P. v. Chapman
Filed 10/15/08 P. v. Chapman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Appellant, v. RICHARD ALAN CHAPMAN, Defendant and Respondent. | E044176 (Super.Ct.No. RIF125129) OPINION |
APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. Affirmed.
Rod Pacheco, District Attorney, Daniel Ackerman and Matt Reilly, Deputy District Attorneys, for Plaintiff and Appellant.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Respondent.
In 1985, the defendant was convicted of two sex offenses. In 2007, a jury found him guilty of failing to register as a sex offender (Pen. Code, 290, subd. (g)(2)[1]), and the court made true findings on allegations he had previously served a prison term (prison prior) (Pen. Code, 667.5, subd. (b)), and that he had been previously convicted of two serious or violent felonies (Strikes). (Pen. Code, 667, subd. (e)(ii).) The trial court granted a defense motion to strike one of the Strikes and sentenced defendant to seven years in state prison, consisting of the upper term of three years for the failure to register, doubled for the remaining Strike, plus a one-year enhancement for the prison prior.
The People appeal, arguing the trial court abused its discretion in granting the motion to strike one of the prior serious felony convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). (Pen. Code, 1238, subd. (a)(10).)
BACKGROUND
In 1985, defendant molested his eight-year-old stepdaughter and was convicted of two counts of lewd and lascivious acts with a child under the age of 14 (Pen. Code, 288, subd. (a)), and placed on probation. As a result of this conviction, defendant is under a lifetime requirement to register as a sex offender. (Pen. Code, 290 [hereafter, 290 registration].)
On June 19, 1987, defendants probation was revoked, for reasons not explained in the probation report,[2]and he was sentenced to state prison for 10 years. Between his release from prison on parole and until June 2005, defendant complied with his 290 registration requirements 24 times, and failed to register five times. On December 23, 1996, defendant was convicted of a misdemeanor for failing to register. On September 1, 1999, defendant was convicted of a misdemeanor violation of being under the influence of controlled substances (Health & Saf. Code, 11550, subd. (a)), for which he received probation. On June 27, 2001, defendant was convicted and sentenced to prison for a felony violation of his duty to register.
In June 2005, defendant was arrested on a warrant for violating his parole when his parole agent learned he had left a residential drug treatment facility and failed to report for an appointment with the probation officer. He was later arrested for that violation and was subsequently charged with failing to register as a sex offender, when it was learned that the address he listed as his address at the time of his arrest did not match the most recent address shown on his 290 registration. It was further alleged that he had served a prior prison term (Pen. Code, 667.5, subd. (b)), and had previously been convicted of two prior Strikes. (Pen.Code, 667, subds. (c), (e)(2)(A); 1170.12, subd. (e)(2)(A).) He was convicted by jury of the substantive count of failing to register, and the priors were found true in a subsequent court trial.
Defendant filed a Romero motion to strike one of the Strikes, which was granted on August 10, 2007. The courts reasons for exercising its discretion to strike (Pen. Code, 1385) were: (1) the conduct relating to the prior serious felony convictions occurred before 1985 and there was no interval between the commission of the first offense and the second offense; (2) the convictions underlying the Strikes are 21 years old; (3) while defendant has had three additional convictions since the 1985 conviction (two misdemeanors, one felony), they are not numerous and are not crimes of violence; and (4) the current offense did not involve violence or any loss, financial or otherwise, to any particular person. Defendant was thereafter sentenced to seven years in prison and the People appealed.
DISCUSSION
The People contend that the trial court abused its discretion by striking one of the defendants 1985 prior serious felony convictions. (People v. Williams (1998) 17 Cal.4th 148, 164.) We disagree.
Penal Code, section 1385, subdivision (a), authorizes a trial court to act on its own motion to dismiss a criminal action in furtherance of justice. This power includes the ability to strike prior conviction allegations that would otherwise increase a defendant's sentence. (People v. Garcia (1999) 20 Cal.4th 490, 496.)
