P. v. Tamplin

Filed 12/5/08 P. v. Tamplin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. David A. Gottlieb, Judge.

Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Dwight Tamplin, Jr., was convicted after jury trial of being a felon in possession of a handgun and a street gang enhancement was found true. (Pen. Code,  12021, subd. (a)(1) & 186.22, subd. (b)(1).)^[1] In a subsequent bifurcated proceeding, four prior strikes were found true. ( 667, subds. (b)-(i), 1170.12 & subds. (a)-(d).) Appellant was sentenced to an aggregate term of 45 years to life imprisonment. On May 10, 2007, we issued an opinion in appellants first appeal, case No. F050103, affirming the judgment of conviction but vacating the sentence and remanding the matter for resentencing.

On August 28, 2007, the trial court denied appellants request to dismiss one or more of his prior serious felony convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court sentenced appellant to prison for a term of 25 years to life plus an additional three years for the gang enhancement. Appellant contends the trial court abused its discretion in denying his request pursuant to Romero. We disagree and will affirm.

APPELLANTS RESENTENCING HEARING

Prior to the resentencing hearing, appellants trial counsel filed a motion for the trial court to strike appellants prior serious felony convictions under section 1385 and Romero. Appellant noted his prior serious felony convictions included a robbery with personal use of a firearm, attempted robbery with personal use of a firearm, and two attempted murders with use of a firearm during a crime spree. Appellant was 16 years old when these offenses occurred over two days.

Appellant described his earlier juvenile record as minimal, consisting of possession of a knife at school, vehicle theft, and two petty thefts. Appellant characterized his current conviction as nonviolent. Appellant described his prospects upon release from custody as good because he was a loving father to his five children and his wife suffered an aneurysm after his current arrest.

The prosecutor filed a response noting that appellants first conviction in 1990 for robbery occurred after he took the victims purse at gun point, ordered her to strip or he would kill her, and fired a shotgun at a passerby attempting to intervene. The same day, appellant attempted to rob two more victims. One of the victims heard a comment about wasting them. Several shots were fired and both victims were struck leading to the attempted murder conviction. The next day appellant participated in the robbery of a donut shop where the victim was shot causing serious injury. That same day, another victim was walking down the street when appellant began shooting at him. The third or fourth shot hit the victim leading to appellants second conviction for attempted murder. The crimes were committed for the benefit of a street gang.

At the sentencing hearing, appellants counsel argued that his prior convictions were sustained when he was 16 years old during a single two-day period of violence. Counsel described appellants prior conduct as aberrant. Defense counsel requested the court to strike two of appellants strikes. Defense counsel further argued that a codefendant was also convicted of possession of a firearm and it was possible that appellant merely had constructive possession of the gun, taking his offense outside the intent of the three strikes law.

The prosecutor noted that all of appellants prior convictions involved the use of a gun. The prosecutor further argued that appellant was driving around in a car with fellow members of a criminal street gang. The prosecutor argued that 25 years to life was the only appropriate sentence.

The court found appellants case did not fall outside the three strikes law or outside the parameters of Romero. The court noted that before appellant committed his felony crime spree, he had been committed to the youth authority. The court noted that appellants current offenses were not mere possessory offenses, but extremely serious. The court further noted that appellants prior criminal history was violent and denied the Romero request.

ROMERO DISCRETION

Appellant contends the trial court abused its discretion by failing to consider whether granting a request pursuant to Romero was in the interests of justice. Appellant argues the sentencing court should have reconsidered the Romero request. We disagree.

In People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony), the California Supreme Court noted that section 1385 does not require a court to explain its decision not to exercise its power to dismiss a strike. The absence of such a requirement reflects a legislative presumption that a court acts properly in sentencing a defendant in accordance with the three strikes law. Review of a trial courts failure to dismiss or strike a prior serious felony conviction, therefore, is subject to review for abuse of discretion. (Ibid.) Carmony further held that the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from that norm and requires the court to explicitly justify its decision to do so. (Id. at p. 378.) In light of the presumption that any sentence that conforms to these norms is both rational and proper, a trial court only abuses its discretion in failing to strike a prior felony conviction allegation in limited circumstances such as unawareness that it has discretion to dismiss. (Ibid.; see also In re Large (2007) 41 Cal.4th 538, 550-551.)

The trial court here was clearly aware that it could strike one or more of appellants prior felony convictions, but should do so only under unusual circumstances. The court was aware of, and understood, its sentencing discretion under section 1385.

Appellant argues that he was only 16 years old when he committed his prior serious felony offense. Ultimately, however, the court found that appellants case was not a strong case for dismissing any prior felony allegation. Appellants current criminal conduct had the potential for violence that was all too similar to his prior felony conduct. Previous incarcerations failed to reform appellant. The trial court did not abuse its discretion in denying appellants request to dismiss two prior felony convictions. The trial court did not abuse its broad sentencing discretion in denying appellants Romero request.

DISPOSITION

The judgment is affirmed.

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^*Before Levy, Acting P.J., Cornell, J., and Gomes, J.

^[1] Unless otherwise specified, all statutory references are to the Penal Code.