Opinion
G044607 Super. Ct. No. 08WF1408
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. TRACY ALAN MALONE, Defendant and Appellant.
Theresa Osterman Stevenson, 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, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed.
Theresa Osterman Stevenson, 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, Lilia E. Garcia and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Tracy Alan Malone guilty of transportation of a controlled substance as charged in count one of the information and guilty of possession of paraphernalia as charged in count three. He was found not guilty of the offense charged in count two, violation of Health and Safety Code section 11351, but guilty of the lesser included offense of violation of Health and Safety Code section 11350. The court sentenced him to prison for 13 years.
The court did not err when it declined to suppress evidence against defendant under Penal Code section 1538.5. Nor did the court err when it denied defendant's request to represent himself because the request was made after the jury had been selected and the defendant informed the court he was not prepared to represent himself unless the trial was continued. The court did not abuse its discretion when it struck only one and declined to strike both of defendant's prior serious strikes for purposes of the "Three Strikes" law. We affirm.
I
FACTS
On July 21, 2008, on Seal Beach Boulevard in Sunset Beach at approximately 11:05 a.m., a police officer "observed a vehicle that was disabled, or was stopped in the number 1 lane with its flashers on, there is a female standing next to it." The woman's name was Nicole Skyberg. As the officer spoke with Skyberg, defendant approached the car with a gas can. After he put the gas in the car, defendant drove off with Skyberg in the passenger seat. The officer observed defendant had his hazard lights on as he drove.
The officer followed defendant and ran a records check at the same time. Defendant turned into a gas station. When the officer approached the vehicle, he spoke with Skyberg as defendant was inside paying for the gas. The officer described his observations of Skyberg, which he said indicated possible "C.N.S. stimulant use." "She had uncontrolled fidgeting, involuntary movements, she couldn't remain still. You know, playing with her hair, picking at her skin." The officer asked defendant to park the car in the gas station's lot. Defendant was asked "to exit the vehicle and just to sit on the bumper." The officer explained why he asked defendant to exit the car: "Just so that I can maintain, for my safety purposes so I can kind of see him, have a visual on him while I am still talking to the other person."
After another officer arrived, defendant was searched. Defendant was then asked to sit in the backseat of the patrol car. The officer explained that request: "It is to prevent, you know, any possible escape or advancement on us while maybe we are giving attention somewhere else. It is a safety issue for us, it is safer, I should say, for somebody to be seated in the back seat where we know we are less likely to be harmed by them, or they may try to escape or something along those lines." Defendant, who had "uncontrolled eyelid tremors," was told he was not under arrest and was not handcuffed. The officer then turned his attention back to Skyberg.
The officer testified: "Prior to the start of every [shift] I conduct a thorough search of the entire vehicle, including the back seat, and remove the back lower portion of the seat, and make sure there is no contraband or anything illegal possibly left behind from the previous shift, or any other person who might have been seated back there." Underneath the backseat of the patrol car, there is a rubber sound deadener mat.
After the officer formed the opinion Skyberg was under the influence of a central nervous system stimulant, he placed Skyberg in the backseat of the other patrol car. Defendant informed the officers the car he had been driving was his, and a records check indicated Tracy Alan Malone was the registered owner.
Defendant's car was searched. Under the passenger seat, police found a glass smoking pipe with a wire filter in it. It was broken on both ends and "looked like it had burn marks" and contained remnants of a substance. The officer said it was a pipe used for smoking crack cocaine. Also found was a plastic case containing additional wire element filters. In the trunk of defendant's car, police found a green plastic container containing a usable amount of marijuana and a clear plastic bag containing a white substance. A presumptive test showed the white substance was cocaine. It was also a usable amount.
The officer then handcuffed defendant, while he was still in the backseat of the patrol car. While doing so, the officer observed a white sock resting on the seats where defendant had been sitting. Defendant was still wearing two socks.
Skyberg was placed in the same backseat with defendant and the two were taken to jail. After the two were removed from the patrol car, police found a white powdery substance "directly underneath the area where Mr. Malone had been seated" and a crack cocaine glass smoking pipe "in the doorjamb right next to where the defendant was sitting." Police collected the powder in an envelope; a presumptive test showed it to be cocaine. Later testing confirmed it was cocaine; it weighed 46 milligrams. Defendant had $802 on his person.
