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People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Mar 17, 2017
F073319 (Cal. Ct. App. Mar. 17, 2017)

Opinion

F073319

03-17-2017

THE PEOPLE, Plaintiff and Respondent, v. DAVID JOHN HERNANDEZ, Defendant and Appellant.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF159945A)

OPINION

THE COURT APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

Before Levy, Acting P.J., Kane, J. and Detjen, J.

-ooOoo-

Appellant David John Hernandez appeals from the sentence imposed for convictions of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), possessing methamphetamine for sale (§ 11378) and other related offenses. Appellant alleges the trial court wrongly refused to strike a prior conviction. Appellant further requests we review the imposition of certain fines. For the reasons set forth below, we affirm.

All statutory references are to the Health and Safety Code unless otherwise noted.

FACTUAL AND PROCEDURAL BACKGROUND

On April 16, 2015, a police officer contacted appellant as he was walking along the street because appellant had a limp and appeared to be in pain. In the course of the officer determining whether appellant needed assistance, appellant told the officer he had a gun. The weapon was recovered and revealed to be an air gun. A subsequent search of appellant's shoe revealed approximately 29.4 grams of methamphetamine, allegedly enough for at least 294 individual uses of the drug.

Appellant was charged with, and ultimately convicted by a jury of, transporting methamphetamine and possessing methamphetamine for sale, along with two related misdemeanors. In separate proceedings, the court found true several allegations concerning sentence enhancements, including a prior strike conviction and multiple prior prison sentences.

Through these proceedings, evidence was introduced showing appellant had a long and extensive history of drug use. Evidence also showed appellant's prior strike conviction occurred in 2003, for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and was followed by multiple additional convictions for crimes such as unlawful possession of narcotics (§ 11377) in 2005, 2007, and 2013, driving while privileges have been revoked (Veh. Code, § 14601.1, subd. (a)) in 2004 and 2006, theft or unlawful taking of a vehicle (Veh. Code, § 10851) in 2006, and receipt of a stolen vehicle (Pen. Code, § 496d) in 2011.

Prior to sentencing, appellant moved to have his prior prison term enhancements struck, and moved under Romero to have his prior strike conviction struck. With respect to the Romero motion, appellant's counsel argued the case did not warrant imposing an increased sentence because of appellant's well-documented drug addiction problems. Counsel argued appellant's conduct and record were consistent with a drug user, that the presence of an air gun in this case was treated by all as insignificant, and that there was no serious felony aspect to appellant's conduct. The trial court granted appellant's motion to strike his prior prison term enhancements, but denied his Romero motion. In doing so, the trial court recognized "there is likely some merit to defendant's argument about the extent of his addiction," but felt appellant was "within the spirit" of the law in part because there was "a serious pattern of criminality that continued unabated from the time of the strike prior up to and including the time of this offense."

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). --------

Following these rulings, the trial court sentenced appellant to an eight-year term, consisting of an upper term of four years for the violation of section 11379, subdivision (a), doubled for the prior strike. As part of the imposition of sentence, the trial court indicated it would order appellant to "pay a fee of $50, pursuant to Section 11372.5 of the Health and Safety Code, plus a $155 penalty assessment, and order him to pay [a] fee of $100, pursuant to Section 11372.7 of the Health and Safety Code, plus a $310 penalty assessment ...." No objection was raised to the imposition of these fees.

This appeal timely followed.

DISCUSSION

Denial of Appellant's Romero Motion

Appellant contends the trial court abused its discretion when denying his Romero motion because his conduct was the result of acknowledged drug abuse, appellant's prior strike was remote, and his current offense was non-violent.

Standard of Review and Applicable Law

In Romero, the California Supreme Court held that trial courts have discretion to dismiss or strike allegations of prior felony convictions. (Romero, supra, 13 Cal.4th at pp. 529-530.) "[I]n 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 [, subdivision] (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 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 analysis whether an offender may be deemed outside the spirit of the law is a stringent one. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) And there is a strong presumption that any sentence that conforms to the three strikes law's sentencing scheme is rational and proper. (Id. at p. 378.) "Because the circumstances must be 'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], 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.)

