P. v.Gillespie

















Filed 3/15/13 P. v.Gillespie CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. VICTOR GEORGE GILLESPIE, Defendant and Appellant.

G046143 (Super. Ct. No. 10HF0454) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Steven D. Bromberg, Judge. Affirmed as modified.

Michael B. McPartland,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Lynne G. McGinnis and Kristine A.
Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

*
* *

A jury convicted defendant
Victor George Gillespie of sexual battery
by restraint (count 2; Pen. Code § 243.4, subd. (a)),href="#_ftn1" name="_ftnref1" title="">[1]
first degree burglary (count 3; §§ 459, 460, subd. (a)), and misdemeanor
resisting arrest (count 4; § 148, subd. (a)(1)). Upon the People’s motion, the court dismissed
allegations defendant had two serious felony prior convictions under section
667, subdivision (a)(1). Defendant then admitted
he had suffered two prior strikes under the “Three Strikes” law. (§§ 667, subds. (d), (e)(2)(A), 1170.12,
subds. (b), (c)(2)(A).) The court
sentenced defendant to 25 years to life in prison on count 2.href="#_ftn2" name="_ftnref2" title="">[2]

On appeal defendant asserts the court erred by declining to strike his prior strikes and by
miscalculating his presentence conduct credits.
We agree the trial court miscalculated his conduct credits. In all other respects, we affirm the
judgment.



FACTS



On the night of March 23, 2010, 24-year-old H.S. took
her dog for a quick walk near her apartment.
An African-American man walked very close to H.S. and said, “Hi.” He walked “too close” to H.S., which made her
feel uncomfortable. She did not
recognize him, although she knew most of her neighbors.

H.S. returned to her
apartment, locked the front door, closed the blinds, and went into her
bedroom. About five to 10 minutes later,
her dog’s ears went up and he ran out “really” fast. H.S. thought the dog had heard a common noise
like neighbors talking outside.

About five minutes
later, H.S. felt tired, lay down on her bed, called for her dog, and closed her
eyes. She heard running footsteps and
felt someone jump on top of her and grab her hip. She looked at the person’s face and did not
recognize him. H.S. did not smell any
alcohol on him. At trial, she identified
defendant as the man who jumped on her.

Defendant said, “Hey
baby.” He put his hand down her pants
and grabbed her vagina really hard under her panties. H.S. grabbed his hand out, and started
punching, kicking, and screaming. After
she fought with defendant for about seven to eight seconds, he jumped off her
and ran out the open, back sliding door.
(H.S. was sure the door had been closed when she returned from her
walk.)

H.S., wanting to get out
of the house, opened the front door just in time to see defendant run
past. H.S. yelled, “Get the f out of
here.” H.S. phoned 911, described her
attacker, and said he was running toward Culver Drive.

Two officers responding
to the area chased defendant, who
refused to stop despite the officers’ demands he do so. One officer caught up with defendant, drew
his taser, and ordered him to the ground.
Defendant put his hands up and went down on his knees. An officer handcuffed him. The officer did not notice any odor of
alcohol or slurred speech.

In a police interview,
defendant eventually admitted he had seen a woman walking a dog and wanted “to
mack with her,” meaning he wanted to converse with her. He said there was an apartment with an open
fence and open sliding door with South Park on the television in the living
room. Eventually, he admitted going into
a room where a woman was lying on her bed and said he fell on top of her. Defendant claimed he was so intoxicated that
he was staggering. He admitted putting
his hand down her pants and touching her skin.

Another woman testified
that on numerous occasions in early 2010, defendant came too close to her when
she was walking her dog, or watched her as she came and went, which made her
feel uncomfortable and afraid.



>Defense Case

Defendant testified on
his own behalf. He claimed he was under
the influence of Xanax, Ecstasy, and marijuana laced with PCP and mistakenly
entered the wrong apartment when he was trying to meet some friends at a party. He watched South Park on the television for a
short while. He then walked down the
hallway and into a bedroom. He tripped
over an untied shoelace and fell onto a woman’s bed. The woman started screaming at him. He pushed himself off her, using his hand on
the area between her vagina and her href="http://www.sandiegohealthdirectory.com/">stomach (above her clothes),
and ran out of her room. He denied ever
trying to sexually assault her or that he intended to do such acts when he
entered the home.



DISCUSSION



The Court Did Not
Abuse Its Discretion by Denying Defendant’s Invitation to Dismiss a Prior
Strike

The probation report
revealed that when defendant was 12 years old, he grabbed a woman’s bottom when
she was riding a bike. When he was 13
years old, he peeped in someone’s window and resisted arrest. When he was 14 years old, he violated
probation by not reporting to his probation officer, missing school, and
failing to complete his community service.
In 2007, when he was 17 years old, he suffered his two strikes, both of
which were sustained juvenile petitions for robbery under section 211. (§§ 667, subds. (d), (e)(2)(A), 1170.12,
subds. (b), (c)(2)(A), 667.5, subd. (c)(9) [robbery is serious felony], 1192.7,
subd. (c)(19) [robbery is violent felony].)
As to the first strike, defendant and a companion tried to steal alcohol
from a grocery store and when confronted, they assaulted a store employee and
the store manager. Defendant pushed the
manager, saying, “Get the fuck out of my way.”
The second strike occurred three and a half months later, when defendant
distracted a victim by asking her for the time and then grabbed her wallet and
ran.