A jail deputy who is a drug recognition expert, screened defendant for alcohol and found "zero percent" which means "the device did not detect the presence of alcohol on his breath." A series of four tests involving multi-tasking were administered to defendant. The results showed defendant's "internal clock [was] sped up." He had eyelid tremors. Defendant also "missed touching heel to toe on all nine of his steps." Defendant was then asked to walk back nine steps, but walked only eight steps instead. Six times defendant tried to touch the tip of his nose as directed; he failed to touch it all six times. A pupillometer measured his pupils to be abnormal in size. His heart rate measured high three times. His blood pressure was "160 over 110." The drug recognition expect opined: "Based on the totality of the circumstances, my opinion was he was under the influence of a C.N.S. central nervous system stimulant."
The deputy then requested defendant's blood be drawn. Defendant's blood was screened for "cocaine and its metabolite, methamphetamine and its related family compounds, and opiates." The test results showed that "cocaine and its metabolite benzoylecgonine were detected."
At trial, an expert testified that testing confirmed the substance found in the white baggie was cocaine; it weighed 24.6 grams or "just under an ounce." An "average dose of cocaine is about a tenth of a gram, so in one gram would be about 10 doses. So based upon my training and experience . . . it is a lot of cocaine to possess." The value of an ounce of cocaine is between $400 and $800, but "if you are a gram dealer and you are selling grams, the average price of a gram is anywhere between 40 and $80 a gram. So if you break that down, say you are selling it for 50 bucks a gram, you are going to make over $1,200 on that ounce, which is almost one and a half percent more profit. That's why a dealer will buy it in bulk like that, sell it and make a profit."
II
DISCUSSION
Motion to Suppress
Defendant contends "the trial court committed reversible error in denying [defendant's] motion to suppress evidence seized from his vehicle and at the time of his arrest." The Attorney General contends the court properly denied the motion, agreeing that, while defendant gave the officer permission to retrieve the registration from the center console, defendant did not consent to a general search of the vehicle.
Officer's Testimony at Motion
The arresting officer testified at the pretrial hearing regarding numerous factors the jury did not hear during trial:
• When defendant failed to turn off the hazard lights, it was significant since the vehicle was no longer disabled and using the hazard lights unnecessarily is a violation of the Vehicle Code.
• The records check indicated Skyberg "was listed as a critical or endangered missing person."
• The officer wanted to speak with Skyberg "to make sure she was okay" and "that she was actually there on her own free will."
• The records check revealed defendant "was a registered sex offender and had some kind of strange notation indicating that he was currently incarcerated in state prison" and the officer suspected he was an escapee.
• Defendant consented to the search of his person.
• Skyberg told the officer she had not seen her mother in over a month and was not sure why she had been listed as an endangered missing person.
• The officer contacted Skyberg's mother "to get a better feel of why her mother reported her missing."
• Skyberg told the officer she had taken Vicodin for a back condition.
• Skyberg had a burn mark on her right thumb.
• When the officer asked Skyberg whether she had used an illegal substance, "she admitted that she has used crack cocaine."
• The officer asked for defendant's permission to retrieve the registration from the vehicle.
• Defendant gave the officer permission to retrieve the registration and said it was in the center console. The registration was not in the center console, so the officer looked in the glove box and then the passenger floorboard area.
• When the officer was asked whether he was looking for anything in addition to the registration, he responded: "I was also looking for any evidence of drug use or drug paraphernalia as a result of Ms. Skyberg's outward signs of being under the influence." That was when the officer found the clear glass smoking pipe.
• After he found the pipe, the officer continued to search the rest of the vehicle.
• After the officer found the baggie containing a white substance in the trunk,
he showed it to Skyberg and asked her what it was. "She indicated that it was cocaine," and said she had seen defendant holding the green container the previous day.
• After both were arrested, Skyberg "indicated that she had used cocaine several times within the last few days. She last smoked it yesterday . . . and she had been staying with" defendant.
• Long Beach Police Department erroneously entered information into the computer about defendant's prison status, and at some point during the stop, the officer heard back from the Department of Justice that defendant was not an escapee.
Defendant's Testimony at Motion
Defendant testified at the pretrial motion to suppress evidence. He said after he put the can of gas in the car, he left the hazard lights on because there "was still a kind of sputtering." When the officer approached at the gas station, the officer asked him whether he had ever been arrested, and defendant said he was a registered sex offender and had been arrested for transportation of marijuana. Defendant gave the officer his parole discharge card and his "up-to-date sex registration card."
The officer asked defendant to step out of the car and "said can I search? I said, yes." The officer then patted him down and told him to stand in front of the patrol car, and then told him to have a seat in the patrol car while the officer spoke with Skyberg.
The officer asked defendant where he usually keeps his registration. According to defendant, the following happened: "I said center [console]. He asked me if I had anything illegal in the car. I said no. He said can I search? I said no. He slammed the door. He walked away, went over there to the car."
