PEOPLE v. PEARSALL

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Lennox Renay PEARSALL, Defendant and Appellant.

No. B096086.

Decided: August 15, 1996

Jill M. Bojarski, under appointment by the Court of Appeal, Newport Beach, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Jaime L. Fuster, and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

In this “three strikes” case (Pen.Code, §§ 667, subds.(b)-(i);  1170.12, subds. (a)-(e);  statutory references, unless otherwise noted, are to the Penal Code) we hold:  (1) “not committed on the same occasion and not arising from the same set of operative facts” (§§ 667, subd. (c)(6), 1170.12, subd. (a)(6)) incorporates the principles of section 654;  (2) a prior serious felony conviction may be employed both as a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)) and as a five-year enhancement (§ 667, subd. (a));  and (3) the trial court made clear it would not have exercised discretion, if it had such discretion, to dismiss a serious felony conviction.   We affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was convicted of first degree residential burglary (§ 459;  count III), first degree residential robbery (§ 211;  counts I and II), and two serious felony conviction allegations (1991 and 1992 first degree burglary convictions) were found true.

The trial court sentenced appellant to two consecutive thirty–year–to–life state prison terms.

DISCUSSION

1. “Not committed on the same occasion and not arising from the same set of operative facts” (§§ 667, subd. (c)(6);  1170.12, subd. (a)(6)).

 Appellant contends the consecutive thirty–year–to–life state prison terms violated the “not committed on the same occasion and not arising from the same set of operative facts” provisions of sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6).1  We disagree.

These are the essential facts.   On November 29, 1994, Mrs. Smoot and her two sons returned home about 3:30 p.m.   Before entering her house, she noticed a screen door had been torn and a window broken.   Upon entering, she saw that someone had piled her possessions on the livingroom floor and various things, such as her VCR, were missing.   Appellant was standing in the hallway.   When Mrs. Smoot noticed him she said “What are you doing in my house?”   Appellant replied “Wait a minute lady,” dropped his head and charged Mrs. Smoot, swinging his hands at her.

Mrs. Smoot struck appellant and told Gerard, her husky 15–year–old son, to “get him.”   Appellant and Gerard fought, crashed into a dining room table causing it to collapse, and then appellant—with Gerard clinging to his waist—dove through a window, shattering it.

Appellant fled.   Gerard, cut and bleeding, tried to pursue appellant but lost sight of him.

Minutes later and one block away, responding deputy sheriffs arrested appellant in his garage, hiding under clothes, and with Mrs. Smoot's rings and bracelet in his pocket.

Appellant was sentenced consecutively for the robberies of Mrs. Smoot (count I) and her son Gerard (count II).

We agree with People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, as modified 32 Cal.App.4th 1215h [Second District, Division Four], People v. McKee (1995) 36 Cal.App.4th 540, 42 Cal.Rptr.2d 707 [Second District, Division Six], People v. Ingram (1995) 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256 [Fifth District], People v. Carter (1995) 41 Cal.App.4th 683, 48 Cal.Rptr.2d 726 [Second District, Division Five], and People v. Samuels (1996) 42 Cal.App.4th 1022, 50 Cal.Rptr.2d 157 [Second District, Division One] that the principles of section 654 apply to the subject provisions.   Accordingly, appellant may be separately and consecutively punished for robbing each of the two victims.

2. A prior serious felony conviction may be employed both as a strike (§§ 667, subds.(b)-(i);  1170.12, subds. (a)-(e)) and as a five-year enhancement (§ 667, subd. (a)).

 The law is clear a prior serious felony conviction is both a “strike” (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(e)) and may be an enhancement (§ 667, subd. (a)).  (See People v. Ramirez (1995) 33 Cal.App.4th 559, 573–574, 39 Cal.Rptr.2d 374;  People v. Cartwright (1995) 39 Cal.App.4th 1123, 1137–1139, 46 Cal.Rptr.2d 351;  People v. Ingram, supra, 40 Cal.App.4th 1397, 1406–1410, 48 Cal.Rptr.2d 256.)

3. The trial court made clear it would not have exercised discretion, if it had such discretion, to dismiss a serious felony conviction.

