P. v. Crockett
Filed 1/29/13 P. v. Crockett CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
AMENI KWAME
CROCKETT,
Defendant and Appellant.
A133339
(Lake
County
Super. Ct.
No. CR923108)
On March 7, 2011, appellant pled no
contest to one count of a six-count information that had been filed against him
in January of that year. That count
charged battery upon a peace officer with
Penal Code section 243, subdivision (c)(2).
serious or violent felony under sections 1170.12, subdivisions (a)-(d) and 667,
subdivisions (b)-(i), as well as a prior prison term served (see § 667.5,
subd. (b)), both of which appellant admitted at the time of his no contest plea. The court later denied appellant’s motion,
brought under People v. Superior Court (
to dismiss his prior strike, denied him probation, and sentenced him to serve
five years in state prison. Appellant
appeals, claiming an abuse of discretion by the trial court, but we affirm the
judgment entered, including the sentence imposed.
II. FACTUAL AND
PROCEDURAL BACKGROUND
On
July 18, 2010, at about 5:30 p.m., three officers of the Clearlake
Police Department responded to a call from the Lakeland Mobile Home Park
regarding a violation of a restraining order by appellant. The officers—specifically Officers Ramirez,
Lenz, and Carpenter—were familiar with appellant and, more specifically, the
restraining order against him, which required that he stay 100 yards away from
a resident of that mobile home park, Kevin Streef. Indeed, Officer Ramirez had arrested
appellant earlier that same day for violating the same restraining order.
After
confirming that appellant had, indeed, returned to the mobile home park and was
again calling Streef names, the officers went to the trailer where appellant
had last been seen to arrest him.
The
officers knocked on the front door of the trailer, but the occupants, which
clearly included appellant because they could hear his voice inside, refused to
open the door. A woman occupant,
Christine Omoa, did so only after Officer Ramirez threatened to send a canine
into the trailer. When the door was
opened, the officers could see appellant inside; he attempted to run into
another room in the trailer, but Officer Lenz ran inside and grabbed appellant
by one of his arms. Appellant
immediately responded by saying: “Don’t fucking
touch me,†pulled away from Lenz’s grasp, and said: “Fuck you.â€
Officer
Lenz then tried to restrain appellant by, first, grabbing his left arm and
trying to get both arms behind his back.
But appellant refused to comply with the officers’ demand, so they
brought him to the floor of the trailer to try to get control of him. Following a struggle, they managed to
handcuff appellant, but he still continued to be combative and resistant to
arrest.
The
officers then tried to get appellant into their patrol car, but he refused to
walk, and so had to be carried there.
Once there, Officer Lenz had to force appellant into the back seat and
place a seat belt on him; appellant resisted all this, yelled repeatedly at
Lenz, and threatened to head butt him.
He also began kicking the side window of the back of the patrol car and
succeeded in knocking that window out of the doorframe.
The
officers determined that they would have to place leg restraints on appellant,
but appellant resisted that effort, and refused to lift his legs, pulled them
away from the officers, and continued using them to kick at them. Officer Lenz then leaned into the car to
attempt to place the restraints on appellant’s legs, but appellant kicked Lenz
on the right side of his head, causing Lenz’s head to hit the door of the
car. Lenz suffered a laceration to his
face and was bleeding from it.
The
officers then managed to pull appellant out of the patrol car so all of them,
and not just Lenz, could attempt to control him. But appellant continued to resist the efforts
to put the leg restraints on him by thrashing around. The officers were finally able to get the leg
restraints on appellant and placed him into the patrol car and took him to
police headquarters and jail.
By
an information filed on January 7, 2011,
appellant was charged with six counts, including: battery upon an officer
resulting in injury (§ 243, subd. (c)(2)), obstructing an officer in the
performance of his duties (§ 69); defacing property with graffiti
(§ 594); contempt of court by disobeying a restraining order (§ 166,
subd. (a)(4)) (two counts); and resisting a peace officer in the performance of
his duties (§ 148, subd. (a)(1)).
As noted above, the information also alleged that appellant had, in
2007, been convicted of a prior serious or violent felony and had been
sentenced to a prior prison term.
(§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i), & 667.5, subd.
(b).)
On
March 7, appellant pled no contest to the first count of the information and
admitted both the strike and prior prison term allegations.
On
May 31, appellant filed a motion under section 1385 to strike the allegation of
his 2007 felony conviction in the interests of justice. The prosecution filed an opposition to that
motion.
