P. v. Gadley
Filed 7/2/13 P.
v. Gadley CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DAVID FITZGERALD GADLEY,
Defendant and
Appellant.
F065232
(Super.
Ct. No. F11902940)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. W. Kent Hamlin, Judge.
Kim
Malcheski, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
Defendant
and appellant David Fitzgerald Gadley contends the trial court abused its
discretion when it struck, for purposes of sentencing, one but not both of
defendant’s prior strikes. We conclude
the court acted well within the bounds of judicial discretion; accordingly, we
affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On May 23,
2011, as 66-year-old Adan Macias walked to the bus stop late at night after
leaving work in downtown Fresno, defendant and an accomplice knocked him to the
ground. Defendant kicked Macias and the
accomplice stole money from his person.
A jury found defendant guilty of
second degree robbery in violation of Penal Code section 211. Defendant admitted two prior serious or
violent convictions under the “Three Strikes†law (see Pen. Code, § 667,
subds. (b)-(i); id., § 1170.12,
subds. (a)-(d)) and admitted other enhancement allegations. After considering defendant’s invitation to
strike the two prior strike convictions, the court exercised its discretion to
strike one of the prior strikes for purposes of sentencing in the present
case. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497,
529-530.) The court sentenced defendant
to the upper term of five years for the robbery, doubled, because of the
remaining strike. (See Pen. Code,
§ 667, subd. (e)(1).) The court
also struck one prior prison term enhancement and imposed sentence on other
prior conviction and prior prison term enhancements (see Pen. Code,
§§ 667, subd. (a)(1), 667.5, subd. (b)), for a total operative
sentence of 23 years.
DISCUSSION
A
sentencing court has discretion to strike for purposes of sentencing under the
Three Strikes law one or more strikes incurred by a defendant. In exercising this power, 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 … spirit [of the Three Strikes law], 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.†(
148, 161.) We review the trial court’s
determination for abuse of discretion. (
In its
thorough examination of defendant’s “background, character, and prospects,†the
trial court noted that defendant had not been out of custody for more than a
few months at a time since his first felony conviction in 1989, that defendant
had been released on parole more than a dozen times and had failed to reform,
and that defendant’s pattern of violently victimizing weak and vulnerable persons
showed no signs of abating. The court
described defendant as a “dangerous predator.â€
In response to defendant’s suggestion that his crimes were all related
to his drug addiction, the court noted that defendant had many opportunities to
confront that addiction, but only chose to recognize it as a problem on those
occasions when he faced the possibility of long prison sentences. Because defendant is a “very dangerous career
criminal,†a sentence under the Three Strikes law was appropriate, the court concluded.
Defendant
contends the trial court gave insufficient weight to the facts that defendant
was an abused child and that he has been a drug abuser since he was a
teenager. The court viewed the matter
somewhat differently: it determined that
defendant had repeatedly failed to make any effort to overcome these problems,
and that defendant only acknowledged his drug problem when it was convenient to
do so, namely, when defendant otherwise faced the potential of long prison
sentences. We agree with the trial
court. A life of crime cannot be
justified or excused by drug use; the failure to “follow through in efforts to
bring his substance abuse problem under control†is not a mitigating
circumstance justifying a decision to strike a strike. (People
v. Williams, supra, 17 Cal.4th at p. 163.)
Defendant also contends the trial court abused its discretion by failing
to find defendant’s second strike, a crime committed in 2004, remote. This argument “is without merit where, as
here, the defendant has led a continuous life of crime.†(People
v. Pearson (2008) 165 Cal.App.4th 740, 749.) Although defendant was not convicted of a
crime between his parole from that strike offense in 2007 and the present
offense in May 2011, four years is not a significant time to demonstrate
rehabilitation, especially when defendant had five parole violations during
that time.
In this
case, the trial court carefully considered defendant’s arguments in favor of
striking his strikes, and was partially persuaded. However, the court’s carefully articulated
reasons for not striking the second strike show that a two-strike sentence in
this case was fully within the spirit and purposes of the Three Strikes
law. The court did not abuse its discretion.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Gomes, Acting P.J., Poochigian, J. and Franson, J.