Prior to the href="http://www.fearnotlaw.com/">sentencing hearing, defendant invited the
court to exercise its section 1385 discretion to dismiss one or both of the
juvenile adjudications. He argued that
he was under the influence of drugs and alcohol on the date he committed the
current offenses and had abused drugs and alcohol since he was 16 years old. He asserted he (1) had been attending counseling
sessions and working toward obtaining his high school diploma while in custody,
(2) had expressed remorse to the victim, (3) had his family’s support and was
gainfully employed during his “brief adult life,” and (4) was highly motivated
and had no gang affiliation. He further
argued that his juvenile adjudications occurred only months apart and differed
in substance from his current convictions.
Defendant concluded these factors combined to place him outside the
spirit of the Three Strikes law for sentencing purposes.

On appeal
defendant contends the trial
court abused its discretion by denying his invitation under section 1385 to
dismiss one or more of his prior strike adjudications. He argues he “quickly fled the apartment when
[H.S] yelled at him and told him to leave, so these offenses were less serious
than likely would have been committed by a violent repeat offender, and did not
justify the imposition of a 25 year to life sentence under the three strikes
laws, which the trial court recognized would likely result in [defendant] never
being released from prison.” He asserts
he would have good prospects upon his release from custody, noting the factors stated in his probation
report that (1) his uncle has offered to give him a job in the future, and (2)
prior to his arrest, defendant had planned to join the Marine Corps after he
completed high school. He notes that, absent the two prior strikes,
his sentence would have been at most a six-year prison term. (§ 461, subd. (a) [six-year maximum sentence
for burglary].) He argues that his two
prior robbery adjudications did not warrant increasing a maximum six-year term
to 25 years to life, emphasizing that the first robbery began as a shoplifting
incident and the second robbery involved his purse snatching after distracting
the victim. He concludes the court
should have dismissed one strike and imposed a sentence of between four to 12
years in prison.

Section 1385,
subdivision (a), authorizes a court, on its own motion or a prosecutor’s
application, to “order an action to be dismissed” in
furtherance of justice. In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 508 (Romero), our Supreme Court “held
that the Three Strikes law did not remove or limit this section 1385 power to
strike sentencing allegations.” (People v. Garcia (1999) 20 Cal.4th 490, 496 (Garcia).) “[A] defendant may invite the court to exercise its
power . . . , and the court must consider evidence offered
by the defendant in support of his assertion that the dismissal would be in
furtherance of justice.” (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441-442.)

Our Supreme Court has
set forth guidelines on “how trial and appellate courts should undertake to
rule and review in this area.” (People v. Williams (1998) 17 Cal.4th 148, 152 (Williams).) When ruling on a section 1385 motion in the
context of a Three Strikes case, a trial court must consider the defendant’s
constitutional rights and “‘the
interests of society represented by the People.’” (Romero,
supra, 13 Cal.4th at p. 530.) The court should take into account
“‘individualized considerations’” (id. at p. 531), such as
“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” (Williams, at p. 161). The ultimate question is whether
“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.”
(Ibid.) “[T]he
underlying purpose of striking prior conviction allegations is the avoidance of
unjust sentences.” (Garcia, supra, 20 Cal.4th at p. 500.)

“The purpose of [the Three Strikes law] is to
deter and punish recidivism by making repeat offenders serve longer
sentences.” (Williams, supra, 49 Cal.App.4th at p.
1638.) Because the Three Strikes
law “creates a strong presumption that any sentence that conforms to [its]
sentencing norms is both rational and proper,” a trial court’s decision not to
strike a prior conviction will generally be upheld. (People v. Carmony (2004) 33 Cal.4th 367, 378.)

A trial court’s section 1385
ruling is “subject to review under the deferential abuse of discretion standard.” (People v. Carmony, supra, 33 Cal.4th.
at p. 374.) This is true whether the trial court dismisses, or
declines to dismiss, a prior felony conviction allegation. (Ibid.) “In reviewing for abuse of discretion, [an
appellate court must] be guided by two fundamental precepts.” (Id.
at p. 376.) “First, ‘“[t]he burden is on
the party attacking the sentence to clearly show that the sentencing decision
was irrational or arbitrary.”’” (Ibid.) “Second, a ‘“decision will not be reversed
merely because reasonable people might disagree.”’” (Id.
at p. 377.) Abuse of discretion for
failure to strike occurs only in “limited circumstances,” such as where the
trial court was unaware of its discretion or “considered impermissible factors”
or in an “extraordinary case — where the relevant factors described in Williams . . . manifestly support
the striking of a prior conviction and no reasonable minds could differ . . .
.” (Id. at p. 378.)

