P. v. Shoulders

 

 

 

 

 

 

 

 

 

 

Filed 12/9/13  P. v. Shoulders CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Shasta)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   GREGORY DWONE SHOULDERS,                           Defendant and Appellant.

C072550   (Super. Ct. Nos. 11F3193, 12F1346, 12F3699)

 

 

 

            Defendant
Gregory Dwone Shoulders was convicted, in three separate cases, of href="http://www.fearnotlaw.com/">transportation of a controlled substance, possession
of a controlled substance, possession of drug without a prescription, and
inflicting corporal injury on a cohabitant after a previous conviction in
violation of Penal Code section 273.5, subdivision (e).  Defendant admitted a great bodily injury
enhancement, admitted he has served two prior prison terms, and was found to
have a prior strike conviction.  The
trial court denied defendant’s motion to dismiss his prior strike and sentenced
him to an aggregate term of 14 years four months in state prison.

            On appeal defendant
contends, and the People concede, that his sentence must be modified to reduce
the consecutive four-year great bodily injury enhancement to one year four
months (one-third of the four-year sentence). 
He also contends the trial court abused its discretion in denying his
motion to dismiss the prior strike.  We
shall modify defendant’s sentence to reflect the one-third term for the great
bodily injury enhancement and affirm as modified.

>BACKGROUND

            On June 8, 2011, defendant was stopped
because he had no license plates or registration tags on his car.  Defendant informed the officer that he was on
active parole and consented to a search of his car.  The search resulted in the discovery of methamphetamine
in the vehicle’s center console. 
Defendant pleaded guilty in Shasta
County case No. 11F3193 to
transporting a controlled substance (Health & Saf. Code, § 11379,
subd. (a)) and admitted he had two prior prison terms within the meaning
of Penal Code section 667.5.href="#_ftn1"
name="_ftnref1" title="">[1]  Defendant was placed on three years’ formal
probation.

            On February 29, 2012, defendant beat his
girlfriend with a barstool.  She escaped
the assault by climbing out a bedroom window. 
Her arm was broken in the assault. 
Defendant pleaded guilty in Shasta
County case No. 12F1346 to
inflicting corporal injury on a cohabitant following a prior conviction (§ 273.5,
subds. (a), (e)), admitted he inflicted great bodily injury (§ 12022.7,
subd. (e)), and admitted he violated his probation in two cases.  In exchange for his plea, he was to receive
formal probation.  Defendant was reinstated
on probation in the previous cases and referred to probation for preparation of
a probation report.

            Less than a
week later, on March 19, 2012,
police responded to a disturbance report and contacted defendant at his
house.  Defendant and another man were
having a dispute because defendant wanted to purchase Viagra without a
prescription and the man brought Adderall instead.  Defendant had 21 generic Adderall pills
in his pocket.  A jury found defendant
guilty in Shasta County
case No. 12F3699 of possession of a controlled substance (Health & Saf.
Code, § 11377, subd. (a)) and misdemeanor drug possession without a
prescription (Bus. & Prof. Code, § 4060).  The trial court found defendant had a prior
strike conviction (the infliction of corporal injury on a cohabitant in Shasta
County case No. 12F1346).

            On October 29, 2012, the trial court
denied defendant’s motion to dismiss his prior strike conviction and sentenced
him to an aggregate term of 14 years four months in state prison.

>DISCUSSION

>I

            The trial
court imposed a 14-year-four-month sentence as follows:  the upper term of three years, doubled to six
years, for possession of a controlled substance; a consecutive one-third the
midterm, or one year four months, for inflicting corporal injury on a
cohabitant, with a four-year consecutive term for the great bodily injury
enhancement; a consecutive one-third the midterm, or one year, for transportation
of a controlled substance; and two one-year consecutive terms for the two prior
prison terms.

            Defendant
contends, and the People concede, that his sentence must be modified to reduce
the consecutive four-year great bodily injury enhancement to one year four
months (one-third of the four-year sentence).

            Section
1170.1, subdivision (a) provides that subordinate terms “shall include
one-third of the term imposed for any specific enhancements applicable” to a
subordinate offense, and the great bodily injury enhancement (§ 12022.7,
subd. (e)) is specified as such an enhancement. 
(§ 1170.11; see People v. Moody (2002) 96 Cal.App.4th
987, 990-993.)  Thus, the sentence for
the corporal injury great bodily injury enhancement must be reduced to
one-third the full term, i.e., one year four months.  We shall modify the judgment accordingly.

>II

            Defendant
contends it was an abuse of discretion for the trial court to deny his motion
to dismiss his prior strike conviction pursuant to section 1385 and >Romero.href="#_ftn2" name="_ftnref2" title="">[2]  We disagree.

