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People v. Ketchens

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Mar 15, 2012
E052166 (Cal. Ct. App. Mar. 15, 2012)

Opinion

E052166 Super.Ct.No. BLF004760

03-15-2012

THE PEOPLE, Plaintiff and Respondent, v. STEVEN KETCHENS, Defendant and Appellant.

Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Scott C. Taylor and Nguyen Tran, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the Superior Court of Riverside County. John G. Evans, Judge. Affirmed.

Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Scott C. Taylor and Nguyen Tran, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Steven Ketchens of possession of a controlled substance in prison (Pen. Code, § 4573.6), possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of cocaine for sale (Health & Saf. Code, § 11351), and possession of marijuana for sale (Health & Saf. Code, § 11359). The trial court found that defendant had five strike priors. (Pen. Code, § 667, subds. (c) & (e)(2)(A).) After the trial court denied defendant's Romero motion requesting the dismissal of his strike prior convictions, defendant was sentenced to concurrent 25-year-to-life sentences for each count. Defendant contends the trial court abused its discretion by refusing to dismiss all but one of his strike priors. We affirm.

BACKGROUND

Criminal History

On May 9, 2000, defendant was convicted of misdemeanor contempt. (Pen. Code, § 166.) On August 26, 2002, defendant was convicted of driving without a license. (Veh. Code, § 12500, subd. (a).) On August 28, 2002, defendant was convicted of driving with a suspended or revoked license. (Veh. Code, § 14601.1, subd. (a).)

On March 25, 2004, defendant was convicted of five counts of robbery (Pen. Code, § 211) and was found, as to each count, to have personally used a firearm (Pen. Code, § 12022.53, subd. (b)). The convictions stemmed from the armed robbery of five victims in a fast food restaurant and were the basis of the strike priors. Defendant was still on probation for his 2002 convictions.

Present Offense

On June 3, 2007, defendant, a prison inmate, was found in possession of marijuana, cocaine, and methamphetamine while processing out of a family visitation unit. In prison, the marijuana could have sold for as much as $8,900. The cocaine and methamphetamine could each sell for an amount close to $3,000. Outside of prison, the drugs would have been worth much less. Nonetheless, defendant told an investigator that he had found the drugs and was going to give them to his wife so his nephew could sell them outside of prison.

The Motion

On July 21, 2010, defendant's trial counsel sought "a chambers conference" on a Romero motion. The trial court would not discuss the matter but instead sent the matter out for trial. In so doing, the trial court complained about the lack of a written motion despite numerous continuances and delays in the case that had provided counsel with the time necessary to prepare the motion. The same day, a written Romero motion was filed. The next day, the People filed their opposition.

On July 28, 2010, after defendant had been convicted, defendant's trial counsel stated he wanted to "amend the Romero motion with respect to letters of reference and also to update [defendant's] progress on his schooling that he is doing in prison." Accordingly, the trial court set a sentencing date and established a briefing schedule. However, defendant did not file an amended motion. The People filed a supplement to their opposition the day before the sentencing hearing rather than two weeks earlier as required by the briefing schedule.

Defendant's motion contended he was outside the spirit of the three strikes law by asserting, without explanation, that: the current offense was not as serious as the charged crime implied; the current offense was not a serious or violent felony; punishment under the three strikes law would be disproportionate to the severity of the offense; defendant was not a danger to others; and defendant showed remorse for his criminal conduct. The motion also asserted defendant had a short criminal history and recited defendant's three relatively minor misdemeanors and the 2004 robbery incident. The motion then had an extensive recitation of defendant's difficult childhood and adolescence in a rough neighborhood, which lead to the 2004 armed robbery following a period of financial hardship. The motion then noted that defendant had gotten married two years prior, was still in touch with several relatives, was working on his associates degree, wanted to pursue a career in construction, and hoped to have children.

The People's opposition inaccurately asserted that defendant was involved in a second armed robbery committed by his 2004 codefendants, which occurred prior to the incident underlying his 2004 convictions. It also challenged the assertion that defendant's wife was a good influence by presuming he resided with her when he committed his prior criminal acts, and by stating that she "was his un-charged co-conspirator in bringing the drugs to him in prison during a conjugal visit." It stated that defendant had been identified as a gang member and asserted that, while drug dealing was not a violent offense, it was an offense "that frequently leads to violence and that has serious negative consequences for other members of society." It also asserted that defendant's criminal behavior in prison "belies any attempt to present himself as a changed or rehabilitated man." The People's supplemental opposition repeated their contentions and included as exhibits an unpublished Court of Appeal opinion reciting the facts of the 2004 armed robbery, and a prison segregation profile identifying defendant as a gang member.

