P. v. Beckwith
Filed 3/25/13 P. v. Beckwith CA2/1
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
GERALD DELANE BECKWITH,
Defendant and Appellant.
B242147
(Los Angeles
County
Super. Ct.
No. MA052644)
APPEAL from a judgment of the Superior
Court of
County, Akemi D. Arakaki, Judge. Affirmed as modified.
Murray A.
Rosenberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels,
Supervising Deputy Attorney General and Ana R. Duarte, Deputy Attorney General,
for Plaintiff and Respondent.
_____________________
>
Gerald Beckwith was convicted of
first degree residential burglary and
petty theft, and received a sentence of 37 years to life. Beckwith appeals, arguing that the trial
court abused its discretion in denying his motion
to dismiss one or both of his prior strikes. We modify the abstract of judgment and
otherwise affirm the judgment.
BACKGROUND
An amended
information charged Beckwith with one count of first degree residential burglary
in violation of Penal Code section 459
(count 1), and one count of petty theft with three priors in violation of
section 666, subdivision (a) (count 2).
The information also alleged that Beckwith had suffered two prior strike
convictions as to both counts within the meaning of sections 1170.12,
subdivisions (a) through (d), section 667, subdivisions (b) through (i), and
section 667, subdivision (a)(1), and further alleged that Beckwith had served
eight prior prison terms within the meaning of Penal Code section 667.5,
subdivision (b). Beckwith pleaded not
guilty and denied the allegations.
A jury
found Beckwith guilty as charged on both counts. In a bifurcated
proceeding, Beckwith waived jury trial, and the court found the prior
conviction allegations to be true, except for one of the eight prior prison
term allegations. The trial court also
denied Beckwith’s motion to dismiss his prior “strike†convictions pursuant to
13 Cal.4th 497 (Romero). The court sentenced Beckwith to a total of 37
years to life, detailed as follows: On
count 1, Beckwith received a term of 25 years to life pursuant to the “Three
Strikes†law, five years each for the two prior serious felony
convictions, and one year each for two
of the seven prior prison terms. The
court stayed the term for count 2 under section 654. The court ordered Beckwith to pay fines and
fees, and awarded him 478 days of custody credit. Beckwith filed a timely
The
testimony at Beckwith’s trial was that on April 30, 2011, Tiara Eaton was moving into her new
apartment at 44641 10th Street West
in Lancaster. At 2:30 p.m.,
she locked the apartment door and went with her mother to buy some pizza.
That same
day, Angelena Blue, whose apartment was directly across from Eaton’s, returned
home about 1:00 p.m. or 2:00 p.m. Beckwith, who was a former boyfriend of
Blue’s daughter, loitered outside Blue’s apartment asking for the return of his
things. Blue’s daughter gave Beckwith
the items in a plastic bag, and Blue asked Beckwith to leave. Instead, Beckwith sat on a windowsill of Eaton’s
apartment. Blue called the police, but
when nobody answered she gave the phone to her daughter and peeked outside.
Blue
watched Beckwith make a call and then a younger man, Antonio Smalls,
arrived. Beckwith pushed Eaton’s
apartment door open and went inside, followed by Smalls. Smalls then came out of Eaton’s apartment with
a box. Blue told him to put the box
back, and when he reentered Eaton’s apartment, Blue went inside her apartment
to call the police. When she returned to
her door, she saw Beckwith and Smalls walking away on the street, holding
boxes. She shouted at them to bring the
boxes back, but they continued to walk away.
Blue called the police.
When Eaton
returned from buying a pizza, she saw that her apartment door was open and the
frame was damaged, and when she went inside she saw that her things had been knocked
down and some of her property was missing.
Blue told Eaton that she had seen two men steal a couple of boxes. Blue then drove to where Beckwith and Smalls
had gone, followed by Eaton and her mother.
The women confronted Beckwith and Smalls, who were holding boxes of
Eaton’s property, and demanded that the men give it back. Eaton and her mother eventually recovered the
stolen items.
Eaton’s
brother found a shaving kit in Eaton’s apartment. They turned the bag over to the police, who
found inside a utility bill with Beckwith’s name and address. While on the way to Beckwith’s apartment, the
police arrested Beckwith on the street.
The defense
read into the record a stipulation between the parties that a doctor reviewed
Beckwith’s medical record, and based on that review and an examination of
Beckwith, the doctor determined that due to a prior injury to Beckwith’s right
hand, it would have been painful, although not impossible, for Beckwith to hold
an object in his right hand.
I. The court did not abuse its discretion
in failing to strike all the prior strike allegations.
Beckwith
filed a posttrial motion requesting that the trial court dismiss prior strike
allegations in the interest of justice under section 1385 and
Beckwith argued that the court should exercise its discretion to do so
because his current offense was not violent or life-threatening, he would
receive a long sentence even without the prior strikes, and he cooperated with
the police after his arrest. Beckwith
also argued that his two prior strikes were remote, consisting of robbery
convictions in 1985 and 1988.
At the
true Beckwith’s alleged prior convictions of robbery in 1985 and 1988. Beckwith’s prior prison terms included two
for taking a vehicle without the owner’s consent in 1986, and 1999; attempted
grand theft auto in 1988; robbery in 1988; possession of a controlled substance
in 2003 and 2007; and petty theft with a prior in 2006. The court stated that it had taken time to
analyze the Romero motion, including
consideration of Beckwith’s constitutional rights, the interest of society in
fair prosecution, the current charges, the prior convictions, and Beckwith’s
background, character, and prospects.
it. I will admit. I really considered the age of the
strikes. However, based on Mr.
