P. v. Jones

P. v. Jones

Filed 10/28/08 P. v. Jones CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. DONALD NATHANIEL JONES, Defendant and Appellant.

B203447 (Los Angeles County Super. Ct. No. VA095591)

APPEAL from a judgment of the Superior Court of Los Angeles County. Beverly Reid OConnell, Judge. Affirmed.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

_

Donald Nathaniel Jones (appellant) was charged in counts 1 and 4 with attempted forcible rape, a violation of Penal Code[1]sections 664 and 261, subdivision (a)(2), in count 2 with attempted second degree robbery, a violation of sections 664 and 211, in count 3 with assault with intent to commit a felony, a violation of section 220, in count 5 with assault with a deadly weapon, a violation of section 245, subdivision (a)(1), and in count 6 with indecent exposure, a violation of section 314, subdivision (1). It was alleged, as to counts 1 and 2, that appellant used a deadly and dangerous weapon, a knife, a violation of section 12022, subdivision (b)(1). It was further alleged, pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (a)(1) and (b) through (i), that appellant had suffered four prior convictions of a serious or violent felony. It was also alleged that appellant had suffered one prior felony conviction within the meaning of section 667.5, subdivision (b).

Appellant pleaded not guilty and denied all of the special allegations. Prior to trial, the court granted the Peoples motions to dismiss count 1 pursuant to section 1385, and to sever counts 3 and 4. Trial was by jury. Appellant was found guilty of count 2, and the jury found not true the allegation that appellant used a deadly and dangerous weapon. He was found not guilty of counts 5 and 6.

In a bifurcated proceeding, appellant admitted the four prior strike allegations. Appellants Romero[2]motion was granted, in part, and the court struck two of appellants four priors.

The court sentenced appellant as a third strike offender to 25 years to life for count 2, plus an additional five years pursuant to section 667, subdivision (a)(1). Appellant received 587 days of presentence custody credit. The court ordered appellant to pay a $200 restitution fine ( 1202.4, subd. (b)) and imposed and stayed a $200 parole revocation fine ( 1202.45). Appellant appeals from the judgment of conviction. We affirm.

CONTENTIONS

Appellant contends that the trial court abused its discretion when it denied in part his motion to strike three of his four strike prior convictions.

FACTS AND PROCEDURAL HISTORY

On May 29, 2006, appellant entered The Dollar Market and asked the cashier, Ana Figueroa (Figueroa), for the location of lotion and alcohol. Appellant walked away from Figueroa. Later, Ja Hwang (Hwang), the store managers wife, told Figueroa that appellant was masturbating in the store. Figueroa saw appellant rubbing his exposed penis and motioning her to come to him. Figueroa yelled at appellant to get out. Appellant went to the warehouse in the back of the store, then came back to the cash register with his penis in one hand, and a knife in the other. Appellant blocked Hwang and Figueroa from exiting from behind the cash register, demanded money, and beckoned them to come to him. Appellant went to the front entrance and closed the door. Figueroa and Hwang ran to the back office, locked the door, and called police. From a security monitor, Figueroa and Hwang could see that appellant was trying to open the cash register. Police arrived and arrested appellant.

The four strike priors appellant admitted were for four separate counts of robbery ( 211) committed in 1994. Appellant used a handgun in two of those robberies. Pursuant to section 1385, the trial court struck two of appellants prior felony convictions, after considering appellants individual characteristics, the four separate prior robberies, and a prior grand theft conviction in 1993 which was originally charged as a robbery and to which appellant pled guilty as grand theft.

DISCUSSION

I. The trial court did not abuse its discretion in denying appellants motion to strike three of his four strike prior convictions

Appellant urges that the trial court abused its discretion in refusing to strike three of his four strike priors because (1) they were remote in time; (2) appellant did not demonstrate a pattern of criminal behavior; (3) appellant suffered from mental illness; and (4) the Three Strikes law was not designed to sentence persons who suffered from mental illness to 25 years-to-life. Appellant also contends that because the jury found not true the allegation of personal use of a weapon and found appellant not guilty of count 5, the jury must have realized that appellant suffered from mental illness. We find no abuse of discretion.

Section 1385 authorizes the trial court to strike prior convictions in furtherance of justice. The term furtherance of justice, requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.] (People v.Superior Court (Romero), supra, 13 Cal.4th at p. 530.) The courts must recognize societys legitimate interest in the fair prosecution of crimes properly alleged by refraining from arbitrarily cutting those rights without a showing of detriment. (Id. at p. 531.) A trial court abuses its discretion if it strikes a prior conviction allegation simply because a defendant pleads guilty; or because it may have a personal antipathy for the harsh result that the Three Strikes law would have on the defendant while ignoring the defendants background, the nature of his present offense, and other individualized considerations. (Ibid.)

The record shows that appellant pled guilty to grand theft in 1993 and was granted probation. In 1994 hecommitted four separate robberies during a crime spree. He was armed with a handgun in two of those robberies.While it is true that the current crime occurred 12 years after the robberies, appellant had been in prison until 2002 and had only recently been on parole before he committed the current offense. Despite appellants argument that the Three Strikes law was not designed for mentally ill persons under such circumstances, the trial court took into consideration the testimony of a psychiatrist that appellant suffered from schizophrenia and that appellant had short periods of remaining crime free. The trial court exercised its discretion to strike two of the prior convictions based on appellants individualized characteristics, including his mental health issues. The trial court stated it believed appellant understood what he was doing when he attempted to rob the market, but also stated that it recognized that appellants behavior of drawing attention to himself by masturbating was emblematic of his mental health issues. The trial court decided not to strike the remaining two prior strikes because it believed that unfortunately and tragically, appellant fell within the Three Strikes scheme because he had consistently engaged in a criminal pattern of behavior of forcibly taking or attempting to take money from his victims. We cannot say that the trial courts finding that appellant fell within the Three Strikes scheme due to his recidivist behavior was an abuse of discretion.

Nor do we find an abuse of discretion because the jury must have recognized that appellant suffered from mental illness or because the trial court never considered sentencing appellant as a second strike offender. The record shows that at the continued sentencing hearing, appellants counsel requested the trial court to strike three of the four strikes, arguing that the sentence would then be 10 years. The trial court then solicited a statement from appellant, who represented that he would not have jeopardized his freedom for the current crime but for his mental illness. The trial court then reiterated its decision to strike two of the prior strikes based on appellants mental health issues and its belief that appellant did not fall outside the Three Strikes law. We are satisfied that the trial court fully considered but rejected appellants request to strike three of the priors so that he could be sentenced as a second strike offender.

We conclude that the trial court did not abuse its discretion in striking only two of the four prior strike convictions.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

, Acting P. J.

DOI TODD

We concur:

, J.

ASHMANN-GERST

, J.

CHAVEZ

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[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.