Opinion
C084262
01-16-2018
THE PEOPLE, Plaintiff and Respondent, v. CLIFTON ROBERT WALTER HICKS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CRF160209, CRF161068)
In January 2016 defendant Clifton Robert Walter Hicks punched and kicked his fiancé, ejecting her from the car in which they were driving. He then drove away but returned a short time later and attempted to force her back into the car. In February 2016 defendant robbed a bank then fled when Woodland police attempted to pull him over. Charged with multiple offenses arising from both incidents, defendant pleaded no contest to all charges and admitted multiple alleged enhancements. He was sentenced to an aggregate term of 18 years in state prison following the trial court's denial of his Romero motion to strike a prior strike. He appeals that denial.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTUAL AND PROCEDURAL BACKGROUND
Current Offense
Case No. 16-0209
On January 11, 2016, while driving together, defendant and his fiancé began arguing after the fiancé disclosed that she had suffered a miscarriage of defendant's child and she wanted to end their relationship. Defendant pulled into a parking lot and punched his fiancé in her head and face at least ten times. Defendant then kicked her at least three times, including physically kicking her out of the car. Once she was out of the car, defendant drove away. Defendant returned to the parking lot a short time later. He got out of the car and demanded his fiancé get back in the car. She refused and ran away. Defendant ran after her, grabbed her from behind with both arms, and attempted to get her back into the car. A bystander intervened and used pepper spray against the defendant, then called the police. Police arrived soon after.
At the preliminary hearing, defendant's fiancé was unable to recall the specifics of what occurred on January 11, 2016, other than getting into an argument with the defendant, pulling into a parking lot, and later feeling choked by pepper spray.
Defendant was charged with attempted kidnapping (Pen. Code, §§ 664, 207, subd. (a)), a felony; false imprisonment (Pen. Code, §§ 236, 237, subd. (a)), a felony; and inflicting corporal injury on his fiancé (Pen. Code, § 273.5, subd. (a)), also a felony. Further, it was alleged defendant was previously convicted of a serious felony (Pen. Code, § 667 subds. (c), (e)(1)), and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant entered a plea of no contest to all counts and admitted all enhancements. The court sentenced defendant to three years and eight months in state prison. Case No. 16-1068
On February 22, 2016, defendant entered Umpqua Bank in Woodland. He approached a teller window and handed the bank teller a note stating, "I have a gun. All the money now." Although the bank teller did not see a gun, she gave defendant $2,869 and triggered a silent alarm. Defendant then walked out of the bank, across a parking lot, entered a car, and drove away. Defendant's fiancé was waiting in the car. Around the time defendant left the bank, a dispatch describing the suspect in a recent bank robbery and the suspect's vehicle was broadcast to Woodland police. A police officer then saw defendant's vehicle, which matched the vehicle description of the bank robber, and pulled defendant's vehicle over. After the officer asked defendant for identification, defendant sped away. During the three-mile pursuit, the police officer reached speeds up to 125 miles per hour, before defendant pulled over at a rest stop. At the rest stop, officers found $1,570 inside defendant's fiancé's purse. Officers took the defendant and his fiancé into custody. Defendant told the investigating officers that due to short-term memory loss from mental disorders, he did not remember going into a bank that day.
Defendant was charged with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), a felony, and evading a peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), a felony. Further, it was alleged defendant was previously convicted of a serious felony (Pen. Code, § 667 subds. (a)(1), (c) & (e)(1)), defendant had two prior prison terms (Pen. Code, § 667.5, subd. (b)), and defendant committed the crime while out on bail for a pending felony offense (Pen. Code, § 12022.1, subd. (b)). Defendant entered a plea of no contest to all counts and admitted all enhancements. The court sentenced defendant to 14 years and four months in state prison.
Procedural Background
Defendant filed a motion pursuant to Romero requesting the court dismiss the finding of his prior strike because of "his rough upbringing as detailed in his social history, his significant mental health issues, the fact that his prior strike is not all the [sic] serious, the fact that his prior strike will still be used to enhance his sentence by five years, the fact that there were no long term injuries or great financial loss in his two current cases, and the fact that he will still be subject to a lengthy period of incarceration if this court dismisses his prior strike."
On appeal, defendant contends the trial court abused its discretion by denying his motion and by finding that the defendant fell within the spirit of the "Three Strikes" law. Specifically, defendant argues the nature of his current offense, his prior criminal history, his background and personal characteristics, and the length of his sentence all weigh in favor of dismissing defendant's prior strike.
DISCUSSION
The trial court has discretion over general sentencing matters and discretion to strike or dismiss a prior strike. (People v. Sandoval (2007) 41 Cal.4th 825, 850-851; People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) A trial court has the discretion to strike a prior serious felony conviction for the purpose of sentencing only if the defendant falls outside the spirit of the Three Strikes law. (Pen. Code, § 1385; People v. Williams (1998) 17 Cal.4th 148, 161; Romero, supra, 13 Cal.4th at pp. 529-530.) In making this assessment, 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." (Williams, supra, at p. 161.)
