Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA056199, Douglas G. Carnahan, Judge. Affirmed.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Donald Adams appeals from the judgment entered following a jury trial that resulted in his convictions for possession of marijuana for sale and possession of a controlled substance, ecstasy, for sale. Adams was sentenced to a prison term of 13 years. Adams’s sole contention on appeal is that the trial court abused its discretion by denying his Romero motion. We affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
In the early morning hours of September 12, 2003, Los Angeles deputy sheriffs stopped Adams for minor traffic violations. One of the deputies noticed a strong odor of marijuana on Adams’s person, and Adams admitted he possessed marijuana in the car. A search of the vehicle revealed three plastic bags in the car’s center console. One contained 24 smaller Ziploc baggies, each containing the same amount of marijuana. More loose marijuana was found in the larger bag, around the 24 smaller baggies. The total amount of marijuana recovered was approximately 27.60 grams, enough to produce approximately 92 marijuana cigarettes. The second bag contained 17 ecstasy tablets. The third bag contained what appeared to be crushed ecstasy tablets. The amount of marijuana and ecstasy discovered in the car had a street value of between $650 and $1,025, depending on the quality of the marijuana. The packaging and quantity of the drugs indicated they were possessed for sale.
2. Procedure.
Trial was by jury. Adams was convicted of possession of marijuana for sale (Health & Saf. Code, § 11359) and possession of a controlled substance, ecstasy, for sale (Health & Saf. Code, § 11378).
Adams was originally sentenced to a term of 14 years 4 months in prison, pursuant to the Three Strikes law. Adams appealed his conviction and sentence to this court. In an unpublished opinion, we concluded that Adams had not admitted suffering prior convictions and there had been no trial on the issue. Therefore, we reversed the true findings on the prior conviction allegations, vacated the sentence, and remanded for further proceedings. In all other respects, we affirmed. (People v. Adams (Sept. 30, 2005, B175858) [nonpub. opn.].)
On remand, a jury found Adams had suffered a 1992 conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (c)), pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). It further found Adams had suffered three prior convictions pursuant to Health and Safety Code section 11370.2, subdivision (c), as follows: a 1992 conviction for unlawful possession of a controlled substance for sale (Health & Saf. Code, § 11351); a 1993 conviction for possession of cocaine base for sale (Health & Saf. Code, § 11351.5); and a 1994 conviction for unlawful transport, import, or sale of a controlled substance (Health & Saf. Code, § 11352).
After denying Adams’s Romero motion, the trial court sentenced Adams to a term of 13 years in prison, configured as follows. On Count 1 (possession of a controlled substance, ecstasy, for sale), the court imposed the midterm of two years as the base term, doubled pursuant to the Three Strikes law, plus three years for each of the prior drug convictions pursuant to Health and Safety Code section 11370.2, subdivision (c). Sentence on count 2 (possession of marijuana for sale) was run concurrently with sentence on count 1. The trial court also imposed a restitution fine, a suspended parole revocation fine, and a court security fee. Adams appeals.
DISCUSSION
Adams moved pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, to strike a prior conviction allegation. After hearing the arguments of the parties and considering the motion, probation reports, and a police report related to the prior conviction, the trial court denied the Romero motion. The trial court considered that the current convictions were not violent and that Adams had been 18 when he committed the prior strike offense. Nonetheless, Adams had not lived a crime-free life in the years between the strike and the current offenses, but instead had suffered eight convictions, some of which were felonies, some misdemeanors. The trial court concluded, viewing the totality of the circumstances, that Adams did not fall outside the spirit of the three strikes sentencing scheme.
Adams contends the trial court abused its discretion by denying his motion to strike his 1992 conviction for assault with a deadly weapon. He urges the prior conviction was remote in time; that he was not convicted of a violent crime in the period between the prior and current convictions; and the prior crime was “not of an especially violent nature.” Further, he asserts that the current offenses were nonviolent. We are unconvinced.
In the furtherance of justice, a trial court may strike a prior conviction allegation. (Pen. Code, § 1385, subd. (a); People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) A denial of a motion to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Under that standard, the party seeking reversal must “ ‘clearly show that the sentencing decision was irrational or arbitrary.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (Id. at p. 978.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (People v. Carmony, supra, at p. 378.) Therefore, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court must consider are “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.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) We presume the trial court 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.)
