P. v. Nusser

P. v. Nusser






Filed 1/6/12 P. v. Nusser CA4/2







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. ROSS DENNIS NUSSER, Defendant and Appellant.

E052202 (Super.Ct.No. RIF148733) OPINION

APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge (retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Daniel Rogers and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Ross Dennis Nusser of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)),[1] but found him not guilty of robbery and theft as a lesser included offense of the robbery, and also found that defendant had not personally inflicted great bodily injury upon the victim of the assault. Defendant admitted he had two strike priors (§ 667, subds. (c) & (e)(2)(A)). After the trial court denied defendant’s Romero[2] motion requesting the dismissal of his strike prior convictions, defendant was sentenced to 25 years to life. Defendant contends the trial court abused its discretion by refusing to dismiss one or both of his strike priors. We affirm.
BACKGROUND
Criminal History
On September 28, 1995, defendant was convicted of duplicating a key to a state building (§ 469) and was placed on summary probation.
On January 6, 1998, defendant was convicted of underage possession of an alcoholic beverage in a public place (Bus. & Prof. Code, § 25662, subd. (a)), possession of an instrument for injecting or smoking a controlled substance (former Health & Saf. Code, § 11364), and use of a controlled substance (Health & Saf. Code, § 11550). He was placed on summary probation with the requirement that he serve 90 days in jail. Also on January 6, 1998, defendant was convicted of failure to comply with the duties of the driver of a vehicle involved in a property damage accident (Veh. Code, § 20002, subd. (a)) and petty theft (Pen. Code, § 488). He was placed on summary probation with the requirement that he serve 30 days in jail.
On February 9, 1998, defendant was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and was placed on probation with the requirement that he serve 120 days in jail.
On February 13, 1998, defendant was again convicted of failure to comply with the duties of the driver of a vehicle involved in a property damage accident (Veh. Code, § 20002, subd. (a)), and was sentenced to 30 days in jail.
On April 16, 1999, defendant was found to have violated his probation from his 1995 conviction; probation was reinstated with the requirement that defendant serve 30 days in jail.
On May 15, 2000, defendant was convicted of two counts of second degree robbery (§§ 211, 212.5, subd. (c)). These were the convictions underlying defendant’s strikes. He was sentenced to two years in state prison.
On September 28, 2004, defendant was convicted of driving without a license (Veh. Code, § 14601.1, subd. (a)) and was placed on summary probation with the requirement that he serve 10 days in jail.
On October 5, 2005, defendant was convicted of tattooing or offering to tattoo a person under the age of 18 (§ 653) and was placed on summary probation. On April 3, 2006, he was found to have violated his probation and was sentenced to 10 days in jail.
On November 28, 2007, defendant was convicted of driving under the influence (Veh. Code, § 23152, subd. (a)) and was placed on summary probation with the requirement that he serve 13 days in jail.
On October 10, 2008, defendant was convicted of knowingly driving while his privileges were suspended or revoked (Veh. Code, § 14601.5, subd. (a)) and was placed on summary probation with the requirement that he serve 10 days in jail.
On March 23, 2009, defendant was convicted of two counts of tattooing or offering to tattoo a person under the age of 18 (§ 653) and was placed on summary probation with the requirement that he serve 45 days in jail.
Present Offense
On April 24, 2008, defendant chased the victim, knocked him down, “and started just beating on him.” This included punching the victim in the face and kicking his head. A codefendant caught up, punched the victim in the face, went through the victim’s pockets, and took some of the victim’s belongings. The victim owed the codefendant approximately “[a] thousand dollars.” The altercation left the victim with bruising, a bloody and fractured nose, and a mild concussion.
Romero Motion
Defendant’s motion recited his background: he graduated high school and attended community college until he was “within one class credit” of a degree, developed a substance abuse problem, and began his encounters with the criminal justice system. The motion asserted that defendant was traumatized by being a suspect in the killing of his best friend, which led to deep depression, hitting “rock bottom,” and then committing a “string of liquor store robberies using a pellet gun.” The motion also noted that defendant’s “work record has been inconsistent due to his criminal record and his drinking problems.” The motion then recited some work in the restaurant, banquet, construction, and moving industries. The motion asserted that defendant was outside the spirit of the “Three Strikes” law because: he was less culpable than the codefendant; had only been to prison once; his prior history did not involve any actual violence as the robberies were not committed with a real gun; the robberies were remote in time; the robberies had been committed on the same day; the current offense was not sophisticated or planned; the current offense did not involve weapons and was only moderately violent; other than the current offense defendant did not have a history of violence; the current offense was less serious than the robberies; defendant did not violate his parole; and, one strike would provide sufficient punishment.
Defendant also wrote a letter to the trial court recounting a religious awakening he had after being arrested for his present offense.
The People’s opposition to the motion recited defendant’s criminal history, including arrests, and descriptions of the events underlying some of the incidents. The opposition asserted that defendant’s “continuous life of crime” displayed his poor character, and that his refusal to stay crime free indicated poor prospects.
