P. v. Singleton

Filed 10/4/06 P. v. Singleton CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Turner Singleton, III of one count of unlawful possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) Defendant admitted two prior prison terms, one of which was a strike under Penal Code, sections 667, subdivisions (b)-(i) and 1170.12 (hereafter the “three strikes” law). Defendant moved to strike the strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied the motion and sentenced defendant to the midterm of two years, doubled pursuant to the strike, plus one year for the prior conviction, for a total of five years in state prison.

On appeal, defendant contends the court’s denial of his Romero motion was an abuse of discretion. We disagree, and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

While on patrol, Sacramento Police Officer Adam Feuerbach and another officer noticed the defendant loitering in a parking lot outside of a Shell gas station. Feuerbach drove through the parking lot, approached the defendant and instructed him to leave the area.

Approximately one hour later, after responding to a call elsewhere, Feuerbach returned to the parking lot to find the defendant still there. Feuerbach detained the defendant and searched him, finding a clear plastic baggie containing cocaine base in the pocket of his shorts.

Defendant was arrested and ultimately charged with one count of unlawful possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and a prior conviction for a serious and violent felony. (Pen. Code, § 667, subds. (b)-(i),

§ 1170.12.)

After trial by jury, defendant was found guilty of the charge of unlawful possession. Outside the presence of the jury, defendant admitted to two prior prison terms. Defendant later filed a Romero motion requesting that the court strike one of the prior convictions. In support of that motion, defendant argued that the current offense was minor because it was a “minimal” amount of cocaine base for personal use, that the offense was neither serious nor violent, and that the crime was “victimless.” He also argued that the prior strike was based on a plea entered prior to adoption of the three strikes law, and noted that he had recently begun treatment for a “long-standing mental health condition,” making it more likely he would discontinue the use of illegal drugs.

The trial court denied defendant’s motion “based on [his] prior criminal history and considering all the circumstances of [the] case.”

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant contends the trial court erred by failing to exercise its discretion to strike the prior conviction.

He reiterates the arguments he made to the trial court that

the crime involved only one baggie of cocaine base, did not involve violence and was the result of his addiction to drugs. He further argues that the “minimal” nature of the crime, in conjunction with the fact that he cooperated with police during the investigation and did not resist arrest or attempt to escape, places him “outside the scheme of the Three Strikes Law.”

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. (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Romero, supra, 13 Cal.4th at pp. 529-530.)

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.” (People v. Williams, supra, 17 Cal.4th at p. 161.)

The trial court’s “failure to . . . strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) 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.”’ [Citations.] Second, a ‘“decision will not be reversed 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.” (Id. at pp. 376-377.)

Thus, only in “an extraordinary case -- where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ” would the failure to strike be an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)

The People argue, albeit rather summarily, that there is nothing extraordinary about defendant’s case that would justify deviating from the sentencing norm established by the three strikes law. We agree. The court relied primarily on the

defendant’s prior criminal history as a basis for its decision. That history spans 17 years and includes convictions for assault with intent to commit rape, possession of controlled substances, transportation and sale of narcotics, second degree robbery (where defendant struck the victim in the face with his fist), assault with a deadly weapon (where defendant punched the victim in the face and broke her nose), petty theft, spousal abuse, driving under the influence, attempted robbery and possession of drug paraphernalia. Violence played a role in a substantial number of those convictions, nearly all of which were serious by any standard. That those offenses span a good portion of defendant’s adult life demonstrates his reluctance to deviate from a lifestyle of crime.

The trial court was not persuaded, nor are we, that defendant’s ongoing substance abuse problem is so extraordinary as to overshadow his ongoing criminal behavior. The fact that his most recent offense involved a “minimal” amount of drugs and did not involve violence is merely fortuitous and does not, in our minds, justify placing him outside the bounds of the three strikes law.

We do not find the trial court’s ruling denying the Romero motion to be irrational or arbitrary, and we therefore find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P.J.

We concur:

SIMS , J.

BUTZ , J.

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