On
June 7, the court ordered a diagnostic
evaluation of appellant to be undertaken by the Department of Corrections
(CDC) pursuant to section 1203.03. Trial
defense counsel expressly agreed that such a report should be sought. That report was filed with the court on or
about August 24.
On
September 12, the trial court denied appellant’s section 1385 motion, denied
him probation, and sentenced him to a total of five years in state prison.
Appellant
filed a timely notice of appeal three
days later.
DISCUSSION
Our
standard of review of a matter such as this is, clearly, abuse of
discretion. Our Supreme Court made this
clear in its most recent decision on this subject (a decision which, rather
curiously, is not referenced in either of appellant’s briefs to us),
(Carmony).
In
Carmony, the court first noted some
of its earlier decisions which “implied†that abuse of discretion was the
proper standard of review of a denial of a section 1385 motion to strike an allegation
of a prior conviction, and then cited numerous Court of Appeal decisions so
holding. It then stated: “Like our Courts of Appeal, we follow our own
lead and hold that a trial court’s refusal or failure to dismiss or strike a
prior conviction allegation under section 1385 is subject to review for abuse
of discretion. We reach this holding not
only because of the overwhelming case law, but also as a matter of logic. ‘Discretion is the power to make the
decision, one way or the other.’
[Citation.] We have previously
concluded that a court’s decision to strike a qualifying prior conviction is
discretionary. [Citation.] As such, a court’s decision
requires some exercise of discretion.
Because these two decisions are flip sides of the same coin, we see no
reasoned basis for applying a different standard of review to a court’s
decision not to strike.†(
The
Carmony court then went on to explain
why, in the case before it, there was no abuse of discretion. It stated:
“In reviewing for abuse of discretion, we are guided by two fundamental
precepts. First, ‘ “[t]he burden is
on the party attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary.
[Citation.] In the absence of
such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.†’ [Citations.]
Second, 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.’ †’ [Citations.]
Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.
“Because
‘all discretionary authority is contextual’ [citation], we cannot determine
whether a trial court has acted irrationally or arbitrarily in refusing to
strike a prior conviction allegation without considering the legal principles
and policies that should have guided the court’s actions. We therefore begin by
examining the three strikes law.
“ ‘[T]he
Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts' discretion in sentencing repeat
offenders.’ [Citation.] To achieve this end, ‘the Three Strikes law
does not offer a discretionary sentencing choice, as do other sentencing laws,
but establishes a sentencing requirement to be applied in every case where the
defendant has at least one qualifying strike, unless the sentencing court
“conclud[es] that an exception to the scheme should be made because, for
articulable reasons which can withstand scrutiny for abuse, this defendant
should be treated as though he actually fell outside the Three Strikes
scheme.†’ [Citation.]
“Consistent
with the language of and the legislative
intent behind the three strikes law, we have established stringent
standards that sentencing courts must follow in order to find such an
exception. ‘[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(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.]
“Thus,
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. For example, an abuse of
discretion occurs where the trial court was not ‘aware of its discretion’ to
dismiss [citation], or where the court considered impermissible factors in
declining to dismiss [citation].
Moreover, ‘the sentencing norms [established by the Three Strikes law
may, as a matter of law,] produce[] an “arbitrary, capricious or patently
absurd†result’ under the specific facts of a particular case. [Citation.]
“But
‘ [i]t is not enough to show that reasonable people might disagree about
whether to strike one or more’ prior conviction allegations. [Citation.]
Where the record is silent [citation], or ‘[w]here the record
demonstrates that the 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]. 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. Of course, in
such an extraordinary case—where the relevant factors described in
conviction and no reasonable minds could differ—the failure to strike would
constitute an abuse of discretion.†(
376-378; see also In re Large (2007)
41 Cal.4th 538, 550-551; People v. Leavel
(2012) 203 Cal.App.4th 823, 836-837; People
v. Carrasco (2008) 163 Cal.App.4th 978, 992-994; People v. Lee (2008) 161 Cal.App.4th 124, 127-132.)
In
this case, the trial court clearly applied the abuse of discretion standard
properly. It stated, in denying
appellant’s Romero motion, that
“given his what I believe to be a fairly lengthy history, including at least
two prior felony convictions, I believe that this defendant is someone who
comes within the spirit of the Strike’s sentencing provisions. I think it’s appropriate to apply them. And I will deny the Romero motion.â€
In
accordance with Carmony and the
similar authority cited above, the trial court clearly did not abuse its
discretion.