On cross-examination, the prosecutor had only one question: "Just to clarify when the officer asked you for your vehicle registration, you were not able to provide it; is that correct?" Defendant responded: "No."
The Court's Ruling
The court commented: "These are very unique facts." After giving a lengthy statement of reasons, the court denied the motion to suppress evidence.
"The Fourth Amendment guarantees '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of this provision. [Citations.] An automobile stop is thus subject to the constitutional imperative that it not be 'unreasonable' under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." (Whren v. U.S. (1996) 517 U.S. 806, 809-810.) "[I]n determining whether the seizure and search were 'unreasonable' our inquiry is a dual one—whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." (Terry v. Ohio (1968) 392 U.S. 1, 19-20.)
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.)
Here the officer had a reasonable suspicion defendant violated the Vehicle Code by leaving his hazard lights on after when the car was no longer disabled. But more than a traffic violation was involved. The officer received information Skyberg was an endangered missing person; he was required to investigate, so he was justified in detaining defendant until he sorted out the situation. "Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." (Cady v. Dombrowski (1973) 413 U.S. 433, 441.)
It is not clear from the record of the motion hearing how long the stop lasted. But it is clear that sometime either before or during the stop, the officer learned disturbing information about defendant. Not only was he a registered sex offender in the company of someone who had been reported missing and endangered, the officer suspected he might be a prison escapee. During the stop, the officer learned Skyberg was voluntarily with defendant, and that defendant's sex registration was up to date. At some point, the officer's inquiry from the Department of Justice was answered to the effect that defendant was not an escapee. Thus, in addition to investigating indications of drug use by Skyberg and defendant, the officer needed sufficient time to speak with Skyberg, speak with Skyberg's mother, speak with defendant and twice speak with the Department of Justice. Nothing in the record before us indicates the stop was longer than necessary for investigative purposes.
With regard to the search of the vehicle, defendant does not dispute he gave the officer permission to go into the car to look in the center console for his registration. The officer did just that, but the registration was not where defendant said it was. It does not seem unreasonable for the officer to then look in the glove box and around the seat for the vehicle registration. An officer is "entitled to enter [a] vehicle to conduct a limited search for both registration and identification documents." (In re Arthur D. (2002) 27 Cal.4th 60, 78.) Additionally, Skyberg demonstrated strong indications she was under the influence of drugs, so the officer had probable cause to believe drugs were in the vehicle. Under such circumstances, a vehicle may be searched without a warrant. (California v. Avecedo (1991) 500 U.S. 565, 569; People v. Dumas (1973) 9 Cal.3d 871, 885.) Also, since the officer had probable cause to arrest Skyberg, he was justified in searching the vehicle as a search incident to arrest. (United States v. Robinson (1973) 414 U.S. 218, 224.) Finally, the contraband would have been inevitably discovered anyway. Defendant was properly placed in the police car for officer safety while the officer conducted his investigation. When defendant got out of the vehicle, he left drugs behind, so the officer would have then been justified in searching defendant's car for additional drugs. The inevitable discovery doctrine "permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality. [Citation.]" (Robey v. Superior Court (2011) 200 Cal.App.4th 1, 8.)
The trial judge was a master of understatement when he said there are unique facts here. After reviewing them, we conclude the court properly denied defendant's motion to suppress evidence.
Request to Replace Appointed Counsel
Defendant next argues "the trial court violated [his] constitutional right to counsel when it denied his request to retain counsel of his choosing." During the course of the proceedings, approximately 10 lawyers represented and made appearances for defendant. Ultimately, he was represented by conflict counsel at the motion and for trial.
After the motion to suppress was denied on October 15, 2010, defendant rejected the offer of striking one strike and imposing a state prison term of 10 years, and the trial date of October 21 was ordered to remain. On October 21, both counsel appeared for trial but defendant did not. Since November 1 was the "last day for jury trial," all parties were placed on one-hour call. On October 25, the case was assigned to a court for a jury trial, and the trial judge ordered that trial would commence on October 26 at 8:30 a.m.
On the morning of trial, defendant rambled on and complained about not being satisfied with his situation, wanting a continuance and being dissatisfied with his lawyer. The court conducted a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) and denied the motion. Jury selection commenced.
During the afternoon session, Attorney Joe Weimortz arrived and asked to address the court. Weimortz informed the court he had spoken with defendant's mother, who had unsuccessfully tried to contact his office the previous Thursday evening, (October 26, 2010 was a Tuesday) and she was willing to pay the legal bill. He said he would represent defendant if the court would grant a continuance but "we would not come on the case just to do a trial that we are not prepared for because it would be a waste of her money."
