Opinion
C042088.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. DEDRA LYNN OBRYANT, Defendant and Appellant.
After a jury trial waiver, the trial court found defendant Dedra Lynn Obryant guilty of possessing cocaine (Health & Saf. Code, § 11350, subd. (a)), and not guilty of possessing a billy (Pen. Code, § 12020). The trial court found defendant had one prior serious felony conviction for robbery and five prior prison terms. ( §§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)-(d).) The trial court declined to strike defendants prior serious felony conviction and sentenced defendant to nine years in prison.
Undesignated section references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628.
On appeal, defendant contends the trial court abused its discretion by failing to strike her "remote" prior serious felony conviction. We disagree. However, we have found an error at sentencing and shall correct it.
FACTS AND PROCEDURAL HISTORY
Butte County Deputy Sheriff Grant Kyle encountered defendant in Oroville on January 4, 2001, while he was involved in a disturbance call. Defendant drove up in a car belonging to Riviera Briggs, a mobility-impaired woman who was seated in the back. There was a "verbal altercation." Deputy Kyle searched defendant pursuant to a parole search condition and found 1.27 grams of rock cocaine in her jacket pocket.
Defendant was acquitted of possessing a billy. (& sect; 12020, subd. (a).)
The prosecution presented evidence that defendant had been convicted of robbery and sent to prison in 1986. (§ 211.) Defendant had also served one prior prison term for forgery (§ 470) (1986), two terms for petty theft with prior convictions (§ 488) (1991, 1995), and one term for second degree burglary (§ 459) (1999).
DISCUSSION
I
Defendant contends the trial court erred by failing to strike her prior serious felony conviction because it was remote, because her record was devoid of violence, and because her current drug conviction was a result of her long drug addiction. We conclude the trial court properly exercised its discretion in declining to strike the prior conviction.
A.Background
Defense counsel argued in his written motion that the 41-year-old defendant had been a cocaine addict for more than 25 years and had been incarcerated for more than half her life. Defense counsel argued that punishing defendant by incarcerating her, in light of the failure to treat her addiction through any long-term program, would not assist society. Defense counsel contended that striking the prior serious felony conviction would limit defendants sentence to six years, thereby making her eligible for commitment as a narcotic addict to the California Rehabilitation Center (CRC).
The prosecution countered that defendant had been in continuous legal trouble since 1981 and had evidenced no interest in drug treatment. At the hearing, the prosecution noted that, not only was defendant on parole at the time of the commission of the current offense, but, after having served her violation time for the current drug possession offense, she posted bail and was rearrested for stealing ephedrine. Defendant was an habitual offender.
Defense counsel countered that reoffending was a "benchmark" of severe drug addiction.
The trial court agreed the 1986 robbery was relatively remote and defendant was a drug addict, but noted defendant was also "stealing and doing other things" and not living a crime- free life.
B.Analysis
The California Supreme Court concluded in People v. Superior Court (Romero), supra, 13 Cal.4th at pages 529-530, that "section 1385(a) . . . permits a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law."
On appeal, a trial courts decision not to strike a strike is subject to limited review for abuse of discretion. In People v. Williams (1998) 17 Cal.4th 148, 948 P.2d 429, our Supreme Court clarified the meaning of exercising discretion to strike an allegation in "furtherance of justice." The court concluded: "We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, `in furtherance of justice pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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 schemes 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." (Id. at p. 161.)
In this case, defendant relies on the remoteness of her 1986 robbery conviction, the nonviolent nature of the current offense, and her unquestioned drug addiction as factors the trial court should have used to find her outside the spirit of the Three Strikes law. We disagree.
First, as all parties acknowledged, defendants criminal career after her 1986 robbery conviction has been an unbroken series of convictions involving stealing. It also evinces a virtually unbroken series of new prison terms and parole violations. The trial courts comment that defendant had not been "crime-free" is an understatement. Defendant has been under the jurisdiction of the Department of Corrections, in several counties, almost without a break, for more than 20 years. Defendant managed to commit an additional parole violation and serve two parole violation terms simply while awaiting trial in this case.
Second, defendants drug addiction is a powerful motivation for her to continue committing crimes. She has demonstrated no interest in treatment, either before or after the commission of this crime. Indeed, under the circumstances of this case, in light of defendants continuous criminality, she epitomizes the "revolving door" recidivist targeted by the Three Strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 331-332; see also People v. Thornton (1999) 73 Cal.App.4th 42, 43-46, 49 [reversing order dismissing two of three strikes, where defendant had a long history of felonies, misdemeanors, drug use, and parole violations, which showed that his background, character, and prospects were "dismal, and cannot be said to be outside the spirit of the Three Strikes law"]; People v. Barrera (1999) 70 Cal.App.4th 541, 554-555 [the courts refusal to dismiss one of defendants two 14-year-old strikes was justified by defendants "long-standing drug addiction," his criminal history, including 11 different misdemeanors within the past seven years, three prior felonies, and numerous probation and parole violations].) The trial court did not abuse its discretion.
II
We have noted an error requiring a modification of the judgment.
Defendant was awarded conduct credit of 20 percent (50 days) for her 246 actual days served, apparently under the misapprehension that all defendants with prior strike convictions earn only 20 percent of presentence credit. (§ 1170.12.) That is error.
In People v. Thomas (1999) 21 Cal.4th 1122, 988 P.2d 563, our Supreme Court held that defendants subject to the Three Strikes law, whose current offense is not a violent felony, are eligible for section 4019 presentence credits of two days earned for six days served, rather than 20 percent. Section 1170.12, subdivision (a)(5) limits only postsentence conduct credits for nonviolent strike defendants, not presentence conduct credit. (Id. at p. 1125.)
We shall modify the award of credit. The probation report and both parties agree that defendant served 246 actual days. Under the law, defendant is entitled to 122 days conduct credit under section 4019.
Because the credit award is an unauthorized sentence, we shall correct it in the interest of judicial economy. Any party aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgment is modified to reflect presentence credit of 246 actual days and 122 days of local conduct credit under Penal Code section 4019 for a total credit of 368 days. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections.
As modified, the judgment is affirmed.
We concur: NICHOLSON, J., HULL, J.