First
of all, appellant had a long criminal record dating back to 1993. It included:
(1) grand theft from a person (§ 487.2), for which appellant was
sentenced to 60 days in jail and then granted probation, which was thereafter
revoked; (2) numerous parole violations in the period from 1995 to 2002; (3)
trespass and tampering with a vehicle (§ 601, subd. (a)(1) and Veh. Code,
§ 10852); (4) evading a peace officer and hit and run resulting in an injury
(Veh. Code, §§ 2800.2; 20001); (5) driving on a suspended license (Veh.
Code, § 14601.1); (6) welfare fraud and perjury (Welf. & Inst. Code,
§ 10980, subd. (c); § 118); (7) battery (§ 243, subd. (e)(1)); (8) grand theft of a firearm,
petty theft with a prior, and being a felon in possession of a firearm
(§ 487, subd. (d), § 666; § 12021, subd. (a)(1));
(9) unauthorized entry into a dwelling (§ 602.5, subd. (a)); (10) fighting
(§ 415.1); and (11) failure to appear in court (§ 1320). The probation report also noted that, in
1997, appellant was shot five times during a “drug war.â€
Second,
the current offense involved significant violence, including twice coming close
to the victim’s residence and yelling at him, and then—clearly more
importantly—swearing at the police who had come to arrest him, fighting with
two of them, kicking out a window in the patrol car, refusal to put on leg
restraints, and then kicking and injuring Officer Lenz as the latter was trying
to affix those restraints.
Third,
the diagnostic study of appellant made by the CDC was decidedly negative
regarding appellant. It stated, among
other things, that “[o]verall . . . Mr. Crockett was elusive and
inconsistent with his reported history during the interview and when
administered the PCL-R-2. . . . Mr. Crockett appeared to be most
inconsistent with regard to his reported substance abuse, employment, and
mental health history. . . . [¶] Mr. Crockett evidenced
poor insight. He reported that he did
not ‘know why’ he had been singled out by his neighbor and felt that he was
being persecuted. . . . Mr. Crockett also reported that he feels
he is being ‘wrongfully punished’ because he does not remember hurting the
officer. . . . [¶] Overall, Mr. Crockett was inconsistent
with regard to his reported history in the interview with this evaluator,
answers to test items, and previous reported history as outlined in court
records and previous mental health records.
What is known, is that Mr. Crockett is [a] man who has a lengthy
criminal history beginning in adolescence and positive for two previous prison
convictions including Grand Larceny and a Firearms charge. Additionally, he reported a ‘lifestyle’
positive for substance abuse, criminality, and [a] general parasitic approach
to life including residing with and accepting money from his mother, and later
relying on the government for Social Security Income benefits for medical and
mental health problems. . . . Additionally, it should be noted
that Mr. Crockett reported that he was able to maintain ‘steady’ employment for
three years between 1995 and 1998 while allegedly experiencing such detrimental
systems as to warrant the need for SSI.
Mr. Crockett reported that he first applied for SSI in 2004, after
receiving treatment for mental health problems for approximately a year. He reported that he was awarded SSI in 2006
which allowed him to stop requiring money from his mother for survival. Given
the results of testing completed for this evaluation, it is possible that he
feigned mental health symptoms in order to assist with his application for SSI.
. . . [¶] Concerns [i.e., regarding ‘readiness for release’] are that Mr.
Crockett is an uneducated man with a lengthy criminal history and propensity
for violent acting out.â€
As
noted above, the trial court had received and reviewed the August 24 CDC report
before the September 12 sentencing hearing.
Neither party objected to it—along with a similarly negative probation
report—being received into evidence.
In
his briefs to this court, appellant’s only specific argument as to why the
trial court abused its discretion by not striking his 2007 conviction under
section 487, subdivision (d), for grand theft of a firearm is that “the trial
court here refused to consider whether appellant was receiving Social Security Disability
benefits, stating, ‘Well, for the record, I am not considering the fact whether
anybody was ever on SSI. It is
irrelevant to the sentencing hearing.’. . . In finding that the
Social Security Disability benefits were ‘irrelevant,’ the trial court not only
failed to exercise its ‘informed discretion,’ but aso [sic] denied appellant of
his due process rights guaranteed by the state and federal Constitutions to
have the court exercise informed sentencing discretion [citations].
