P. v. Loftin

Filed 10/10/07 P. v. Loftin CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Los Angeles County Superior Court,

Anita H. Dymant, Judge. Affirmed.

Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Julius Loftin was convicted by a jury on one count of assault with a deadly weapon, by force likely to produce great bodily injury, with special findings by the court in bifurcated proceedings that he had suffered one prior serious felony conviction within the meaning of the Three Strikes law and Penal Code section 667, subdivision (a)(1).^[1]On appeal, Loftin contends the trial court abused its discretion in denying his request to dismiss his prior qualifying strike conviction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Loftin attacked and stabbed Pedro Martinez in the stomach with a knife.

An information charged Loftin with one count of assault with a deadly weapon, by force likely to produce great bodily injury ( 245, subd. (a)(1)). It was also alleged Loftin personally inflicted great bodily injury in committing the offense, and had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and the Three Strikes law. ( 12022.7, subd. (a), 667, subd. (a)(1), 667, subds. (b)-(i); 1170.12, subds. (a)-(d)).

The jury convicted Loftin of aggravated assault but found not true the great bodily injury enhancement. In a bifurcated proceeding, the trial court found true the additional sentencing enhancements. The court also denied Loftins motion to dismiss his prior strike conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530) and sentenced Loftin to an aggregate state prison term of 11 years, consisting of the middle term of three years for aggravated assault doubled pursuant to the Three Strikes law, plus five years for the prior serious felony enhancement.

DISCUSSION

The Trial Court Did Not Abuse Its Discretion in Denying Loftins Motion to Dismiss His Prior Qualifying Strike Conviction

Loftin contends the trial court abused its discretion in refusing his request to dismiss his prior serious felony conviction, which qualifies as a strike under the Three Strikes law. Section 1385, subdivision (a), vests the court with discretion to dismiss a prior conviction, including a qualifying strike conviction, in furtherance of justice. (People v. SuperiorCourt (Romero), supra, 13 Cal.4th at pp. 529-530; People v. Williams (1998) 17 Cal.4th 148, 158.) [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . or in reviewing such a ruling, 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 [Three Strikes] 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. (Williams, at p. 161.)

We review the trial courts refusal or failure to dismiss a prior strike allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376; see Romero, supra, 13 Cal.4th at p. 530.) [T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts 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. [] . . . [I]t is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. [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. (Carmony, at p. 378.)

Loftin was born on February 23, 1954, making him 52 years old when he committed assault with a deadly weapon on August 6, 2005. According to the probation officers report, in 1985, Loftin was convicted of the same offense, a qualifying felony under the Three Strikes law. Loftins other California convictions are: misdemeanor battery and brandishing a deadly weapon in 1996, and being a felon in possession of a firearm in 1999. In 2000, Loftin was charged with aggravated assault and possession of cocaine after he lunged at someone with a knife, while trying to steal a VCR, and police found cocaine on him. However, Loftin was convicted only of cocaine possession and received formal probation. Loftin also has out-of-state convictions, all of which appear to be misdemeanors: trespass in 1977, attempted burglary in 1977, criminal mischief in 1983, and driving under the influence in 1989.

The trial court stated at the outset of the sentencing hearing that it had repeatedly read Loftins motion to dismiss his prior strike conviction, and had reviewed the superior court file as well as its own trial notes. The trial court acknowledged that although Loftins prior strike conviction was 20 years old, the 1985 conviction for assault with a deadly weapon was the same offense for which he was convicted in the instant case. The trial court also observed that in the 10 years following his release from prison on that case, Loftin had apparently led a law-abiding life. By contrast, in the last 10 years (since 1996), Loftin has had three cases involving weapons possession and violence, apart from the instant case. The court concluded that in particular the similarities between these most recent offenses and the 1985 aggravated assault conviction weighed against granting Loftins motion.

Loftins contention is patently meritless that the trial court failed to consider his background and character, and the lengthy sentence that would be imposed if the prior strike conviction were dismissed. The trial court expressly and repeatedly reviewed Loftins motion, which specifically argued that these factors (Loftins age, disability, cooperation with police when arrested, and help to police in an unrelated case, and alternative sentence of seven to nine years) supported the dismissal of the prior strike conviction.^[2]

Nor does the record support Loftins contention the trial court failed to consider his purported alcohol and/or narcotics addiction in deciding whether to grant the motion. The Probation Officers Report indicated that Loftin appears to be a transient with a significant alcohol and/or narcotic problem, but did not recommend that it be considered a mitigating factor. It is also true that Loftin was intoxicated to some extent when he committed the instant offense, and that in 2000, he was convicted of cocaine possession. However, a defendants substance abuse problems do not support the dismissal of strikes unless there is some evidence the defendant has attempted to address the problem. Drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Indeed, the Probation Officers Report indicates that Loftin was ordered to complete a residential drug and alcohol treatment program as a condition of probation resulting from his 2000 conviction. However, the probation officer could not verify that Loftin completed the court-ordered program.

The trial court considered the appropriate factors identified in People v. Williams, supra, 17 Cal.4th at page 161, and People v. Carmony, supra, 33 Cal.4th at page 378, the trial court concluded that nothing in Loftins history or background suggested the kind of extraordinary circumstances that would exempt him from the spirit and intent of the Three Strikes law. (Carmony, at p. 378.) That determination was well within the trial courts discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P. J.

ZELON, J.

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^[1] Statutory references are to the Penal Code.

^[2] Loftins assertion the trial court also neglected to consider his criminal history, the remoteness of his prior strike conviction, and the facts of the current offense are belied by the previously referred to comments by trial court at the outset of the hearing.