P. v. McDonald
Filed 7/29/13 P. v. McDonald 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opinion has not been certified for publication or ordered published for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.
IANN LEWIS
McDONALD,
Defendant and Appellant.
A136827
(Sonoma
County
Super. Ct.
No. SCR617900)
Less than 48 hours
after being released from state prison,
defendant Iann Lewis McDonald was the subject of a parolee search that found
him in constructive possession of a firearm and ammunition forbidden to
him. He entered pleas of no contest to
felony charges of being a past-convicted felon in
30305, subd. (a)(1).) He also admitted
the truth of enhancement allegations that he had a prior serious or violent
conviction that qualified under the Three Strikes law (Pen. Code,
§ 1170.12), and that he had served a term in state prison. (Pen. Code, § 667.5.)
At sentencing, the trial court
denied defendant’s motion to dismiss the strike enhancement in accordance with
years and eight months. The term was
computed as the low term of 16 months on the firearm charge, and then doubled
pursuant to the Three Strikes law. An
identical term for the ammunition charge was imposed, but ordered to run
concurrently. The one-year term for the
prior prison term was stayed.
On this timely appeal, defendant
presents two claims of error respecting only the sentencing. The first is that he is entitled to six
additional days of custody credit, for a total of 135 days, pursuant to Penal
Code section 4019. This the Attorney
General concedes is correct.
Although defendant initially asked for six additional days of
presentence custody credits, he accedes to the Attorney General’s argument that
these credits are not owed. We will
order preparation of a new abstract of judgment to reflect this modification.
Another modification is necessary
solely because of the Attorney General, who notes that “although appellant has
not raised the issue, it appears the trial court improperly stayed, rather than
struck, the prior prison term enhancement.
(Pen. Code, § 667.5, subd. (b).)
The trial court has no authority to stay a Penal Code section 667.5,
subdivision (b) enhancement. The prior
prison term enhancement is ‘mandatory unless stricken.’ (People
v. Langston (2004) 33 Cal.4th 1237, 1241.)
Because the record seems to indicate the trial court intended to give
appellant a lenient sentence and did not wish to add an additional year to
appellant’s sentence, this Court may choose to order that the abstract be
amended to strike imposition of the one-year section 667.5, subdivision (b)
enhancement.†We shall do so.
Defendant’s primary contention is
that the trial court abused its discretion when it denied his
to persuade us, we must reject his contention.
Although we are not unsympathetic to defendant’s arguments, the hurdles
he must surmount are daunting.
Our Supreme Court has held that “a court’s failure to
dismiss or strike a prior conviction allegation is subject to review under the
deferential abuse of discretion standard.â€
(People v. Carmony (2004) 33
Cal.4th 367, 374 (Carmony).) The court went on to explain just what this
means in application:
“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 the legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.†’
[Citation.] Second, a
‘ “decision will not be reversed on appeal 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.’ †’ [Citation.]
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.]
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, . . . 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 minds
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 . . . manifestly support the striking
of a prior conviction and no reasonable minds could differ—the failure to
strike would constitute an abuse of discretion.†(Carmony,
supra, 33 Cal.4th 367, 376-378.)
Defendant’s criminal history is not
extensive but neither is it trivial. In
January of 2010, two weeks before his 20th birthday, defendant was convicted of
felony vandalism (Pen. Code, § 594) and active participation in a criminal
street gang (Pen. Code, § 186.22, subd. (a).) He was admitted to three years
probation. He violated the terms of his
probation twice. The first time, less
than two months later, was for
possession of gang paraphernalia. He
managed to go the next 16 months without incident until he was arrested for
another criminal offense, at which point probation was terminated. That offense led to defendant’s conviction in
August 2011 for what appears to be attempting to flee from a pursuing peace
officer while driving in a wanton disregard of persons and property (Pen. Code,
§ 664; Veh. Code, § 2800.2, subd. (a)). This conviction resulted in a
16-month state prison sentence. It was
just after being paroled from that sentence that defendant was arrested for the
current offenses.
The record is clear that the court
was receptive to defendant’s argument that the manifestation of overt criminal
culpability on his part was not overwhelming.
It is hardly a surprise that defendant reiterates his heaviest emphasis
on this point. As he presents it, and
this is not factually disputed, he had just been released from prison, he not
unnaturally went to the home of a relative, in this case his brother. It was his bad luck that when the parolee
search was conducted, the officers discovered that “in his brother’s bedroom
was a legally owned and registered rifle [actually, it was a shotgun]—locked in
a wood and glass cabinet—along with ammunition.†In anticipation of his release, “his family
had scoured his room, removing any
scintilla of ‘red’ [reflecting gang affiliation] from his bedroom, from clothing to pictures to cigarette lighters. How they casually dismissed the presence of a
rifle in his brother’s bedroom,†defendant submitted to the trial court,
indicated “more a lack of common sense†from “a family that lacks any real
sophistication†rather than “an affront or defiance of the terms of probation
by Mr. McDonald.†(Italics
added.) And defendant never even went
into his brother’s bedroom.
Reference has already been made to
the Attorney General’s characterization of the trial court’s intent to impose
“a lenient sentence,†short of granting defendant’s motion. This appears to be a correct estimation. At the time he changed his pleas, defendant
was advised that the “potential exposure is eight years and four months in the
state prison.†At sentencing, the court
rejected the probation officer’s for a five-year sentence. The court selected the lowest term for the
firearm charge, knowing that it would be doubled. It ran the sentence on the ammunition charge
concurrent to the term on the firearm charge.
And, thanks to the Attorney General, sentence on the prior prison term
enhancement, even though stayed, will be stricken in the trial court’s name. But this leniency now works against defendant
because the sentence actually imposed “is also a relevant consideration when
deciding whether to strike a prior conviction; in fact, it is the overarching
consideration because the underlying purpose of striking prior conviction
allegations is the avoidance of unjust sentences.†(People
v. Garcia (1999) 20 Cal.4th 490, 500.)
Having already made substantial reductions in defendant’s potential
aggregate term, the trial court could conclude that reducing that term to only
16 months was simply too much leniency.
Calling it “almost heartbreaking,â€
the trial court nevertheless found itself unable to “make a determination that
Mr. McDonald falls outside the scheme of three strikes.†That decision has a strong presumption
supporting its correctness. (
The trial court was clearly advised of defendant’s “background,
character, and prospects.†(
court was unaware of its discretion or “considered impermissible factors†(
attached “unreasonable significance†to the short period of time between his
release and his reoffending. Yet it
cannot be denied that defendant’s performance on probation for his first offenses
was poor. Moreover, regardless of the
circumstances, and making all allowance for his family’s best intention,
defendant no sooner gets out of prison than he breaks one of the iron laws
governing parolees—stay away from guns.
Can the sentence of 32 months
qualify as an abuse of discretion so “ ‘arbitrary, capricious or patently
absurd’ †that no reasonable person could agree with it? (Carmony,
supra, 33 Cal.4th 367, 377,
378.) Not in our view.
The judgment of conviction is
affirmed. The clerk of the superior court is directed to prepare a new abstract
reflecting that defendant is awarded 135 days of actual custody credits
pursuant to Penal Code section 4019, and that the one-year enhancement pursuant
to Penal Code section 667.5 is stricken.
The clerk is further directed to forward a certified copy of the new
abstract to the Department of Corrections
and Rehabilitation.
_________________________
Richman,
J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Lambden, J.