A courts discretionary decision to dismiss or to strike a sentencing allegation under Penal Code section 1385 is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373.) The burden is on the appellant to affirmatively show in the record that error was committed by the trial court. (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.) A decision will not be reversed merely because reasonable people might disagree; an appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. (People v. Philpot (2004) 122 Cal.App.4th 893, 904-905.) We may not substitute our conclusions for those of the trial court. (People v. McGlothin (1998) 67 Cal.App.4th 468, 477.)
In deciding 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 (Pen. Code, 1385, subd. (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 schemes 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, supra, 17 Cal.4th at p. 161.) When the balance of these factors falls in favor of the defendant, a trial court not only may but should exercise the powers granted to it by the Legislature and grant a dismissal in the interests of justice. (People v. Carmony, supra, 33 Cal.4th at p. 375 [italics in original].)
Thus, a trial court abuses its discretion when it dismisses a prior conviction solely to accommodate judicial convenience, due to court congestion, because a defendant pleads guilty (People v. Carrasco (2008) 163 Cal.App.4th 978, 993), or dismisses due to a personal antipathy for the effect that the Three Strikes law would have on defendant (People v. Dent (1995) 38 Cal.App.4th 1726, 1731), or takes little or no account of the particulars of defendants background, character and prospects. (People v. Thornton (1999) 73 Cal.App.4th 42, 49.)
The People argue that the court abused its discretion by taking defendant out of the Three Strikes sentencing scheme due to the courts characterization of the defendants crime as a victimless crime, and because of its disagreement with the state legislatures [sic] decision to make the offense of failing to register as a sex offender a crime eligible for enhanced punishment. The argument mischaracterizes the courts reasons for striking the Strike and the record does not support this contention.
The court did not strike the Strike because it felt that failing to register is a victimless crime, or any other improper reason. The court did refer to the fact that since 1987 (an interlude of approximately 20 years) defendants convictions have been limited to two convictions (one misdemeanor, one felony) for failing to register as a sex offender and a misdemeanor conviction for being under the influence. The court characterized these offenses as not involving a direct victim, other than society itself. It did not state it was striking a Strike because the failure to register as a sex offender is a victimless crime or because it disagreed with the law. To the contrary, it was carrying out the mandate of People v. Williams, supra, by considering the nature and circumstances of defendants prior serious and/or violent felony convictions, along with the other criteria, in exercising its discretion. (People v. Williams, supra, 17 Cal.4th at p. 161.)
The People cite Lockyer v. Andrade (2003) 538 U.S. 63, 71-75 [123 S.Ct. 1166, 155 L.Ed.2d 144] as support for the notion that a failure to register as a sex offender may justify a Three Strikes sentence. We have no quarrel with this proposition. However, the court did not strike one of the Strikes because it felt a third-strike sentence for failing to register would violate the federal constitutional prohibition against cruel and unusual punishment.
Instead, the trial court weighed all the factors, acknowledged the defendant has not led a blameless life and that he was resistant to compliance with his registration obligations. The court was fully aware of the balancing that must take place to consider the rights of society, as represented by the People, in enforcing the sentencing scheme, and in prosecuting defendant. The court even appears to have accepted the Peoples position that the defendants prison sentence on revocation of probation arose from domestic violence episodes, although the probation report does not mention them and there was no evidence submitted to the trial court to support this assertion.
The court weighed the arguments advanced by both sides, acknowledging the defendants criminal record and his resistance to complying with his 290 registration requirements. The court did not disagree or reject the points raised by the People, but exercised its discretion to strike one of the Strikes because of the weight one puts on all the factors and such. The court did not rely on any inappropriate factors.
On this record, we cannot find that the courts decision was so irrational or arbitrary that no reasonable person could agree with it.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Hollenhorst
Acting P. J.
s/Richli
J.
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[1] Renumbered as Penal Code section 290.18, subdivision (b), effective October 13, 2007.
[2] In its opposition to defendants Romero Motion, the People refer to a supplemental probation report in the original lewd and lascivious acts case, dated May 8, 1987, as suggesting the defendants probation was revoked due to separate instances of domestic violence involving pushing his wife to the ground, causing a scraped knee. However, no such probation report is included in the record on appeal and no other evidence was introduced at the court trial on the prior convictions, the Romero hearing, or at the sentencing hearing to support this assertion.
