P. v. Urquhart

Filed 8/25/08 P. v. Urquhart 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kern County. Jerold L. Turner, Judge.

John P. Dwyer, 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, Ward A. Campbell and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Pursuant to a plea agreement, appellant Robert Earl Urquhart pled no contest to attempted rape (Pen. Code,^[1] 261, subd. (a)(2), 664),and admitted having suffered three prior strike convictions ( 667, subds. (c)-(j)). Sentenced to 25 years to life in prison, he now appeals, claiming the trial court erred by denying his request to dismiss two prior strike convictions pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero). For the reasons that follow, we will affirm.

FACTS^[2]

On the morning of February 6, 2007, appellant went to the Bakersfield home of his sister-in-law, R.W. She let him in when he asked to use the restroom. He subsequently told her there was a water leak in the bathroom. When she went to investigate, appellant pushed her onto the bed in one of the spare bedrooms. He bound her wrists with tape, waved a knife in front of her and reminded her that he had been to prison before, pulled up her shirt, and began to kiss her. Although she struggled and pleaded for him to quit, he pulled down her pajama bottoms and underwear and attempted to rape her.^[3] Afterward, he released her and left. Appellant later admitted to his wife that he had planned the assault.

DISCUSSION

The probation officers report revealed that appellant, who was born in 1955, suffered two substance abuse-related misdemeanor convictions in 1975. In January 1984, he was convicted of two counts of first degree burglary, for which he was sent to prison. He was paroled in November 1985. In July 1987, he was convicted of robbery involving the use of a knife, for which he again was sent to prison. He was paroled in June 1990. This was his last conviction until the present case.

Prior to sentencing, appellant requested that the trial court strike two of his prior felony convictions pursuant to section 1385. In his request, which he supported with letters and testimony, appellant detailed his long-standing battles with alcohol and drug addiction (including his use of marijuana and Vicodin, which had been prescribed for back pain, at the time of the current offense), his attempts to rehabilitate himself, and his productive employment history. He also pointed out that almost 20 years had passed since his last conviction. The prosecutor opposed the request, in large part based on the similarity between the present offense and appellants previous felonies.^[4]

At the conclusion of the hearing on appellants Romero request, the trial court announced that it had read all the statements and letters submitted to it, including appellants own comments, and had given a great deal of consideration to this case. Expressly recognizing appellant was someone who had made a significant contribution to the community, the court nevertheless stated:

I cannot, however, excuse the conduct or the circumstances in this particular case. [U]sually in circumstances of drug or alcohol we do have serious offenses committed. There are certain types of offenses that are understandably reoccurring things of drug and alcohol abuse, theft crimes, driving under the influence, domestic violence those kinds of things tend to be repetitive scenarios of drug and alcohol abuse and are certainly symptoms.

However, even assuming the best-case scenario, that [appellant] was suffering from some kind of addiction , it cannot excuse the egregious conduct that occurred in this particular case.

By reading everything that I have read in this particular case, this was [a] premeditated act. It was not something that simply occurred at the spur of the moment. It was not spontaneous. It was something that was planned and executed and thought about before it was ever perpetrated.

The circumstances of this particular case so closely parallel the circumstances of the 1984/85 case, the 1987 case that in this Courts opinion it would be an abusive [sic] discretion, even for the passage of time in this particular case, to strike those strikes. It is a reoccurring theme. It is a method of operation where women are literally terrorized by the use of a weapon, which is the same weapon in all cases in at least this case and the 1984 or 83 case, the motive was obviously sexual.

I think that everyone who imbibes in some sort of drugs knows that there is a certain loosening of inhibitions that go along with normal or cognizant restraint.

[Appellant], more than anyone, based upon his past history should have been more aware of this than anyone, more aware of his propensities than anyone else.

And what I cannot get over and what keeps coming back in my mind is the fact that this wasnt spontaneous. This was not a spontaneous lapse of judgment. This was planned. He took a weapon with him. He took tape with him and carried out a crime that he intended to perpetrate .

For that reason, I can find no justification in striking the strikes.

Appellant now contends the trial court failed adequately to consider the substantial, concrete steps appellant has taken to demonstrate his amenability to rehabilitation, or that a sentence based on the dismissal of two strikes would have fulfilled the purposes of the three strikes law. Appellant points to the remoteness of his prior convictions, his lengthy and substantial efforts at rehabilitation and the important contributions he has made as a productive citizen, his good work history, and the continuing support of his family and friends. Appellant says these various factors cause this case to fall outside the spirit of the three strikes law.

Trial courts have limited discretion under section 1385 to dismiss prior convictions in three strikes cases. (Romero, supra, 13 Cal.4th at p. 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 legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.] (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) When sentencing pursuant to the three strikes law, objectives include protection of public safety and punishment of recidivism. (People v. Castello (1998) 65 Cal.App.4th 1242, 1251.) 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. [Citations.] 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. (Carmony, supra, at p. 377.)

In deciding whether to dismiss or vacate a prior strike allegation or finding, 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 schemes 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 (1998) 17 Cal.4th 148, 161.) By establishing a sentencing norm, circumscribing the trial courts power to depart from that norm, and requiring the court explicitly to justify its reasons for doing so, the [three strikes] 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. (People v. Carmony, supra, 33 Cal.4th at p. 378.) These include situations in which the trial court was not aware of its discretion to dismiss, considered impermissible factors in declining to dismiss, or where the sentencing norms produce, as a matter of law, an arbitrary, capricious, or absurd result under the specific facts of a particular case. (Ibid.) They do not include situations in which reasonable people might disagree about whether to strike one or more prior conviction allegations. (Ibid.)

The factors set forth by appellant are undeniably favorable to him. Although his criminality spans most of his adult life, he is not the kind of revolving-door career criminal with an unrelenting record of recidivism (People v. Gaston (1999) 74 Cal.App.4th 310, 320) that is typically before a court in three strikes cases. The factors were all considered by the trial court, however (see People v. Philpot (2004) 122 Cal.App.4th 893, 907), and we cannot agree that the trial court somehow misweighed them vis--vis the nature of appellants past and present offenses, especially in light of the similarity and seriousness of the offenses, consistent involvement of a deadly weapon, and presence of planning and premeditation. Accordingly, appellants case does not present the type of extraordinary situation in which he must be deemed to fall at least partially outside the spirit of the three strikes law (see People v. Carmony, supra, 33 Cal.4th at p. 378); hence, the trial court did not abuse its discretion in denying his Romero request.

DISPOSITION

The judgment is affirmed.

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^* Before Ardaiz, P.J., Cornell, J. and Kane, J.

^[1]All statutory references are to the Penal Code.

^[2]In light of appellants plea, the facts are taken from the preliminary hearing transcript.

^[3]According to the investigating officer who testified at the preliminary hearing, R.W. reported that appellant had sexual intercourse with her. According to the prosecutors opposition to the Romero request, however, there was no penetration.

^[4]One of the burglary convictions resulted from an incident in which a 15-year-old girl, asleep in her bedroom, was awakened by appellant. He was standing by her bed, wearing only a T-shirt. His penis was erect and he told her not to scream. When she did, he attempted to place his hand over her mouth, but then tried to flee when she escaped. Following his capture just outside the girls residence, a butcher knife was found on the corner of her bed. With respect to the robbery conviction, the victim was driving her pickup to work when she saw appellant, her husbands coworker, jogging. When he asked her for a ride home so he could get ready for work, she agreed. Once inside the vehicle, appellant pulled what the victim believed to be a large knife, placed it to her face, and forced her to drive. When she stopped the truck and jumped out, appellant drove off in the vehicle at a high rate of speed.