P. v. Smith
Filed 6/17/10 P. v. Smith CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. HERMAN LOUIS SMITH, Defendant and Appellant. | D055054 (Super. Ct. No. SCD214567) |
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
In this case Herman Louis Smith moved to strike a prior conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Because of Smith's lengthy and continuing pattern of criminal activity, the trial court did not abuse its discretion in denying his motion. Accordingly, we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992 when Smith was 12 years old, he and a confederate robbed a convenience store at gunpoint. Smith was placed at the Youth Authority and paroled in 1994. Between 1994 and 1997 Smith violated his parole twice and was placed back in custody. Between 1994 and 1998 Smith was also the subject of domestic violence allegations and committed other minor infractions. In 1998 Smith received a 32-month state prison sentence for narcotics trafficking. In 2000 Smith was paroled; however he was placed back in custody in 2003 for a parole violation.
The instant proceedings commenced on July 24, 2008, when Smith was charged with three counts of selling cocaine base in violation of Health and Safety Code section 11352, subdivision (a). In addition, the information alleged Smith had been convicted of a serious or violent felony or "strike" within the meaning of Penal Code sections 667, subdivisions (b) through (i), and 1170.12. The information was filed after DEA agents had intercepted a number of telephone conversations which showed Smith and his parents were distributing crack cocaine from their home. Smith's parents were also charged and convicted with respect to their participation in the drug trafficking.
Smith pled guilty to one count of the information in exchange for dismissal of the remaining counts. Smith also admitted he had suffered a prior felony conviction, subject to his right to move under Romero to strike the prior. Smith waived his rights under People v. Harvey (1979) 25 Cal.3d 754 and People v. Cruz (1988) 44 Cal.3d 1247. The parties agreed that in any event Smith would not be subject to a sentence greater than eight years in prison.
Smith made a Romero motion which was heard at the time of sentencing. In denying Smith's Romero motion, the trial court recited Smith's lengthy and largely uninterrupted criminal history. Turning to the instant offense, the trial court stated: "The current offense is neither serious nor violent as defined by law. But if a crime can be characterized as nonserious and yet be utterly serious in the context of this community, this is the crime.
"The drug crack cocaine is a scourge to this community, and it disproportionately affects certain parts of this community. And we see people on a daily basis going to prison for lengthy mandatory prison terms based upon subsistence-level hand-to-hand sales involving a fraction of the drugs involved in this case.
"Any criminal judge in San Diego who sits in the court for any period of time wonders where all the drugs come from that are sold at .20 for a small amount of money, and there never seems to be any higher-ups in the drug trafficking. Well, we don't get very high up, but this is much higher up. This case is much more significant than the average drug sale case."
Having denied the motion to strike, the trial court then imposed an eight-year prison term.
DISCUSSION
On appeal Smith argues the trial court erred in denying his motion to strike the prior conviction. We find no error and affirm.
In Romero the Supreme Court held that notwithstanding the otherwise restrictive language in the three strikes law (see Pen. Code, 667, subds. (b)-(i), 1170.12), courts retain limited discretion under section 1385, subdivision (a), to strike a prior conviction. (Romero, supra, 13 Cal.4th at pp. 529-530.) "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 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." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Importantly, in reviewing an order denying a motion to strike, we are required to consider the legal context in which the ruling was made, to wit: the legal principles and policies embodied in the three strikes law. (People v. Carmony, supra, 33 Cal.4th at p. 377.) " '[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.]
"Consistent with the language of and the 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, on its own motion, "in furtherance of justice" pursuant to Penal Code section 1385(a), 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. . . . [] . . . [] 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 casewhere the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differthe failure to strike would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at pp. 377-378, italics added.)
Here, Smith's long and continuing record of offenses, beginning at the age of 12, place him squarely within the spirit of the three strikes law. The fact that the trial court carefully considered the nature of the current offense, including its serious impact on the community, was proper and indeed required by the cases which have followed
Romero. (See Carmony, supra, 33 Cal.4th at p. 377; People v. Williams (1998) 17 Cal.4th 148, 161.) Accordingly, the trial court did not abuse its discretion in denying Smith's motion.
Judgment affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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