The probation report stated that defendant had earned his high school equivalency while incarcerated and would be completing his associates degree the following spring. Defendant expressed remorse at committing the offense because he had let his wife down. He also stated he had learned from the experience and had already been punished by the prison authorities. "The institution has taken away my visits for three years, I can't have any family visits, I've been given additional points and I spent one year in 'the hole.' " The probation officer stated that "[t]he sale of controlled substances throughout the institutional system further contributes to potential safety risks for inmates, institutional employees and the greater public."

At the sentencing hearing, defendant's trial counsel stated, "while my client does have several strikes, all those have happened in one incident and on the same day. That's the only serious offense that he has. [¶] His other adult offenses . . . are basically minor traffic violations." He then restated defendant's impending completion of his associates degree.

The People then repeated their inaccurate understanding that defendant had been implicated in a second armed robbery of a fast food restaurant committed by his codefendants on the same date as the 2004 robbery underlying his strike convictions. The People also asserted that the robberies indicated "an extensive criminal activity, and there is no indication that this is something unusual for the defendant . . . something inconsistent with his conduct. We have the fact that in prison he is, one, identified as a gang member and, two, is bringing drugs, which is the primary activity of gangs in prison. There's an indication that criminal activity is a continuing activity on his part.

Therefore, he is a person within the—not only the spirit but the letter of the three strikes statute. The fact that he has taken some classes, and whatever his grades were, he's passed those classes, although, in one sense a good thing also indicate that he's . . . intelligent [enough] to realize what he's doing is criminal, and it was purposeful conduct. The fact that he's a well-educated criminal [d]oesn't make him any less a criminal or, I'm sorry, subject to the mandate of the three strikes law."

Defendant then addressed the trial court: "I'm not a rapist or child molester or murder—never murdered anybody, but I have learned from my mistakes. I'll continue to grow from them. I'm asking if you['ll] give me a second chance so I can prove that, you know, that I have changed."

The trial court ruled: "The Court has read and considered the Romero motion and also the opposition to that motion. And is not going to exercise its discretion and grant the motion. [¶] What disturbs the Court about this case is not . . . only were you in prison at the time that you committed these acts, [defendant], but you got married in prison and then involved your wife in those acts as well. The Court does find that the offenses are very serious, maybe not titled serious under the Penal Code, but you're talking about selling controlled substances in prison, which may or may not [be] directly related to gang activity. It causes a lot of problems for a person in society inside prison, outside prison and including those who run the prison and for that reason, I'm going to decline to exercise my discretion and the Romero motion is denied."

DISCUSSION

Defendant contends the trial court abused its discretion by failing to dismiss all but one of his strike priors. We disagree.

"[A] court's failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Defendant has the burden of demonstrating an abuse of discretion and, in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) Even if we might have ruled differently in the first instance, we will affirm the trial court's ruling as long as the record shows the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (Id. at p. 378.) An exercise of discretion to strike a prior conviction pursuant to Penal Code section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant's constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts "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.) There is a " 'strong presumption' [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation." (In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be " 'extraordinary' " for a career criminal to be deemed to fall outside the scheme of the three strikes law. (Carmony, at p. 378.)

The trial court's review of the motion, oppositions, and probation report affirmatively indicates that it had reviewed defendant's present felony, prior strikes, background, character, and prospects. Thus, there is no indication that the trial court failed to consider any relevant information before it that would render defendant's circumstances extraordinary. Defendant understandably emphasizes that all of his strikes arose from a single incident, that his present offenses were not serious and carried comparatively low sentencing ranges, and that his educational efforts show "the desire and ability to obtain legitimate employment." However, we do not reweigh the factors. (See Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, defendant has failed to overcome the " 'strong presumption' [citation] that the trial judge properly exercised his discretion." (In re Large, supra, 41 Cal.4th at p. 551.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.
We concur:

MILLER

J.

CODRINGTON

J.

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


Summaries of

People v. Ketchens

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Mar 15, 2012
E052166 (Cal. Ct. App. Mar. 15, 2012)
Case details for

People v. Ketchens

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVEN KETCHENS, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Mar 15, 2012

Citations

E052166 (Cal. Ct. App. Mar. 15, 2012)