The court ruled: "I have to deny your request because it is untimely. The problem is that we are looking at a case that's over two years old. We have done all the motions on the case. The matter was set for trial and both sides answered ready. And we are already well into the jury selection process. [^] I don't find that at this stage of the proceedings the motion to substitute counsel is timely. So I am going to have to deny your request, counsel. [^{] If you were in a different situation where you were prepared to say, 'We want to substitute in and we are ready to proceed with trial and proceed with jury selection,' the court's ruling might be different. But, unfortunately, we are just at a stage of the proceeding where the request is untimely."
Later that afternoon, jury selection completed and the panel was sworn in. The following morning, October 27, defendant stated to the court: "I feel like I haven't been given adequate time to participate in my defense, even the — time to build, to firm up my defense. I think I would like to represent myself. I haven't had the chance to go over anything with Mr. Grant as far as the case."
The court asked defendant: Are you ready to go forward with this case with this jury?" Defendant responded: "No, I am going to need some time." Defendant then asked the court to continue the case.
A discussion ensued between the court and defendant, during which defendant stated he didn't "even know what charges, what evidence that it is that is against" him. The court stated: "Mr. Malone, I reject that representation as well. You sat through the 1538 motion, you heard all of the evidence and the testimony from the officer, and your attorney's effort to suppress that evidence. So I reject your representation to me that you don't know what evidence is being offered against you, when you heard the majority of the evidence regarding the circumstances of the search and the controlled substances and paraphernalia that were recovered."
The court tried to question defendant about why his requests to discharge the jury and continue the trial so he could prepare to represent himself were being brought after the court already spent time selecting the jury. Defendant repeated that he was dissatisfied with his lawyer.
The court asked defendant about his education and defendant said he attended Long Beach City College "one or two years." The court asked what he studied and defendant said: "Just basic classes, wasn't no law or anything." Defendant told the court he had experience as a pipe welder, pipe fitter and doing construction work. Defendant said he never took any legal classes, had no legal experience, never sat through a trial, never questioned a witness, had no experience with the Evidence Code or court rules. Defendant said he was 50 years old and has had a drug issue on and off for the previous 25 years.
The prosecutor told the court she had two witnesses in the hallway and three on call and that she further objected to any continuance because: "Jeopardy has attached at this time, the jury has been sworn, it does not appear at this time to manifest a mistrial, and this is just a stall tactic on the defendant's part. As the court knows since yesterday, the defendant has been seeking one way or another a continuance of this trial."
The court invited argument from the defendant, but he had nothing more to say. The court stated: "Mr. Malone, I am going to deny your request to relieve Mr. Grant and proceed on your own, and I will give you my reasons. [¶] First of all, I must tell you that I find the quality of representation that you have received from Mr. Grant has been excellent. [¶] . . . [¶] I also find that your history as it relates to this case with respect to change of counsel, complaints about Mr. Grant, now a request to act as your own attorney and bring in somebody to advise you, given the fact that we are well over two years into the case, this appears to the court to be not necessarily a bona fide request to act as your own attorney, but another effort on your part to delay the proceedings well beyond the two years three months since the matter was first charged. [¶] In addition, we are at a stage in the proceedings, as Ms. Hayashida said, that jeopardy has attached. We are ready to start the evidence phase of the case, it is not like a situation where you are telling me that you are ready to proceed on your own, you are telling me that you are not only not ready to proceed on your own, but that you need a continuance, we would need to discharge this jury. I would have to find good cause to discharge the jury, and that even if you were to proceed on your own, you would want to do that with the assistance of other counsel, which is a further indication to me that you are not really asking to go pro per, you are not really asking to represent yourself, what you are really trying to do, you are trying to fire Mr. Grant, get another continuance on the case, and then bring in new counsel. [¶] And this frankly appears to the court to be a surreptitious effort on your part to accomplish today what you were not able to accomplish yesterday, which is bringing in private counsel. [¶] In addition, I don't find that based on the history that you have given me, your background, your prior history of drug use, your other utter lack of any experience with the criminal justice system as it relates to presenting a trial, or any even awareness of the rules of evidence or the rules of procedure, I don't find that there is anything about that that would suggest to the court that you are able to represent yourself, even if you were given a continuance. [¶] But even if that were the case, even if you could make yourself ready to represent yourself at some stage, I find that the request frankly is untimely, because of the stage of the proceedings that we are at. It would require the discharge of a sworn jury. It would continue the case, in all likelihood, another at least couple of months while you attempt to prepare yourself, and you by your own request suggest to me that it would necessitate your counseling with someone else to assist you, because you are unable to truly proceed on your own. [¶] So for all those reasons I am going to deny your request."
