P. v. Hodge

Filed 7/14/10 P. v. Hodge CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Daniel J. Danielsen, Judge. Affirmed.

On May 28, 2009, Robert Hodge entered a negotiated guilty plea to transporting cocaine base, a controlled substance. Hodge admitted he had a prior strike conviction and had served two prior prison terms. On June 25, 2009, the court denied Hodge's motion to dismiss the prior strike conviction and struck one prison prior allegation. The court sentenced Hodge to nine years in prison. Hodge appeals, contending the court abused its discretion by denying the motion to dismiss his prior strike conviction. He claims the nine-year sentence is excessive and the court did not properly weigh the factors in mitigation and aggravation. We affirm the judgment.

FACTS[1]

On February 23, 2009, San Diego police officers stopped a car driven by Hodge in downtown San Diego. Hodge acknowledged he was on parole with a Fourth Amendment waiver. The officers searched Hodge and found a plastic baggie containing 19 pieces of cocaine base weighing 4.52 grams hidden in his buttocks.

DISCUSSION

I. Three Strikes Law

The purpose of the "Three Strikes" law is to "ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (Pen. Code,[2]  667, subd. (b).) If a defendant is convicted of a felony and has had one, two or more prior convictions that qualify as "strikes," the defendant will be sentenced for the current offense under the Three Strikes law. Although prior strikes most commonly are serious ( 1192.7, subd. (c)) or violent felonies ( 667.5, subd. (c)), the current conviction can be based on the commission of any felony. (People v. Terry (1996) 47 Cal.App.4th 329, 331-332.) If the defendant has one prior strike, the defendant is to receive a mandatory state prison sentence of twice the term otherwise provided. ( 667, subd. (e)(1).) If the defendant has two prior strikes, the defendant is to receive a mandatory indeterminate life sentence to state prison with the minimum term of 25 years. ( 667, subd. (2)(A)(ii).)

II. Section 1385, Subdivision (a)

Section 1385, subdivision (a) allows a trial court to exercise its discretion to dismiss a strike in furtherance of justice. A defendant convicted of the requisite triggering second or third conviction is presumed to fall within the provisions of the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508.) The Three Strikes initiative was intended to restrict a trial court's discretion in sentencing repeat offenders, and thus not only establishes a sentencing norm, but carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. (Id. at p. 528.) The law creates a strong presumption that any sentence conforming to these sentencing norms is both rational and proper. (People v. Carmony (2004) 33 Cal.4th 367, 376.) It is presumed that the defendant is within the spirit of the law under the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.)

In order to dismiss a prior strike, the court must analyze "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." (People v. Williams, supra, 17 Cal.4th at p. 161.) Striking a prior serious felony conviction is an extraordinary exercise of discretion and is therefore reserved only for extraordinary circumstances. (People v. Philpot (2004) 122 Cal.App.4th 893, 905.) Only by extraordinary circumstances may a career criminal be deemed to fall outside the spirit of the Three Strikes sentencing scheme. (People v. Carmony, supra, 33 Cal.4th at p. 378.)

A trial court's decision to deny a Romero motion is reviewed for abuse of discretion. A trial court does not abuse its discretion unless the decision to deny is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.) A trial court will abuse its discretion in failing to strike a prior felony conviction allegation only in very limited circumstances. (Ibid.) Where the trial court demonstrates a balancing of relevant facts and circumstances and has reached an impartial decision within the spirit of the Three Strikes law, the reviewing court shall affirm the trial court's ruling, even if the appellate court might have ruled differently in the first instance. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) The trial court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary. (Id. at p. 310.)

III. Analysis

Hodge moved to strike the felony conviction on the ground it was remote in time (1994), the current offense was "relatively minor" and no one was injured and the punishment would be disproportionate. The court reviewed Hodge's personal and criminal history under the Romero/Williams criteria and found nothing extraordinary to justify exempting Hodge from the sentencing scheme. The court noted the current offense involved a substantial amount of cocaine base, and Hodge had prior serious/violent convictions in 1978, 1982 and 1994. The court noted Hodge's 1994 strike conviction was a violent crime during a purse snatching, which resulted in significant injury. Given Hodge's 30-year criminal history and his failures on probation and parole, Hodge fell well within the spirit of the Three Strikes law. Hodge has not shown that the trial court's denial of his motion to strike the prior conviction was arbitrary or irrational. The court did not abuse its discretion in denying Hodge's motion.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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[1] Because Hodge pleaded guilty, the facts are taken from the probation report.

[2] Statutory references are to the Penal Code unless otherwise specified.