This
same argument regarding the trial court’s refusal to hear argument about
appellant’s SSI benefits is repeated in appellant’s reply brief; indeed, it is
the only argument made there.
An
examination of the trial court record makes clear that this argument is without
merit. Yes, the trial court
the fact whether anybody was ever on SSI.
It is irrelevant to the sentencing hearing.†But what appellant’s briefs ignore is the
fact that the trial court made this comment in
the course of agreeing with
counsel that the report of the CDC unfairly singled out appellant for
improperly applying for and receiving SSI benefits. Thus, in his argument to the trial court on
the Romero motion, appellant’s trial
counsel vigorously attacked the tenor and thrust of the CDC report.
Specifically,
he argued: “I’m a little offended by the psychologist report. I’ve gotten a lot of them. I’ve never seen one—this is about two to
three times the length of the usual report I get, and it seems to me
there’s—there’s a lot of irrelevant material here, a lot of—it just comes off
as a little malicious. You know, some of
the terms that are used to describe the defendant regarding his having SSI,
regarding his living with his mother and so on.
I just feel that they’re a little unprofessional and uncalled for and
reflects bias and you know, some kind of alter [sic] conservative bias that the
writer has against people on welfare, against people on SSI, so on and so
forth. But I just note that, you know,
maybe 20 percent of our country is similarly situated. So I just thought that that was—that was
inappropriate. [¶] He’s entitled
to his political beliefs and social prejudices, but I really thought that he
really went overboard and taking this out on the defendant. He said there’s no evidence of him ever
having a mental illness. Well, he got
SSI; so obviously somebody thought he did.
And he takes minor discrepancies about certain things that in—in the
ordinary course of things one would attribute to the forgetfulness, or
whatever. And it just seemed like he
really, you know, wanted to set the defendant up. It’s one thing for him to say, you know, he’s
got a criminal record, and he’s got this, and he’s got that, and he’s not
appropriate for probation. But I really
think this was a character assassination on my client.â€
At this point, the
trial court interrupted appellant’s trial counsel and stated, as noted
above: “Well, for the record, I’m not
considering the fact whether anybody was ever on SSI. It’s irrelevant to the sentencing
hearing.â€
As
noted above, by this statement the
trial court was making clear its agreement
with the argument being made by
appellant’s trial counsel by stating that it was not going to endorse the
CDC negative use of appellant’s application for and receipt of Social Security
payments in making its decisions either regarding (a) his Romero motion or (b) the issue of probation. Nonetheless, in his briefs to us, appellant
seizes upon the trial court’s statement that his receipt of SSI payments was
“irrelevant†to the selection of the sentence to argue that the trial court
failed to exercise informed discretion.
In the context of his objection to the tone of the psychologist’s
sentencing report, trial counsel argued that the SSI payments were based on a
diagnosis of mental illness relevant to the sentencing decision. However, the evidence of the basis of the SSI
diagnosis are statements by appellant included in the psychologist’s report, which
was reviewed by the trial court; no other offers of evidence were made. Moreover, the report refers to prior prison
evaluations, as well as to a jailhouse evaluation of appellant conducted
shortly before trial. These facts were
part of the psychologist’s evaluation and ultimate conclusion that appellant
was not mentally ill at the time of sentencing and hence that it was “unlikelyâ€
that he “will be successful on probation.â€
That extended (11-page) report discussed appellant’s alleged mental ills
thoroughly and concluded that appellant’s “mental health symptoms are vague and
include ‘voices’ which he did not quantify or qualify. His reported onset of these ‘voices’
vacillated between 1992 when he was shot, and 2002 when he reported that he
first sought ‘help’ for them. It should
be highlighted that Mr. Crockett had been routinely screened for mental heath
problems no less than seven times between 1995 and 2002 and it was determined
that he did not need a mental health evaluation or further treatment . . . .
Given the results of testing completed for this evaluation, it is possible that
he feigned mental health symptoms in order to assist with his application for
SSI.â€
The
trial court had the psychologist’s entire
report before it, and was entitled to—and obviously did—rely upon its
conclusion that appellant was not actually
suffering from mental illness. It
did not, therefore, fail to exercise its discretion properly regarding
appellant’s mental condition at the time of sentencing.
In
any event, and particularly in view of appellant’s lengthy criminal history, we
find no abuse of discretion in the trial court’s denial of his section 1385
motion.
The
judgment, including the sentence imposed, is affirmed.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
further statutory references are to the Penal Code, unless otherwise noted.
further dates noted are in 2011.