Here, the court did not
abuse its discretion by declining defendant’s invitation to dismiss a prior
strike adjudication. The court reviewed
the probation report, defendant’s statement in mitigation, and defendant’s
section 1385 invitation. The court gave
“very serious consideration” to defendant’s invitation. The possibility of a 21-year-old person
serving a potentially full life sentence “weighed heavily” on the court,
causing the court to weigh, consider, and reconsider the issues. The court considered defendant’s interests
and those of society, and performed an individualized evaluation of the
relevant factors. The court stated,
“[Defendant] is a young man who is 21 years old, and the imposition of all
strikes with concurrent sentencing could result in a maximum prison sentence of
25 years to life. The court has considered
many factors in determining if a Three Strikes sentence is appropriate in this
case or striking one or more strikes pursuant to Romero and Williams
would even be appropriate.” The court
stated its findings. Defendant’s current
offenses and two prior robbery adjudications all reached “a significant level
of egregiousness.” The prior robberies
occurred “just a few months apart from each
other . . . when [defendant] was 17 years old, only a few
years before the commission of the current crimes.” “His two current crimes are violent and more
disturbing. They were predatory in the
worst possible way. He believes that
he’s entitled to commit these acts, and this creates a serious danger to the
people who are entitled to a proper judgment, the result of which would be
protection of society.” “The credible
evidence submitted at the time of trial does not support” defendant’s assertion
he acted under the influence of drugs and alcohol. At age 21, defendant has “a history of
violence, theft and inappropriate sexual acts directed to women that had, for
the most part, gone unchecked by the system, commencing at age 12 and
continuing until he was 18, and then as an adult, and he conducts himself with
impunity. In the current case,
[defendant] lied continuously to the police, and tried to continue that course
when he testified in court during trial.”
Defendant’s “history of offending and re-offending” and his belief in
entitlement “strongly suggests that if given the opportunity he will continue
to re-offend.” The court concluded
defendant came within the spirit of the Three Strikes law.

The
court thoroughly considered the relevant factors and circumstances. Defendant fails to show the court’s ruling
was irrational or arbitrary.



Defendant is Entitled to Additional
Presentence Conduct Credit

Defendant
contends the court erred by limiting his presentence conduct credit pursuant to
section 2933.1, based on the circumstance that he burglarized a home occupied
by a person other than an accomplice, even though that fact was not charged or
proven as required by section 667.5, subdivision (c)(21).

Section
2933.1, subdivision (a) limits a person convicted of a violent felony listed in
section 667.5, subdivision (c), to 15 percent of presentence work time
credit. Section 2933.1, subdivision (c)
limits such a person’s conduct credit to 15 percent of the actual period of
confinement. Under section 667.5,
subdivision (c)(21), first degree burglary constitutes a violent felony, if “it
is charged and proved that another
person, other than an accomplice, was present in the residence during the
commission of the burglary.” (Italics
added.)

Here, the
burglary count in the information charged defendant with “unlawfully enter[ing]
an inhabited dwelling house . . . inhabited by JANE DOE,
with the intent to commit a violation of the Penal Code section 261 (a)(2)
[rape] and/or 289 (a)(1) [sexual penetration], a felony.” Defendant argues the phrase “inhabited by
Jane Doe” did not necessarily mean Jane Doe was present in the home, because a
“house is consider[ed] to be inhabited if it is currently being used for
dwelling purposes, whether it is actually
occupied at the time of the burglary or not.” Defendant is correct. Section 459, which defines burglary,
provides: “As used in this chapter,
‘inhabited’ means currently being used for dwelling purposes, whether occupied
or not.” Thus, the information did >not charge defendant with burglary with
a non-accomplice present at the time.

The court
erred by ruling defendant was entitled to presentence conduct credit of only 15
percent of his actual time served.
Section 2933.1, by its terms, applies to violent felonies listed in
section 667.5, subdivision (c). None of
the offenses of which defendant was convicted is listed in that
subdivision. (See People v. Thomas (1999) 21 Cal.4th 1122, 1124-1130 [Three
Strikes prisoner entitled to presentence conduct credits computed under § 4019
if current conviction is not for § 667.5 “violent” felony].) Under the plain wording of section 667.5,
subdivision (c)(21), the presence of a non-accomplice during a burglary must be
pleaded and proved in order for the burglary to constitute a violent crime. (See People
v. Mancebo (2002) 27 Cal.4th 735, 738-739, 744 [due to § 667.6’s “express
pleading and proof requirements,” court erred by imposing One Strike sentencing
based on multiple victim circumstance not alleged in the information; error was
not harmless, even though information contained separate counts with separate
victims].)

Because
defendant was convicted of first degree burglary (a serious felony under
§ 1192.7, subd. (c)(18)) and the court required him to register as a sex
offender, under the version of section 4019 in effect on the date he committed
the offenses in this case, he is entitled to 819 days of presentence credit,
consisting of 615 actually served days and 204 days of section 4019 conduct
credits.href="#_ftn3" name="_ftnref3" title="">[3]



DISPOSITION



The
judgment is modified to grant defendant a total of 819 days of presentence
credits, comprised of 615 days in actual custody and 204 days of conduct
credit. The trial court is directed to
prepare an amended abstract of judgment and to forward a certified copy to the href="http://www.fearnotlaw.com/">Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.





IKOLA,
J.



WE CONCUR:





O’LEARY, P.
J.





MOORE, J.