Although the prior conviction occurred in 1992, approximately 11 years before Adams committed the instant offenses, the trial court properly took into account Adams’s significant criminal history. (See generally People v. Philpot (2004) 122 Cal.App.4th 893, 906-907.) Adams’s juvenile history included sustained petitions for the strike prior, assault with a deadly weapon, in 1992 (Pen. Code, § 245, subd. (c)), carrying a loaded firearm in 1990 (Pen. Code, § 12031, subd. (a)), and vandalism in 1991 (Pen. Code, § 594, subd. (a)(1)). As the jury found, in 1992 he was convicted of unlawful possession of a controlled substance for sale (Health & Saf. Code, § 11351). In 1993 he was convicted of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). In 1994 he was convicted for the unlawful sale, transport, or import of a controlled substance (Health & Saf. Code, § 11352). He was released from prison in December 1996. In 1997, he was convicted of being a felon in possession of a firearm, and sentenced to probation. Later that year he was convicted of possession of over 28.5 grams of marijuana, and again sentenced to probation. In 2001, he was convicted of driving without a license. In 2002, he was convicted of possession of marijuana for sale, and again given probation. In 2003, Adams committed the offenses underlying the instant appeal.
In short, Adams’s “conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense and his underlying drug addiction. There is no indication from the record here that the court failed to consider the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. [Citation.]” (People v. Philpot, supra, 122 Cal.App.4th at pp. 906-907.) Contrary to Adams’s argument, the fact the majority of the offenses were nonviolent does not compel a finding the trial court abused its discretion. Adams’s repeated drug sale activity is serious and detrimental to society.
Second, contrary to Adams’s attempt to characterize his strike conviction for assault with a deadly weapon as a nothing more than a youthful prank with no malicious intent, the record before us suggests the conduct underlying the prior strike was serious. The 1992 probation report explained that on January 24, 1992, a police helicopter was circling near the 1800 block of West 94th Street in Los Angeles, searching for persons believed to be stripping cars. Adams set off three skyrockets (a form of firecracker) in an attempt to strike the circling helicopter. One of the skyrockets came within 10 feet of the helicopter. When patrol units arrived, officers observed Adams firing a fourth skyrocket. When Adams saw the officers approach, he fled. According to the helicopter pilot, Adams’s actions endangered the lives of the persons on board the helicopter. The skyrocket was capable of “bringing the helicopter down, ” by causing an explosion or causing the pilot to lose control of the craft. The probation report stated, “The defendant’s behavior in the present offense was reckless and destructive. There can be no doubt that he was trying to shoot the helicopter out of the sky.” Given this record, the trial court did not abuse its discretion by concluding the prior strike involved intentional and dangerous behavior, rather than an innocent prank.
In a related vein, Adams argues that the trial court concluded he was granted probation on the strike prior because of his youth, and erroneously failed to consider he might have been granted probation because the judge in the 1992 case did not believe the offense was serious. Adams complains that the instant trial court failed to “give the circumstances of the strike offense any weight” and relied instead on “imagination, speculation, supposition, and guesswork” when it concluded the strike prior was serious. This characterization is not borne out by the record. To the contrary, defense counsel extensively argued that the conduct underlying the prior strike was “an accident, basically horseplay.” Defense counsel pointed out that the 1992 trial court ordered probation despite the probation report’s recommendation of a harsher sentence. In response, the instant trial court opined that probation was granted because the 1992 trial court “was looking at a relatively young man with at that point no adult history really . . . . And that he probably felt that it was just inappropriate to send [Adams] to state prison right off the bat in a case of that nature.” Defense counsel countered that the 1992 trial court may have granted probation because it did not believe the crime warranted a prison term. The instant trial court responded, “[Adams] was convicted of what he was convicted. I have indicated why I think the judge probably acted as he did, but that doesn’t in my judgment decrease the severity of the conduct. We are talking about some dangerous conduct there, I think.” The trial court clearly considered and rejected the argument now raised on appeal. Certainly the trial court in the instant matter was not obliged to accept the defense position that the prior assault was insignificant. As we have discussed, the record suggests to the contrary.
Finally, People v. Burgos (2004) 117 Cal.App.4th 1209, cited by Adams, does not assist him. In Burgos, a trial court abused its discretion by refusing to strike one of two prior convictions that arose from the a single act. (Id. at p. 1211.) Burgos’s two prior strikes were for attempted robbery and attempted carjacking, and were both based on the same act. Burgos concluded the priors were so closely connected that failure to strike one of them was an abuse of discretion. In particular, “unlike perhaps any other two crimes, ” section 215 expressly prohibited imposing punishment for both carjacking and robbery arising from the same act. (People v. Burgos, supra, at p. 1216.) Burgos’s prior history did not otherwise warrant treating him as a third strike defendant, in that he had only been convicted of misdemeanors. (Id. at p. 1216.) Burgos concluded that, “in view of the particular offenses that constituted the two prior strike convictions . . . it was an abuse of discretion to fail to strike one of those convictions . . . .” (Id. at pp. 1216-1217.) Burgos, therefore, stands for the proposition that a trial court abuses its discretion where it fails to strike one of two prior convictions that arise from the same act, where nothing else in the defendant’s history makes imposition of a third strike sentence appropriate. Burgos has no application here. In the instant matter, only one strike was at issue, not two strikes arising from the same act.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.