"[T]he Sixth Amendment right to the assistance of counsel implicitly embodies a 'correlative right to dispense with a lawyer's help.'" (Faretta v. California (1975) 422 U.S. 806, 814.) While the right to choose one's attorney is a component of the right to counsel under the Sixth Amendment, "this right is not absolute, and the court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is 'unjustifiably dilatory or . . . arbitrarily desires substitute counsel at the time of trial.' [Citation.]" (People v. Leonard(2000) 78 Cal.App.4th 776, 784.) The United States Supreme Court has also "recognized a trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness [citation], and against the demands of its calendar [citation]." (U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140, 152.)
Here trial was underway. The jury was sworn. Witnesses were in the hallway. Defendant was not ready to proceed. No good reason for delay was provided. Under the circumstances in this record, we cannot find defendant was denied his rights under the Sixth Amendment or that the court abused its discretion when defendant's request to continue the trial so he could prepare to represent himself was denied.
Alleged Sentencing Error
Defendant next argues the trial court "abused its discretion in refusing to strike both of [his] prior[s] for purposes of sentencing." The Attorney General states: "Here, there was nothing extraordinary about [defendant's] circumstances that points to the trial court's ruling as arbitrary or irrational. The trial court found true that [defendant] had two prior 'strike' convictions: a 1992 conviction for residential burglary, and a 1984 conviction for a felony violation of Penal Code section 220. At the sentencing hearing, the trial court struck the 1984 prior 'strike' conviction."
The probation report states defendant was arrested in 1979 after a car was stripped and officers observed him leaving the location while throwing a screwdriver to the ground. In 1980, he was convicted of possession of a controlled substance. In 1984, he was convicted of violating Penal Code section 220 when he "forced a woman to accompany him to this residence, and he attempted to rape her." He suffered two other convictions in 1990 when patrol officers observed him in the driver's seat of a stolen car, and another involving drugs. In 1991, he was convicted on a drug violation and a domestic violence charge. In 1992, there was a burglary conviction. In 1993, he pled guilty to two drug charges involving his selling rock cocaine to an undercover officer. In 1998, he was convicted of two more drug charges involving possession of drugs for sale.
The court conducted a lengthy sentencing hearing. In its comments, the court stated: "I have grown to understand better the dilemma that people such as Mr. Malone finds himself in. You have spent all your adult life in and out of the criminal justice system. Generally things haven't gone your way. It's frustrating and, you know, every time you go to court you're fighting, not just for your life but for your future. Well, I guess, for your life when you are looking at three strikes. [¶] . . . [¶] As to the Romero motion [People v. Superior Court (Romero) (1996) 13 Cal.4th 497], I have considered carefully the facts of the case, I have read and considered the defendant's prior criminal record and the factors set forth in [People v. Superior Court (Romero)] and I do find as to the defense's request to strike one of the strikes, the older strike, which was from 1984 I find it to be well taken. I'm going to give you my reasons. [¶] First of all, the current felony for which the defendant stands convicted is neither a serious or a violent felony. Both of the prior strikes, but in particular the 1984 strike, neither one of them is recent and the current crime in addition to not being serious or violent is not a crime against persons. So I do find that the defense's motion as to the older strike from 1984 is well taken. The court does exercise its discretion under 1385 of the Penal Code pursuant to [People v. Superior Court (Romero)] and I do strike that strike for purposes of sentencing."
Penal Code section 1385, subdivision (a) states, "The judge or magistrate may, either of his or her own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. . . ." While the statute allows for a motion to be made only by the prosecutor or on the courts own motion, a defendant may "invite" the court to exercise its discretion to strike a prior felony. The court's ruling on such a motion is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) A trial court abuses its discretion only if its ruling is "so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
The Three Strikes scheme is intended to limit courts' discretion in sentencing repeat offenders. There exists no discretionary sentencing choice, unless the sentencing court determines that an exception should be made because defendant is deemed to fall outside the spirit of the Three Strikes law. This analysis includes considering remoteness and the nonviolent nature of prior offenses. (See People v. Bishop (1997) 56 Cal.App.4th 1245.) When deciding whether to strike a prior, "weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of the his background, character, and prospects. [Citation.]" (People v. Williams (1998) 17 Cal.4th 148, 161.)
State legislatures enacting Three Strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional punishment approaches, must be isolated from society to protect the public safety. (Ewing v. California (2003) 538 U.S. 11, 24.) "In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the 'triggering' offense: '[I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.' [Citations.]" (Id. at p. 29.)
The trial court considered the surrounding circumstances and carefully weighed them in making its decision. Under the circumstances we find in this record, we cannot find the court abused its discretion.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.