We review the trial court's decision for an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) An abuse of discretion is not shown merely because reasonable people might disagree about whether to strike a prior conviction. Where the record is silent, or where it " 'demonstrates that the trial court 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.' " (Id. at p. 378.)

The Trial Court Did Not Abuse Its Discretion

In this case, the crux of appellant's argument for striking his prior conviction was the claim that the whole of appellant's criminal history could be explained by his untreated drug addiction. However, in this case the court was presented with evidence of an extensive criminal history spanning more than a decade, which suggested appellant had progressed from a drug user to a drug dealer. This history and its parallel to his past drug use provides a framework for the court to conclude appellant's background, character, and prospects placed appellant within the spirit of the three strikes law. We do not agree with appellant's argument that no reasonable jurist could reach such a conclusion. Being a drug addict does not automatically take someone out of the spirit of the three strikes law and appellant's continued criminality, the lack of substantial evidence showing attempts to overcome addiction, and the evidence of escalation from drug use to selling drugs are sufficient to support the conclusion appellant's propensity for recidivism fell within the spirit of the three strikes law. Imposition of Penalty Assessments

Appellant contends the trial court wrongly imposed a penalty assessment on two fees ordered as part of appellant's sentence. Specifically, appellant contends it was improper for the trial court to impose a $155 penalty assessment on a $50 lab fee ordered pursuant to section 11372.5 and a $310 penalty assessment on a $100 drug program fee ordered pursuant to section 11372.7.

Standard of Review and Applicable Law

Questions of statutory interpretation are reviewed de novo. (See People v. Moore (2015) 236 Cal.App.4th Supp. 10, 14 (Moore).)

"Sections 11372.5 and 11372.7 each require the court to impose specified fees on defendants convicted of certain specified drug offenses. Each such fee is to be collected by the local county and used under section 11372.5, subdivision (b) to offset the administrative costs of laboratory testing of suspected drug samples, and under section 11372.7, subdivision (c) to fund local drug abuse treatment and prevention programs." (Moore, supra, 236 Cal.App.4th at p. Supp. 15, fn. omitted.) In addition, under statutes such as Penal Code section 1464 and Government Code section 76000, the court is required to impose an additional monetary penalty "upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses." (See Pen. Code, § 1464; Gov. Code, § 76000.) These additional fines are referred to as penalty assessments.

The Penalty Assessments Were Properly Imposed

Relying on Moore and a purported distinction between the contested fees and the imposition of a penalty on any fines imposed, appellant argues the "fees" imposed under sections 11372.5 and 11372.7 are only properly ordered after any required penalty assessments are added to the "total fine" imposed. Or, in other words, that penalty assessments are not included on these types of fees. We do not agree.

Moore was published by the Appellate Division of the Nevada County Superior Court because, as Moore itself recognized, a split of authority had arisen on this issue, which the Third District Court of Appeal had not ruled upon. (Moore, supra, 236 Cal.App.4th at pp. Supp. 15-16.) Fatal to appellant's argument here, one of the cases in that split of authority comes from this court. In People v. Sierra (1995) 37 Cal.App.4th 1690, 1696 this court ruled that penalty assessments are properly applied to a fee imposed under section 11372.7 because the fee is, in actuality, a punitive fine in nature. We have reviewed Sierra and see no reason to depart from its analysis here. Moreover, in light of the similar nature of the fee imposed under section 11372.5, we conclude our analysis also applies to that statute. (See People v. Sharret (2011) 191 Cal.App.4th 859, 869-870 [staying imposition of fee under section 11372.5 related to stayed charge because it was a punitive fine in nature].) As the fees are punitive fines in nature, the trial court was required to impose the statutory penalty assessments.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Mar 17, 2017
F073319 (Cal. Ct. App. Mar. 17, 2017)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID JOHN HERNANDEZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Mar 17, 2017

Citations

F073319 (Cal. Ct. App. Mar. 17, 2017)