this case was minimal. He was working as part of a minimum security landscaping detail. As he was leaving a portable toilet, he was stopped and found in possession of "a very small amount of marijuana." Under other circumstances, possession of this amount of marijuana would be a misdemeanor with a small fine. Defendant was compliant and cooperative with officers throughout the incident.

Defendant's criminal history began in 1993, as a juvenile. He had adjudications in 1993 for attempted grand theft (§§ 664/487), in 1995 for vehicle theft (Veh. Code, § 10851) and in 1996 for attempted robbery. (§§ 664/211.) As an adult, in May 2001, defendant was convicted of vehicle theft (Veh. Code, § 10851) and granted three years formal probation conditioned on serving 16 months in state prison. Defendant was released on parole in December 2002. He was returned to custody on 11 occasions, for two new convictions and nine parole violations. In May 2004, defendant was convicted of burglary (§ 459) and sentenced to 28 months in state prison. In November 2006, defendant was convicted of robbery. (§ 211.) Defendant and a female accomplice went in to a grocery store together and stole expensive bottles of alcohol. Loss prevention officers were waiting for them outside the store. When defendant realized the loss prevention officers were there, he yelled "Run, baby" and tried to stab two of the officers with a screwdriver. Defendant was arrested after he fled the scene.

In addition to his felony offenses, between 1997 and 2006, defendant had seven misdemeanor convictions, five for theft (§ 484), one for evading a police officer (Veh. Code, § 2800.1) and one for disorderly conduct. (§ 647, subd. (f).) As a result of convictions and parole violations, defendant was in custody for some period of time almost every year between 1997 and 2010.

On the circumstances surrounding his strike conviction, defendant explained he committed the robbery the same year his mother died and he was suffering from a deep depression. He and his female accomplice were drinking and using drugs, when she decided to steal some alcohol from a store. She filled her backpack and left the store with the alcohol. The loss prevention officers threw her to the ground and defendant came forward to defend her. Defendant acknowledged ...

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