P. v. Hale
Filed 6/25/12 P. v. Hale CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JEREMY JASEN HALE,
Defendant and
Appellant.
2d Crim. No.
B236042
(Super. Ct. No.
2010045750)
(Ventura
County)
Jeremy Jasen Hale
appeals a judgment following his guilty plea to four felony counts of making
and his admission that he had a prior serious felony conviction in 2002
(§§ 667, subd. (a)(1), (c)(1), (e)(1), 1170.12, subd. (a)(1)).
purview of the three strikes law and sentenced him to an aggregate nine-year
prison term. We conclude Hale has not
shown that the court erred by imposing a nine-year term or by not striking his
prior 2002 felony conviction. We affirm.
FACTS
On December 25, 2010, Hale was a passenger in a car
driven by his father. Hale's mother was
in the front passenger seat. Hale's
sister Jessica, her 14-year-old daughter, and Hale were in the rear seat. Jessica's nine-year-old son was in the front
seat.
Hale got into an
argument with Jessica and he began hitting her.
She sustained injuries
to her left eye, the right side of her face and the back of her head. Jessica's 14-year-old daughter tried to stop
the fight. Hale punched her in the face
with his fist. Jessica's nine-year-old
son turned around to try to stop the fight.
Hale punched him in the face.
Hale's father stopped
the car, got out and told Hale to stop hitting Jessica. Hale began hitting his father. The two of them "started fighting on the
side of the road."
After that fight, Hale
threatened to kill Jessica. He
"looked at everybody in the vehicle and said he was going to kill them
all." Jessica was "shaking and
crying." She was "very frightened"
because she knew Hale was "violent" and that he frequently carried
weapons.
The district attorney
filed a complaint against Hale for felony criminal threats (§ 422),
misdemeanor battery (§ 242), and
cruelty to children by inflicting injuries (§ 273a, subd. (b)).
Hale entered into a
written plea agreement to plead
guilty to four felony counts of making criminal threats. He admitted that he had a prior strike for a
2002 serious felony conviction for threatening a victim/witness. (§ 136.1, subd. (c)(1).) He checked the box on the plea agreement that
contained information about the consequences of his guilty plea. It provided, "I could be sentenced to
the state prison for a maximum possible term of 15 year(s)."
During his
"I am asking for the court to sentence him to seven years in
prison." The court sentenced him to
an aggregate term of nine years. It did
not strike the 2002 prior conviction.
DISCUSSION
Hale contends the trial
court erred by not striking his prior serious felony conviction. He claims the court did not consider
mitigating factors that showed that he fell outside the spirit of the three
strikes law. We disagree.
"[I]n ruling
whether to strike or vacate a prior serious and/or violent felony
conviction," the court considers "the nature and circumstances of
[the defendant's] present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and
prospects." (People v. Williams (1998) 17 Cal.4th 148, 161.) The court may strike a prior conviction where
these factors show that the defendant falls outside the "spirit" of
the three strikes law. (
We review claims of
error for not striking a prior strike conviction "under the deferential
abuse of discretion standard." (
374.) Appellant has the burden
"'"to clearly show that the sentencing decision was irrational or
arbitrary."'" (
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."'" (Id.
at pp. 376-377.) A sentencing decision
"'"will not be reversed merely because reasonable people might
disagree."'" (
tribunal is neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.'"'"
(Ibid.)
Hale claims the trial
court did not consider mitigating factors such as: 1) he was diagnosed with depression following
a 2008 traffic accident; and 2) "other than the [prior] 2002 offense, the
present case was the first time in many years that [he] committed a felony
offense."
The trial court "is
presumed to have considered all of the relevant factors in the absence of an
affirmative record to the contrary."
(People v. Myers (1999) 69
Cal.App.4th 305, 310.) Here the
information about Hale's depression and his medical condition was included in
the defense sentencing memorandum. The
record reflects that the court considered that information. It said it had reviewed that memorandum. The information regarding the 2008 accident
and his depression was also contained in the probation report which the trial
judge signed. The prior strike
conviction occurred in February 2002, and the current felony convictions
involve 2010 offenses. But a substantial
time span between these felonies is not a "significant" mitigating
factor where the defendant "did not refrain from
time, and he did not add maturity to age."
(People v.
Hale committed
additional offenses during the time span between the 2002 offense and the
current felonies. In 2008, a woman
obtained a restraining order against Hale.
In 2009, he was convicted of "an intentional and knowing
violation" of the court's protective order. (§ 273.6.) In May 2010, he was convicted of using a
controlled substance. (Health & Saf.
Code, § 11550, subd. (a).) In
October 2010, a warrant issued for his arrest for possession of narcotics
paraphernalia. (Id., § 11364.)
Moreover, Hale served part of the time span between the 2002 felony and
the current offenses in prison.
The trial court also
could reasonably infer that Hale "did not add maturity to age." (People
v. Williams, supra, 17 Cal.4th at
p. 163.) The probation report
reflects that Hale's substance abuse has been a longstanding problem. He first used methamphetamine at the age of
14 or 15, and he continued to use it once a week until November 2010. When he was arrested in 1998, at age15, he
"exhibited symptoms of being under the influence of a controlled
substance." He had a 2010
conviction involving substance abuse. He
admitted that he "tested dirty" while on parole. The probation officer indicated that he had
problems obeying rules while in custody.
She said, "On December 25, 2010, [Hale] was booked at the Ventura
County jail. As of June 8, 2011, he had
accrued five major incident reports for violating jail rules, obnoxious behavior,
and accumulation of minor write-ups."
The probation officer asked Hale "how he felt about the victims or
how the present matter may have affected them." He replied, "I don't give a shit about
them." He added that he felt badly
about hitting Jessica in front of the children.
The trial court noted
that his current offenses involved death threats to members of his family. It said, "I remember this fairly vividly
because the emotion of the family was palpable.
They were terrified." The
court may properly consider the impact on the victims in deciding whether to
strike priors. (People v. Williams, supra,
17 Cal.4th at p. 161.) Hale's 2002
offense also involved a threat of violence.
He was convicted of threatening a victim/witness to a crime. (§ 136.1, subd. (c)(1).)
The trial court also
considered Hale's criminal history. In
the probation report, the probation officer said, "At age 28, the
defendant has a lengthy criminal record . . . ." His juvenile history includes sustained
petitions for driving stolen vehicles, assault, and CYA commitments. The probation officer said,
"Unfortunately, his life became more chaotic when he introduced substance
abuse and gang activity into his life."
At the sentencing
hearing, Hale's counsel requested the trial court to impose a seven-year
sentence. In his plea agreement, Hale
was advised that he faced a potential 15-year maximum sentence. The court found "nine years was
appropriate." Hale has not shown an
abuse of discretion.
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Charles
W. Campbell, Jr., Judge
Superior
Court County of Ventura
______________________________
Richard Lennon, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Stacy S. Schwartz, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code unless otherwise stated.
