P. v. Merritt

 

 

 

 

 

 

 

 

 

 

Filed 9/16/13  P. v. Merritt CA3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   DEVIN MICHAEL MERRITT,                           Defendant and Appellant.

C069512   (Super. Ct. No. 09F03812)

 

 

 

            Defendant
Devin Michael Merritt and a codefendant were charged with felony assault on a
fellow inmate.  Defendant was also
alleged to have eight prior convictions within the meaning of the three strikes
law.

            A jury
found defendant guilty as charged.  The
trial court found the allegations of all eight prior convictions to be true and
denied defendant’s Romerohref="#_ftn1" name="_ftnref1" title="">[1]
motion to strike seven of those priors.

            Defendant
makes two arguments on appeal.  First, he
argues the trial court’s sentence violates the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Constitution.href="#_ftn2"
name="_ftnref2" title="">[2]  Second, he avers the trial court’s “refusal
to strike [his] prior qualifying ‘strike’ convictions constituted an abuse of
discretion.”  Because both arguments lack
merit, we affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

            In February
2009 defendant and another inmate were playing handball in a concrete exercise
yard when the ball flew over a high wall. 
While defendant came to the guard on duty to ask for another ball, his
handball partner proceeded to assault a third inmate out of view of the guard.  When the guard finally realized what was
going on, defendant had already joined the fray.  The incident lasted only a few seconds.

            Defendant
was charged with assault on a prison inmate. 
At trial he testified that he had been trying to stop the fight rather
than participate in it.  The jury found
him guilty despite his testimony.

            Before
sentencing, defendant made a Romero
motion requesting the court strike all but one of his eight prior
felonies.  After reviewing the parties’
papers, as well as the probation report, the trial court denied the motion and
sentenced defendant to a total of 30 years to life in prison consecutive to the
48-year term he was already serving.  He
made no constitutional objection regarding the sentence.

DISCUSSION

I

>Constitutional Claim

            Defendant
asserts that his sentence violates both the Eighth Amendment’s ban on cruel and
unusual punishment and the Fifth Amendment’s double jeopardy clause.  Attempting to circumvent his failure to make
this objection during sentencing, he contends that “[w]hile defense counsel did
not specifically mention federal or state constitutional provisions, this court
should reach the merits under the relevant constitutional standards to prevent
forfeiture and/or an ineffectiveness-of-counsel
claim . . . .”

            “[I]t is
elementary that [a] defendant waive[s] [an argument based on the U.S.
Constitution] by failing to articulate an objection on federal constitutional
grounds below.”  (People v. Burgener
(2003) 29 Cal.4th 833, 886.) 
Defendant cites People v. Em
(2009) 171 Cal.App.4th 964 for the proposition that the court should
overlook the forfeiture in this case in the interest of judicial economy.  (See id.
at p. 971, fn. 5.)  Contrary to
defendant’s contention, we do not decide issues not properly before us.  (See People v. Alvarez (1996)
14 Cal.4th 155, 186 [bare reference to “ â€˜confrontation rule’ â€
not specific enough to preserve Sixth
Amendment confrontation clause argument]; People v. DeJesus (1995) 38 Cal.App.4th 1, 27
[because whether a punishment “in a particular case [is cruel and unusual] is
fact specific, the issue must be raised in the trial court”].)  In this case, defendant failed to properly
bring an Eighth or Fifth Amendment objection to the attention of the trial
court and thus forfeited those objections.

II

>The Romero Motion

            Defendant
further asserts that the trial court abused its discretion in declining to
strike seven of his eight prior convictions. 
In Romero, our Supreme Court
held that trial courts may dismiss one or more of a defendant’s prior
convictions in the furtherance of justice pursuant to Penal Code section
1385.  (Romero, supra,
13 Cal.4th at p. 530.)  In
particular the court 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.” 
(People v. Williams (1998)
17 Cal.4th 148, 161.)  On appeal
refusals to dismiss are reviewed for abuse of discretion.  (Id.
at p. 162.) 

            Defendant
argues that the trial court abused its discretion by failing “to consider all
of the facts, particularly including [his] limited and minor role in the
instant offense, his unchallenged testimony as to what motivated him to take
action, [the minimal effect the increased sentence would have on his ultimate
release date], and the difficult and troubled years he spent growing up without
a mother.”  We disagree.

            Defendant
argues that the trial court failed to properly take the nature of the
underlying offense into account in making its decision.  He “does not deny that [the victim] sustained
several facial fractures from the altercation, but emphasizes that, according
to the prosecution’s own evidence, the altercation lasted for just three or
four seconds, no weapons were involved and [defendant] was not present until the
very end.  Moreover, [the evidence]
support[s] the conclusion that it was [the codefendant] . . . who did
most of the damage to [the victim’s] face.” 
Defendant further points out he testified at trial that he only
“intervened in the incident so that he could break it up” and that this
testimony was unchallenged.  These
arguments are meritless because they amount to an attempt to relitigate the
case.  Because the trial court’s decision
is not manifestly unreasonable, this court may not disturb it.  The brevity of the criminal act does not
negate its violent nature.  Moreover, the
jury’s guilty verdict necessarily means it did not believe defendant’s
testimony concerning his benign motive.

            Additionally,
defendant contends that “[h]ad the qualifying prior convictions been dismissed,
[he] still would have faced a long, lengthy prison term while serving out the
remaining time on the 48-year sentence he received shortly before arriving at
California State Prison, Sacramento.”  He
cites no authority, however, for the proposition that a trial court must take
the length of the sentence into account when considering a Romero motion.  The trial
court simply has to evaluate the nature and circumstances of his present
offenses and prior serious and/or violent felony convictions in conjunction
with his background, character and prospects to determine if he may be deemed
outside the spirit of the three strikes law. 
(People v. Williams, >supra, 17 Cal.4th at p. 161.) 

            Reaching
further, defendant asserts that “the trial court’s rationale for denying [his]
motion to strike rested almost entirely on his ‘extremely violent’ past
crimes.”  He argues that this focus on
his past crimes violated the principle set out in People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968> that the court must consider both past
and present crimes when making sentencing decisions.  (Id.> at p. 979.)  Defendant points to the trial court’s
references to his “ â€˜unquenchable thirst for violence’ â€ and lack of
“ â€˜effort to reform or otherwise curtail his assaultive behavior’ â€
as demonstrating that the court overemphasized his prior criminal history in
coming to its decision.  Looking at the
record, however, we fail to see how the trial court abused its discretion.  After reviewing defendant’s long list of
prior criminal conduct, the court stated, “from the foregoing criminal history >and from the conduct for which he was
convicted in the current case . . . [¶] . . . I cannot
find facts sufficient to justify use of the Court’s
discretionary power under Penal Code section 1385.”  (Italics added.)  From this language, it is clear that,
contrary to defendant’s argument, the court evaluated both his present and past
crimes in conformity with the law governing Penal Code section 1385.

            Finally,
defendant contends that the court abused its discretion by not properly taking
into account his troubled upbringing. 
Defendant provides no argument on how the “difficulties he faced growing
up” place him outside the spirit of the three strikes law.  None of the events described in his brief --
events which also appeared in the probation report “reviewed in detail” by the
trial court -- mitigate his recidivist conduct. 
Thus, there was no abuse of discretion.

DISPOSITION

            The
judgment is affirmed.

 

 

 

 

                                                                                              ROBIE                          ,
J.

 

 

 

We concur:

 

 

 

          NICHOLSON              , Acting P. J.

 

 

 

          MAURO                       ,
J.