P. v. Bush
Filed 8/22/12 P. v. Bush CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH EVAN BUSH,
Defendant and Appellant.
B236677
(Los Angeles
County
Super. Ct.
No. NA023385)
APPEAL from
a judgment of the Superior Court
of
County, Richard R. Romero, Judge. Affirmed.
Arielle
Bases, 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, Scott A. Taryle and
Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
INTRODUCTION
This case
comes before us a second time. In 1996,
a jury convicted defendant Joseph Evan Bush on 13 counts of
used a deadly weapon in the commission of all but three of the offenses. In a bifurcated proceeding, the trial court
found defendant had suffered a prior serious felony conviction for federal bank
robbery. (Pen. Code, §§ 667, subd.
(a), 1170.12.)
title="">[1] Defendant was sentenced to an aggregate
judgment (People v. Bush (Apr. 14,
1997, B100672) [nonpub. opn.]). The
California Supreme Court denied defendant’s petition for review.
On September 27, 2010, defendant filed a
petition for writ of habeas corpus in the trial court, challenging the
sufficiency of the evidence to support the strike allegation. The trial court granted the petition on February 8, 2011, vacated defendant’s
sentence and ordered a retrial of the strike allegation.
Following
the retrial on May 26, 2011,
the trial court found defendant’s federal bank robbery conviction qualified as
a prior serious felony conviction under California
law. In anticipation of resentencing,
defendant filed a motion to dismiss the
strike allegation in light of his post-conviction behavior while incarcerated
in this case (§ 1385; People v.
Superior Court (Romero) (1996) 13
Cal.4th 497). On August 16, 2011, the trial court heard and denied
the motion and re-imposed the aggregate state prison term of 43 years. Defendant appeals, contending the trial court
abused its discretion in declining to dismiss his prior strike in the
DISCUSSION
It is well
established that “in ruling whether to strike or vacate a prior serious and/or
violent felony conviction allegation or finding under the Three Strikes law . .
. or in reviewing such a ruling, the court . . . 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 [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.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review
the trial court’s decision not to dismiss a prior strike allegation under
section 1385 for abuse of discretion. (
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. [¶] . . .
[¶] . . . ‘[I]t is not enough to show that reasonable people might
disagree about whether to strike one or more’ prior conviction
allegations. . . .
Because the circumstances must be ‘extraordinary . . . by
which a career criminal can be deemed to fall outside the spirit of the very
scheme within which he squarely falls once he commits a strike as part of a
long and continuous criminal record, the continuation of which the law was
meant to attack’ [citation], the circumstances where no reasonable people could
disagree that the criminal falls outside the spirit of the three strikes scheme
must be even more extraordinary.” (Id.
at p. 378.)
Several
factors emphasized by defense counsel and acknowledged by the trial court
arguably supported defendant’s request to dismiss the prior strike allegation
in the interest of justice, based on his post-conviction behavior: Notwithstanding his 10 year history of
disciplinary actions for assaultive behavior, defendant had been
misconduct-free during the most recent five years of incarceration in protective
custody, having provided information to authorities in 2005 to thwart attacks
on correctional officers.
name="_ftnref2" title="">
a community college in 2008, mentored and tutored other inmates and began
receiving mental health services and psychotropic drugs. According to defendant and his counsel,
defendant intended to continue his rehabilitative efforts.
On the
other hand, as the trial court found in declining to exercise its discretion to
dismiss the strike allegation, defendant had engaged in a crime spree, committing
13 robberies while on federal parole. He
had been armed with a deadly weapon at the time, albeit a pellet gun. The court also noted defendant had made
similar assurances that he would engage in rehabilitation prior to being
sentenced in federal court on his bank robbery conviction.
Defendant
contends the trial court abused its discretion by failing to consider all
relevant factors because it failed to address some particulars of his
background, which placed him outside the primary purpose of the Three Strikes
law. Specifically, defendant faults the
court for failing to consider his age at the time of sentencing, 47 years, and
the fact he faced a substantial term of incarceration even if the strike
allegation were dismissed, making it unlikely defendant would reoffend upon his
release from prison. Additionally,
defendant maintains the trial court failed to consider his rehabilitative
efforts (college degree, mentoring and tutoring other inmates) demonstrating he
no longer posed a danger to society.
Defendant
points to no requirement that the trial court specifically address every factor
he raises in his request to dismiss his prior strike conviction. At the sentencing hearing, the court
entertained argument from the prosecutor and defense counsel, both of whom
addressed the probability of defendant’s recidivism in light of his age and
rehabilitative efforts. Defendant
brought these factors to the court’s attention, and we presume the court
considered them in the absence of an affirmative record to the contrary. (People
v. Myers (1999) 69 Cal.App.4th 305, 310; cf. People v. Carmony, supra,
33 Cal.4th. at p. 378 [“the
law creates a strong presumption that any sentence that conforms to [the Three
Strikes law’s] sentencing norms is both rational and proper”]) Since the trial court considered the relevant
factors, and there was a basis for the court’s decision not to dismiss
defendant’s prior conviction, we find no abuse of discretion in that decision. (See Carmony,
supra, at pp. 374-375.)
DISPOSITION
The
judgment is affirmed.
JACKSON,
J.
We concur:
PERLUSS,
P. J.
ZELON,
J.
name="_ftn1" title="">
further statutory references are to the Penal Code.
name="_ftn2" title="">
the California Department of Rehabilitation and Corrections to review
confidential documents relating to this claim by defendant. After reviewing the sealed transcript of the
hearing, we find it is of no assistance to defendant.