However, the striking of a prior serious felony conviction is not a routine exercise of sentencing discretion. (People v. Strong (2001) 87 Cal.App.4th 328.) It is an extraordinary exercise of discretion to determine that a defendant who falls within the letter of the Three Strikes law should be deemed to be outside the spirit of the law and thus treated as if he or she has fewer prior convictions. (Id. at pp. 337-338.) If the trial court concludes an individual should be deemed to be outside the spirit of the law and is able to provide reasons that can withstand scrutiny, the court may strike a qualifying strike. (Carmony, supra, 33 Cal.4th at p. 377.)
When a trial court declines to strike a prior strike, we review its decision for abuse of discretion. (Carmony, supra, 33 Cal.4th pp. 374-375.) We find an abuse of discretion only if the court's decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at pp. 376-377.)
Reversal of a trial court's denial is justified where the trial court was unaware of its discretion to strike a prior strike or refused to do so for impermissible reasons. (Carmony, supra, 33 Cal.4th at p. 378.) But where the trial court, aware of its discretion, " 'balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' " (Ibid.) Absent a showing the court was unaware of its discretion, we presume the trial court acted to achieve legitimate sentencing objectives. (Id. at pp. 376-377.) Additionally, "The court is presumed to have considered all the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers), citing People v. Kelly (1997) 52 Cal.App.4th 568, 582.)
The trial court here impliedly found the circumstances surrounding defendant's prior strike, coupled with the nature of the current offense, placed the defendant inside the spirit of the Three Strikes law. In brief, the court declined to strike defendant's strike based on the court's assessment of defendant's criminal history and current offense.
I
Nature of the Current Offense in Case No. 16-0209
Defendant raises no arguments regarding the nature of the current offense in case No. 16-1068. --------
Defendant first argues the current offense, "while violent, was more the result of a sudden emotional event coupled with [defendant's] mental illness than a disposition for a violent crime" and should thus weigh in favor of dismissing defendant's strike prior. Additionally, defendant contends his culpability is "greatly diminished as a result of the circumstances in which it took place, and [defendant's] history of mental illness."
However, the trial court was aware of the circumstances surrounding the current offense as well as defendant's history of mental illness. The court is presumed to have considered all relevant factors disclosed in defendant's request to strike the strike. (Myers, supra, 69 Cal.App.4th at p. 310.) Because defendant concedes the current offense was violent and does not affirmatively show the court did not consider all relevant factors, we do not find the trial court's evaluation of the current offense to be irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 377.)
II
Defendant's Criminal History
Next, defendant argues his criminal history falls outside the spirit of the Three Strikes law. We disagree. Defendant's criminal record, consisting of several misdemeanor and felony convictions, began in 2004. Defendant's prior performance on probation was consistently unsatisfactory. Defendant was on parole for his prior strike when he committed the first string of offenses and was out on bail during the commission of the second string of offenses.
Defendant received his first strike in 2014, for battery causing serious bodily injury (Pen. Code, § 243, subd. (d)). The trial court recognized that the battery consisted only of a single punch, but noted defendant proceeded to spit on the arresting officer's shoe when police attempted to apprehend the defendant. These aggravated facts are at odds with defendant's assertion that he falls outside the spirit of the Three Strikes law. We do not find the trial court's contrary determination to be irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 377.)
III
Defendant's Personal Characteristics
Furthermore, defendant argues his background and job prospects are compelling reasons to dismiss his strike prior. Defendant contends his long-time mental illness, history of substance abuse that exacerbates his mental illness, and his prospects for the future—that defendant has a GED and is a trained welder—mitigate defendant's criminal culpability such that he falls outside the spirit of the Three Strikes law.
The trial court was presented with, and reviewed, defendant's social history and documents associated with defendant's social history. The fact that the court focused its explanatory comments on defendant's current offense and criminal history, does not mean that it considered only those factors when it declined to strike defendant's prior strike. (Myers, supra, 69 Cal.App.4th at p. 310.) Absent an affirmative showing that the court did not consider all factors, we find no abuse of discretion.
IV
Fairness of Defendant's Sentence
Finally, defendant contends a significant prison term was still available to the court if the strike were dismissed. Defendant argues a "considerable punishment" of 12 years and six months, rather than 18 years, would have been imposed had his strike prior been dismissed. In deciding whether to strike a prior strike, "a defendant's sentence 'is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.' " (People v. Wallace (2004) 33 Cal.4th 738, 748.) However, defendant's current offenses are troubling in light of his criminal history, which includes a prior strike for battery with serious bodily injury, a misdemeanor for battery, several other felonies and misdemeanors, unsuccessful prior performance on probation, and the fact that defendant committed the first string of offenses while on parole and committed the second string of offenses while out on bail. Under the circumstances, we do not find 18 years to be unjust.
Furthermore, the court imposed the available mid-term sentences on the defendant. The sentence imposed is neither irrational nor arbitrary.
DISPOSITION
Defendant has not shown an abuse of discretion by the trial court. The judgment is affirmed.
RAYE, P. J. We concur: ROBIE, J. HOCH, J.