Beckwith’s criminal history and the fact that he has not remained crime free
for such a long period of time, he has suffered so many prison priors, and
based on the seriousness of the current charge, the court does not believe that
Mr. Beckwith is outside the scope or spirit of the third strikes law in the
sentencing scheme.†The court denied the
Romero motion.
Beckwith
addressed the court and asked it to reconsider, arguing that there were
inconsistencies in the evidence, and maintaining his innocence of the burglary
charge. The court replied that Beckwith
had been convicted by a jury, Beckwith’s prior strikes were serious, and “it’s
been time and time again that you have continued to conduct yourself
inappropriately and pick up felony convictions, sir. It is not a matter of you walking in here,
Mr. Beckwith, 25 years later with a clean slate . . . . For the last seven cases, Mr. Beckwith, you
have gone to prison.
[¶] . . . [¶] . . . And for theft-related
offenses. And based on those
circumstances the Romero motion was denied.â€
The trial
court has discretion under the Three Strikes law to dismiss prior conviction
allegations in the furtherance of justice.
(§ 1385, subd. (a); Romero,
take into account the particulars of the defendant’s background, character, and
prospects; his constitutional rights; the nature and circumstances of the
current and prior offenses; and the interests of society, to decide whether the
defendant may be deemed outside the anti-recidivist “spirit†of the Three
Strikes law, in whole or in part. (
148, 161; Romero, at pp.
530–531.) We give deference to the
court’s exercise of its discretion, and will not reverse the court’s denial of
a Romero motion “unless its decision
is so irrational or arbitrary that no reasonable person could agree with
it.†(People v. Carmony (2004) 33 Cal.4th 367, 377.) The Three Strikes law “not only establishes a
sentencing norm, it carefully circumscribes the trial court’s power to depart
from this norm and requires the court to explicitly justify its decision to do
so. In doing so, the law creates a
strong presumption that any sentence that conforms to these sentencing norms is
both rational and proper. [¶] In light of this presumption, a trial court
will only abuse its discretion in failing to strike a prior felony conviction
allegation in limited circumstances.†(
considered the relevant facts and reached its decision impartially and in the
spirit of the law, we affirm “‘even if we might have ruled differently in the
first instance,’†and reverse only when the circumstances are
“‘extraordinary.’†(Ibid.)
No
extraordinary circumstances appear in this case. The trial court properly weighed Beckwith’s
particulars, his constitutional rights, and the nature of his current and prior
offenses. Although no statement of
reasons is required when the court does not dismiss a prior conviction finding (
that although Beckwith’s robbery convictions were in 1985 and 1988, there were
seven other convictions (the most recent in 2007), most of which were theft
related. Beckwith contends that he
“clearly has a drug problem†which was related to his more recent and his
current offenses, but substance abuse is not necessarily a mitigating factor
when a defendant has a long-term problem and does not show that he has pursued
treatment for his addiction. (
1502, 1511.)
The
trial court’s refusal to dismiss the prior strike convictions was not a
decision with which all reasonable people would disagree, and we therefore
conclude that the court did not abuse its discretion in denying the
II. The abstract of
judgment must be amended.
Respondent points
out, and Beckwith concedes, that one additional court security fee and one
additional court construction fee should be added. The omission of mandatory assessments,
surcharges, and penalties may be corrected for the first time on appeal. (People
v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.) One $40 court operations assessment “shall be
imposed†for each felony criminal conviction.
(Penal Code, § 1465.8, subd. (a)(1); People
v. Roa (2009) 171 Cal.App.4th 1175, 1181.)
One $30 fine “shall be imposed†for each felony
construction fee. (Gov. Code, § 70373,
subd. (a)(1); People v. Lopez (2010)
188 Cal.App.4th 474, 480.) The court
imposed only one court operations fee and one court construction fee. Beckwith’s two convictions require that we
order the abstract of judgment corrected to reflect a second $40 court
operations assessment under Penal Code section 1465.8, subdivision (a)(1), and
a second $30 court construction fee under Government Code section 70373,
subdivision (a)(1).
We agree
with respondent that the abstract must be further amended to reflect the
court’s oral pronouncement imposing a total prior serious felony enhancement of
10 years under section 667, subdivision (a)(1).
The court stated that as to count 1 “it is 5 years on each [Beckwith’s
prior robbery convictions], for a total of 10 years.†The minute order, however, states that the court
imposed a single five-year prior serious felony enhancement under section 667,
subdivision (a)(1), and then doubled the five years under the Three Strikes law
for a total of 10 years. The abstract of
judgment also states that one 10-year enhancement was ordered. The abstract of judgment must be amended to
reflect that two separate five-year enhancements were ordered for Beckwith’s
prior serious felonies.
DISPOSITION
The trial court is ordered to
correct the abstract of judgment to reflect a second $40 court operations
assessment pursuant to Penal Code section 1465.8, subdivision (a)(1); a
second $30 court construction fee under Government Code section 70373,
subdivision (a)(1); and two separate five-year enhancements for Beckwith’s
prior serious felonies pursuant to Penal Code section 667, subdivision
(a)(1). The court is directed to forward
a corrected copy of the abstract of judgment to the
In all other respects, the judgment
is affirmed.
NOT TO
BE PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO,
P. J.
ROTHSCHILD,
J.
name="_ftn1" title="">[1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title="">[2]
The parties stipulated that Smalls was convicted of the first degree
residential burglary of Eaton’s apartment.