            A trial
court has the discretion to strike a prior serious felony conviction for
purposes of sentencing only if the defendant falls outside the spirit of the
three strikes law.  ( ADDIN BA xc <@$osdv> xl 6 s
YLPSVV000017 xpl 1 § 1385;  ADDIN BA xc <@cs> xl 45 s
YLPSVV000003 xhfl Rep xpl 1 l "People v. Williams(1998)
17 Cal.4th 148" People v. Williams (1998) 17 Cal.4th
148, 161 (Williams).)  In deciding whether to do so, the court “must
consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious
and/or violent felonies.”  (>
ADDIN BA xc <@$cs> xl 47 s YLPSVV000003 xhfl Rep xpl 1 >>Williams,
at p. 161.)

            Dismissal
of a strike is a departure from the sentencing norm, and as such, we will not
reverse the ruling on a  ADDIN BA xc <@$cs> xl 6 s
YLPSVV000002 Romero
motion for an abuse of discretion unless the defendant shows the decision
was “so irrational or arbitrary that no reasonable person could agree with
it.”  ( ADDIN BA xc <@cs> xl 44 s
YLPSVV000004 xhfl Rep xpl 1 l "People v. Carmony(2004)
33 Cal.4th 367" People v. Carmony (2004) 33 Cal.4th
367, 377.)  Reversal is justified where
the trial court was unaware of its discretion to strike a prior strike or refused
to do so, at least in part, for impermissible reasons.  ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at p. 378.)  But where the trial court was aware of its
discretion, “ ‘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
. . . ’ [citation].”  ( ADDIN BA xc <@$id> xl 5 s ID
xpl 1 Ibid.)

            Here, defendant
has an exceedingly extensive adult criminal record with 10 felony convictions,
13 misdemeanor convictions, 12 returns on parole violations, and five
violations of formal probation.  Since
1987 he has been unable to remain free from custody for more than two years
without sustaining a new conviction, or a parole or probation violation.  In fact, he was on active parole when he
committed the current transportation of a controlled substance offense, on two
separate grants of probation when he committed the infliction of corporal
injury strike offense, and was awaiting sentencing for the strike offense when
he committed the possession of a controlled substance offense.  These past and current convictions demonstrate
the ongoing nature of defendant’s nearly continuous href="http://www.mcmillanlaw.com/">criminal behavior.

            Defendant
argues that his current and past offenses stem from his drug problem -- a fact
he argues is mitigating and favors striking his prior conviction.  But although the trial court could have
considered defendant’s drug problem in mitigation, a court may also consider a
drug-addicted defendant’s failure to address his addiction as a factor showing
the defendant’s propensity for reoffending. 
(Williams, >supra, 17 Cal.4th at pp. 161,
163.)

            Defendant
also argues that his current offense could have been charged as a misdemeanor
and was a nonviolent drug offense -- facts he also argues are mitigating and
favor striking his prior conviction.  He
claims that “[w]hat is missing from [his] record is violence.”  While the current offense to which the three
strikes enhancement was applied (possession of a controlled substance) is not a
violent offense, defendant’s continuing criminal behavior, which includes the current
strike conviction of infliction of corporal injury on a cohabitant with great
bodily injury for beating his girlfriend with a barstool and breaking her arm,
most certainly is violent.  This violent offense was committed only a
month before the enhanced offense.  Additionally,
as the trial court noted, defendant had a previous felony and several
misdemeanor convictions for domestic violence, as well as brandishing and
disturbing the peace offenses.  Thus, his
criminal record by no means lacks violence.

            The purpose
of the three strikes law is to provide increased punishment for recidivist
offenders who have demonstrated that they are not rehabilitated or deterred
from further criminal activity as a result of their prior imprisonment.  ( ADDIN BA xc <@cs> xl 44 s
YLPSVV000007 xhfl Rep xpl 1 l "People v. Davis(1997)
15 Cal.4th 1096" People v. Davis (1997)
15 Cal.4th 1096, 1099;  ADDIN BA xc
<@cs> xl 42 s YLPSVV000008 xhfl Rep xpl 1 l "People v.
Leng(1999) 71 Cal.App.4th 1" People v. Leng (1999)
71 Cal.App.4th 1, 14.)  Defendant
has demonstrated he is unable to remain crime free for any appreciable amount
of time, even under supervision, and is well within the spirit of the three
strikes law.  The trial court did not
abuse its discretion in denying his  ADDIN BA xc <@$cs> xl 6 s
YLPSVV000002 section
1385 motion.

>DISPOSITION

            The consecutive
term for the great bodily injury enhancement in case No. 12F1346 is
reduced from four years to one year four months.  As modified, the judgment is affirmed.  The trial court is directed to prepare an
amended abstract of judgment reflecting the modification and to forward a
certified copy thereof to the Department
of Corrections and Rehabilitation.

 

 

 

                                                                                                    RAYE                     , P. J.

 

 

 

We concur:

 

 

 

              MAURO                   , J.

 

 

 

              DUARTE                  , J.