P. v. Brewer

 

 

 

 

 

 

 

 

 

 

 

Filed 11/7/13  P. v. Brewer 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   KRISTOPHER KENNETH BREWER,                           Defendant and Appellant.

C072560   (Super. Ct. No. 12F00145)

 

 

            A jury
found Kristopher Kenneth Brewer guilty of felony href="http://www.mcmillanlaw.com/">possession of marijuana while in prison.  The trial court found one prior strike
allegation to be true and dismissed the other, resulting in a four-year
sentence.

            On appeal,
defendant contends the trial court abused its discretion when it refused to dismiss
his second prior strike allegation. 
Defendant claims the trial court failed to fully consider the minor
nature of the offense, his emotional and mental problems, and his “mixed bag”
of conduct in prison.

            We find no
error in the court’s denial of defendant’s request.  Accordingly, we affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

On December 6, 2011, Correctional Officer Doug Howell
noticed defendant, a prison inmate, with his hand down the back of his pants in
what appeared to be an attempt to secrete something into his rectum.  When questioned, defendant told Officer
Howell he was “trying to shove something up his butt, but he couldn’t get it”
in.  Defendant then pointed to a
cellophane bindle wrapped in black tape on the ground and said it contained
chewing tobacco. 

            As a
result, defendant was strip searched and his rectum was inspected, but nothing
was found.  Defendant was then placed on
contraband watch in a cell where Officer Howell observed him having a bowel
movement.  Thereafter, two bindles were
discovered in defendant’s feces.  One
bindle contained tobacco and the other smaller bindle contained marijuana.  The net weight of the marijuana was 0.38
grams. 

            The jury
found defendant guilty of possessing marijuana while in prison, a felony.  On a motion by the People, the trial court dismissed
one of two prior strike convictions arising from a 1993 case in which defendant
kidnapped and robbed a person at gunpoint. 


            The court
then denied defendant’s Romerohref="#_ftn1" name="_ftnref1" title="">[1]> motion “based on the conduct of the
defendant since he has been incarcerated” and sentenced defendant to two years
in state prison, which the court doubled pursuant to the prior strike, for an
aggregate term of four years. 

DISCUSSION

Defendant claims the trial court
abused its discretion when it refused to dismiss his second prior strike.  The People assert defendant’s criminal
history places him within the spirit of the three strikes law.  We conclude that the trial court did not
abuse its discretion in refusing to strike defendant’s second prior strike.

In Romero, the California Supreme Court held that trial courts have
discretion under Penal Codehref="#_ftn2"
name="_ftnref2" title="">[2]
section 1385 to dismiss a strike prior in the furtherance of justice and the
exercise of that discretion can be reviewed by the appellate court for abuse of
discretion.  (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) 
In People v. Williams (1998)
17 Cal.4th 148, the court clarified that the question to be answered on a
motion to dismiss under section 1385 is 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 [three strikes] 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.”  (Williams,
at p. 161.)  The court’s sentencing
decision is subject to review for abuse of discretion, and this discretion must
be used in a manner that is not arbitrary and capricious and should be based
upon an “ ‘individualized consideration of the offense, the offender, and the
public interest.’ ”  (>People v. Sandoval (2007) 41 Cal.4th
825, 847.)

            Defendant first
argues the minor nature of the marijuana possession felony does not warrant the
four-year consecutive prison term.  Defendant contends that had he not been in
custody, his offense would have been merely an infraction and he would have
received a fine of no greater than $100. 
However, it does not matter that his offense would have been less
serious if he had committed it outside of prison because he committed it >in prison.  The Legislature has
decided that what would be a mere infraction outside prison walls -- the
possession of marijuana -- should be a felony
if it takes place in prison.  (§ 4573.6)  Defendant fails to cite any authority for the
proposition that this different punishment for the offense committed should be
taken into consideration in a Romero hearing.
 The trial court’s consideration of his
criminal act was not arbitrary or irrational.

Defendant also contends that the
court abused its discretion by failing to fully consider his background of
“mental and emotional problems” when deciding whether to strike his second
strike prior.  Defendant “suffer[ed]
mental and emotional problems . . . [,] was under psychiatric
care intermittently . . . [and] began abusing alcohol and drugs [at
age nine].”  Although these issues may be
considered a relevant factor in mitigation in sentencing, we fail to see how
they would compel the conclusion that the only reasonable result would have
been the striking of all defendant’s priors. 


Lastly, defendant contends that the
trial court abused its discretion by not properly weighing defendant’s “mixed
bag” of conduct in prison.  Defendant
minimizes his bad conduct when calling it a “mixed bag.”  In presenting that argument, defendant
exaggerates mitigating factors and minimizes aggravating ones by citing
positive work and educational review and only briefly mentions his long list of
rule violations during his incarceration. 
The list of 13 violations as an adult in prison ranges from obstructing
an officer to battery of another inmate, and indicates that defendant has been
unable to change his drug-abusive lifestyle. 
Defendant’s inability to conform to the law in prison does not lead one
to believe that he will conform to the law outside it.  The court declined to strike defendant’s
prior conviction, citing “the conduct of defendant since he has been
incarcerated.”  Therefore, the trial
court gave appropriate consideration to defendant’s conduct in prison.

Viewing the record as a whole,
defendant fails to convince us the sentencing court was irrational or arbitrary
in concluding the interests of justice were furthered by finding him within the
spirit of the three strikes law.  The
trial court did not abuse its discretion in denying defendant’s >Romero motion.

 

DISPOSITION

            The
judgment is affirmed.

 

 

 

                                                                       ROBIE          , Acting P. J.

 

 

 

We concur:

 

 

 

          MAURO          , J.

 

 

 

          HOCH           , J.