P. v. Fleming
Filed 7/24/12 P. v. Fleming CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHAEL RICHARD FLEMING,
Defendant and
Appellant.
2d Crim. No.
B237026
(Super. Ct.
No. F453482)
(San
Luis Obispo County)
Michael Richard Fleming
appeals a judgment entered following his nolo contendere plea to one count of
passing checks with insufficient funds, with an admission that he suffered a
prior felony strike conviction for attempted
carjacking. (Pen. Code,
§§ 476a, subd. (a), 664, 215, 667, subds. (b)-(i), 1170.12, subds.
(a)-(d).)
abuse its discretion by denying his motion
to strike a prior serious felony conviction and affirm. (People
v. Superior Court (Romero) (1996)
13 Cal.4th 497, 504.)
FACTS AND PROCEDURAL HISTORY
On November
22, 2010, the
Obispo County district attorney charged Fleming with three counts of
passing checks with insufficient funds and one count of grand theft by false
pretenses. (§§ 476a, subd. (a),
487, subd. (a).) The district attorney
also alleged that in 2005, Fleming suffered a serious felony strike conviction
for attempted carjacking. (§§ 664,
215, 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
On February 9,
2011,
Fleming waived his constitutional rights
and pleaded nolo contendere to one count of passing checks with insufficient
funds and admitted suffering the prior strike conviction. In accordance with a plea agreement, his
maximum sentence would be a doubled low-term of 16 months (32 months). Prior to sentencing, Fleming filed a motion
pursuant to People v. Superior Court
(Romero), supra, 13 Cal.4th 497,
504, requesting the trial court to exercise its discretion and strike the prior
serious felony conviction. Among other
things, Fleming asserted that he had been a dependent child who had used
illegal drugs but he was now employed and had a family.
At the sentencing hearing, the district
attorney opposed the Romero motion
and pointed out that the attempted carjacking involved an elderly man who
suffered a broken ankle after he was knocked to the ground and kicked by
Fleming and his crime partners. The
district attorney added that Fleming entered into a plea agreement regarding
attempted carjacking and admitted inflicting great bodily injury upon the
victim. In response to the trial judge's
inquiry, Fleming stated that he served four and one half years imprisonment and
was on parole at the time he committed the present offense. The trial court then denied the motion,
stating that it could not "get past" the circumstances of the prior
strike conviction, that Fleming had been released from prison only recently,
and that he "hasn't led a blame-free life." The court also noted that a volunteer paid a
portion of the restitution in the present case but has since regretted the
payment.
Fleming appeals and contends that the trial
court abused its discretion by denying his Romero
motion.
DISCUSSION
Fleming argues that the 2005 attempted
carjacking was his first felony offense and that he was only 19 years old when
he committed that crime. He adds that he
wrote the insufficient funds checks in order to provide for his wife and
child. Fleming contends that the trial
court improperly emphasized the factual circumstances of the prior strike
conviction, pointing out that prior serious felony convictions frequently are
senseless and violent crimes.
Pursuant to section 1385, subdivision (a),
the trial court may strike a prior felony conviction "in furtherance of
justice." (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court and the reviewing 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 scheme's spirit, in whole or in part . . . ." (Ibid.) At the very least, the reason for dismissing
a strike conviction must be that which would motivate a reasonable judge. (Id.
at p. 159.)
We review rulings regarding motions to strike
prior felony convictions pursuant to a deferential abuse of discretion standard. (People
v. Williams, supra, 17 Cal.4th
148, 162; People v. Myers (1999) 69
Cal.App.4th 305, 309.) Appellant bears
the burden of establishing that the trial court's decision is
unreasonable. (People v. Carmony (2004)
33 Cal.4th 367, 376 [burden on appellant to establish that sentencing decision
is irrational or arbitrary]; People v.
Superior Court (Alvarez) (1997) 14
Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful
sentencing objectives]; Myers, at pp.
309-310.) We do not substitute our
decision for that of the trial court.
"It is not enough to show that reasonable people might disagree
about whether to strike one or more of [defendant's] prior convictions." (Myers,
at p. 310.)
The trial court did not abuse its
discretion. Fleming committed the
present offenses while on parole and within several months of his release from
imprisonment. As noted by the court,
Fleming also committed several misdemeanor offenses, including spousal battery
and resisting a police officer, after his release from prison. Thus, Fleming has shown a pattern of criminal
behavior. (People v. Gaston (1999) 74 Cal.App.4th 310, 320 ["unrelenting
record of recidivism" compels conclusion that defendant falls within
spirit of three strikes law].) The court
also weighed the factors in Fleming's favor--the insufficient funds checks were
not for large sums of money and he bought necessities for his family--against
Fleming criminal history. In view of the
nature of Fleming's crimes and his background, character, and prospects, he
does not fall outside the spirit of the three strikes law. (People
v. Williams, supra, 17 Cal.4th
148, 161.)
The judgment is affirmed.
NOT
TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
Barry
T. LaBarbera, Judge
Superior
Court County of San Luis Obispo
______________________________
Richard Lennon, 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, Rene Judkiewicz, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code.