At the hearing on the Romero motion, defendant’s trial counsel stated that he had put his “legal arguments in the moving papers” but that he wanted to comment on defendant “on a personal level.” He then referred to defendant’s letter, noted that defendant was willing to accept whatever sentence the trial court felt was acceptable, and opined that “this has been a very positive experience for him, as he has essentially found himself a subject of God. And I think that is very important to him, and I think it probably will change the course of his life, no matter what decision the Court renders.” Defendant’s trial counsel stated that defendant’s demeanor had always been respectful, defendant understood his actions had consequences, and that because of these two things he was “a little different” from the many defendants that counsel had represented in similar gang or Three Strikes situations. Defendant’s trial counsel opined that there was “a very strong probability” that defendant could become a productive member of society, that defendant was not a “truly violent person at his core,” and that his incidents stemmed from substance abuse, depression, and poor choice of company.
The People referred to their opposition’s evaluation of the factors, urged “the Court that empathy and sympathy are not factors,” and submitted on their written opposition.
The trial court ruled, “Well, the Court has read the moving papers and responses, as well as the letter that was written by the defendant in this matter. I just want to make some comment as to the letter specifically. It’s a very moving letter. I think that a lot of times it’s not unusual to get letters from people that have, quote, found religion or found God while incarcerated. Sometimes we would maybe tend to take a little bit of a jaded view towards some of those perhaps as somebody trying to get out of something. I frankly don’t see yours that way. I think this is a legitimate situation you’re talking about, and what you have found here is something that will help you for the rest of your life. The way the system works and the way Christianity works, which is what we’re talking about here, as I understand your letter at least, is that foregiveness can be received but that doesn’t necessarily mean we don’t have consequences of our actions. At this point, we’re talking about eternal forgiveness, which is much more important than anything that would happen ultimately here. [¶] I, in looking at the facts of this case, do find that this case falls within the spirit of the three strikes law, and I do not find it appropriate to strike the strikes in this matter. [¶] That being said, you may well end up being put in a position where God can use you much more than he would if you were free and on the streets. And my encouragement for you is to go forward and don’t turn your back on Him because of my decision, because it’s your relationship with Him that makes all the difference.”
The trial court then confirmed that neither counsel had any comments or corrections to make regarding the probation officer’s report, and then sentenced defendant.
DISCUSSION
Defendant contends the trial court abused its discretion by denying his motion to dismiss at least one of his strikes. We disagree.
“[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 (Carmony).) Defendant has the burden of demonstrating an abuse of discretion and, in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) Even if we might have ruled differently in the first instance, we will affirm the trial court’s ruling as long as the record shows the trial court “‘balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law.’” (Id. at p. 378.) An exercise of discretion to strike a prior conviction pursuant to section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant’s constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts “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.” (People v. Williams (1998) 17 Cal.4th 148, 161.) There is a “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be “extraordinary” for a career criminal to be deemed to fall outside the scheme of the Three Strikes law. (Carmony, at p. 378.)
The record shows that the trial court reviewed the probation report, defendant’s motion, and the People’s opposition, as well as permitted oral argument. In so doing, the trial court considered defendant’s present felony, prior strikes, background, character, and prospects. Thus, there is no indication that the trial court failed to consider any relevant information before it that would render defendant’s circumstances extraordinary. While defendant understandably emphasizes his educational achievements, prior ability to obtain employment, substance abuse problems, and that both strike offenses took place the same day, we do not reweigh the factors. (See Carmony, supra, 33 Cal.4th at pp. 374, 378.)
Defendant correctly notes that a substance abuse problem may be used by a trial court as a factor in mitigation. (People v. Garcia (1999) 20 Cal.4th 490, 503.) However, the failure to address a substance abuse problem may be a negative indication of a defendant’s background, character, or prospects. (See Williams, supra, 17 Cal.4th at p. 163 [lack of follow through in efforts to control a substance abuse problem as factor toward there being “little favorable about [defendant’s] background, character, or prospects”].) Nonetheless, there is no indication that the trial court was not aware of defendant’s substance abuse problem, or how to evaluate it in the context of a Romero motion.
Defendant relies on People v. Bishop (1997) 56 Cal.App.4th 1245 for the proposition that unduly relying on criminal history is improper. However, defendant’s prior convictions, even misdemeanors, are relevant to his background, character, and prospects. (See id. at pp. 1250-1251 [“once a defendant has qualified for three strikes sentencing, the number of his prior convictions operates as a factor in aggravation, as may the nature of his prior and present crimes and the timing with which they were committed”].) Here, defendant’s prior serious and violent felony convictions and extensive criminal history placed him within the spirit of the Three Strikes law. Thus, “the flaw in [defendant’s] position is not in approaching the analysis in terms of weighing factors, but in failing to accord the trial court the breadth of discretion.” (Id. at p. 1250.)
Accordingly, defendant has failed to overcome the “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion.” (In re Large, supra, 41 Cal.4th at p. 551.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


/s/ RAMIREZ
P. J.


We concur:

/s/ KING
J.

/s/ CODRINGTON
J.