P. v. Branson
Filed 3/2/12 P. v.
Branson 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ERVIN GRANT BRANSON, JR.,
Defendant and
Appellant.
C067532
(Super.
Ct. No. CM032486)
Defendant Ervin
Grant Branson, Jr., entered a negotiated no contest plea to furnishing
marijuana to a 14-year-old girl (Health & Saf. Code, § 11361, subd.
(b)) and misdemeanor molesting or annoying the same girl (Pen. Code,
§ 647.6, subd. (a)(1)). He
also admitted a prior strike, arising from a 1989
Defendant now
appeals, claiming the trial court abused its discretion by denying his
felony conviction allegation.
name="_ftnref1" title="">[1] We disagree and shall affirm the judgment.
DISCUSSION
Prior to
sentencing, defendant asked the court to consider striking the allegation he
suffered a 1989 strike conviction, based on the age of the conviction, his
youth at the time of that conviction, and the nonviolent nature of the current
crime.
The court examined
the relevant law, the parties’ briefs, and defendant’s records, including the
court denied the motion, stating that based on “defendant’s lengthy
violations, I do not see the age of the strike prior as a factor favorable to
the defendant.”
We see no abuse of
discretion.
Penal Code section
1385 gives the trial court authority, on its own motion or upon application of
the prosecution, “and in furtherance of justice,” to order an action
dismissed. (§ 1385, subd. (a).) In Romero,
the California Supreme Court held a trial court may utilize section 1385 to
strike or vacate a prior strike for purposes of sentencing under the “three
strikes” law, “subject, however, to strict compliance with the provisions of
section 1385 and to review for abuse of discretion.” (Romero,
supra, 13 Cal.4th at
p. 504.)
“[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.) Under this standard, the defendant bears the
burden of establishing an abuse of discretion.
In the absence of such a showing, the trial court is presumed to have
acted correctly. The appellate court may
not substitute its judgment for that of the trial court when determining
whether the trial court’s decision to strike the prior conviction was
proper. (Id. at pp. 376-377.)
“‘[I]n ruling whether to strike or vacate a prior serious and/or violent
felony conviction allegation or finding under the Three Strikes law, on its own
motion, “in furtherance of justice” pursuant to Penal Code section 1385[,
subdivision ](a), or in reviewing such a ruling, the court in question 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.’
[Citation.]” (
trial court balanced the relevant facts and reached an impartial decision in
conformity with the spirit of the law, we shall affirm the trial court’s
ruling, even if we might have ruled differently in the first instance’
[citation].” (Id. at p. 378.)
Here, before
denying the Romero motion, the court
stated it had considered the probation report, which sets forth at some length
the particulars of defendant’s background, character, and prospects, including
his family background, marital status, personal history, education, and
employment history. The 14-year-old
victim reported that, over a two-week period, defendant (whom she called
“Uncle”
gave her marijuana, kissed her, touched her buttocks under herclothes, and digitally penetrated her.
Photos of the victim in her underwear were found on defendant’s cell
phone, and he sent her a text message referring to condoms. In contrast, defendant’s written statement
omits any reference to facts underlying the molestation conviction; he states
he only smoked marijuana with the victim because she brought it to his home.
to the victim as a refuge from her parents, who engineered his arrest in order
to steal his marijuana.
The probation
report also contains a standard criminal record summary prepared by the
probation department, which identifies the crimes with which defendant has been
charged, the dates and disposition of those charges, the jurisdictions in which
the crimes were committed, and the dates of his nine parole violations. It shows that defendant’s criminal history
began with a burglary he committed in 1985 as a juvenile. It continued with convictions for robbery in
1989 (followed by four parole violations between 1991 and 1995), misdemeanor
check fraud in 1995, felony check fraud in 1996 (followed by three parole
violations between 1999 and 2000), and two counts of burglary in 2002 (followed
by parole violations in 2007 and 2008).
More recently, defendant suffered misdemeanor convictions in 2006 and
2007 for possessing articles whose manufacturer’s serial numbers had been
altered.
The trial court
did not abuse its discretion in concluding defendant cannot be deemed outside
the spirit of the three strikes law as to the strike, and may not be treated as
though he had not previously suffered it.
(Cf. People v. Williams (1998)
17 Cal.4th 148, 161-164 (Williams).) The mere age of the strike did not require
the trial court to strike it, particularly where, as here, defendant did not
live a legally blameless life between the strike and his commission of the
present offenses. (Cf.
58 Cal.App.4th 809, 813.) We hold
the trial court’s order refusing to strike defendant’s strike was sound, and
not an abuse of discretion. (Cf.
v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055;
49 Cal.App.4th 381, 389.)
Defendant argues
the court lacked “any meaningful information regarding the facts underlying
[his] prior convictions” and parole violations, without which it could not have
exercised its informed discretion concerning whether to grant his request. Therefore, its decision to deny his request
“can only be considered an arbitrary abuse of discretion.”
We reject
defendant’s suggestion that the court could not have properly exercised its
discretion without a full understanding of the facts underlying each of his
prior convictions and parole violations.
He cites no authority for this proposition, and we are aware of
none. Nor are we convinced the trial
court needed to know anything more than it knew in this case in order to
properly consider the “nature and circumstances of his present” and prior
offenses before concluding he should not be treated as though he had not
previously been convicted of a serious felony.
(Williams,
probation report considered by the trial court].)
DISPOSITION
The judgment is
affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
BUTZ , J.
name="_ftn1" title="">[1] People
v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
name="_ftn2" title="">[2] Defendant apparently later admitted he
provided the marijuana to the victim, “which he now realizes was not a good
idea.”