 The sentence hearing occurred August 3, 1995, well before the June 20, 1996, decision in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.   In Romero our Supreme Court held that a trial court, on its own motion, has discretion to dismiss serious felony convictions in the interest of justice. (§ 1385, subd. (a).)

Appellant contends the trial court erred in indicating it had no such discretion.   We disagree.

At the sentence hearing the court considered three defense motions:  new trial;  to declare the priors constitutionally invalid on the grounds of cruel and unusual punishment;  to dismiss one or more priors in the interest of justice.   As to this third motion, defense counsel argued the trial court had such discretion.

Initially, argument on the motions was token and the rulings summary.

For example, after denying the motion for new trial, the court stated, “The next is the motion to declare the priors constitutionally invalid on the basis of cruel and unusual punishment.   I've read the motion as well as the points and authorities.  [¶] Is the matter submitted?

“[Defense counsel]:  Yes, your Honor.

“[Prosecutor]:  Submitted, your Honor.

“The Court:  All right.   That motion is denied.   I think that the current status of the law is such that it is not cruel and unusual punishment.”

The trial court then stated, “As to the third request, that for the court to dismiss the prior convictions and basically, as I said earlier, that's on the argument of the separation of powers.  [¶] Is that matter submitted?

“[Defense counsel]:  Yes. It's basically a Tenorio argument.

“[Prosecutor]:  Submitted.

“The Court:  That motion is denied as well based on the current status of the law.”  (Italics added.)

If this had been the end of the matter we would be inclined to remand and request the trial court to clarify its ruling.   Certainly, given no more, it is arguable the trial court indicated the law deprived him of discretion to dismiss a serious felony conviction and therefore he need not consider whether he would dismiss such a conviction if he had such discretion.2

But this was not the end of the matter.   Shortly after pronouncing sentence the trial court and the parties realized the “sentence was computed improperly.”   Then, the sentence was vacated and all three defense motions were revisited.

We are satisfied—that in again disposing of those motions—the trial court made clear it would not exercise discretion to dismiss one or more of appellant's serious felony convictions.   This is what the trial court said:

“THE COURT:  I don't think it's necessarily cruel and unusual punishment.   I don't find that it is in this particular case.   And I'll tell you why for the record.

“Mr. Pearsall didn't just have two convictions that he went to prison on concurrently.   Mr. Pearsall started his career in crime as a juvenile.   He had a petition sustained on an attempted robbery.   He was sentenced to camp.   That didn't seem to do any good.

“Then he had another petition sustained for another theft violation.

“And then finally, a third, possession of cocaine.   He was sentenced to California Youth Authority.

“When he got out of the Youth Authority, he couldn't have been out of the Youth Authority very long when he was arrested for another first degree burglary.   He was convicted of first degree burglary.

“He was given a chance then on probation.   He violated the probation.   He was sentenced to four years in prison.   And that's because the second arrest he had as an adult was another 459 first, another first degree burglary.

“And according to my computations, the time he would have been released from prison couldn't have been too long until he's in these people's house where he's robbing them and burglarizing their home.

“I think that burglary, first degree burglary, is probably one of the most serious offenses that you can commit.   I think that there's nothing more devastating than to have somebody invade the privacy of your home, especially then to walk in and catch him there and have him fight you.

“And in this case, he attacked the woman and when you attack the woman, the 15–year–old son came to her aid.   The two of them, the victim's son and the defendant, went up out through a plate glass window.   It's amazing that the son or the defendant weren't seriously injured or killed.

“I don't think that Mr. Pearsall was someone that we need to feel tremendously sorry for.   He has continued his life of crime from being a juvenile up until the time he got caught this time.   I have to wonder how many times he's done this before and he hasn't been caught.   He certainly was caught this time.

“I don't think that it's cruel and unusual punishment.   I think that the three strikes law has been mandated not only by the Legislature, but had been voted in by the People.   They just don't want Mr. Pearsall on the street and neither do I.” (Italics added.)

DISPOSITION

The judgment is affirmed.

I concur in the judgment and rationale of the majority opinion.   I write separately only to explain why I do so.

The test for finding a sentence constitutes “cruel and unusual punishment” is far different from the test for finding that sentence would not be “in the interest of justice.”   Many sentences which were not deemed “cruel and unusual” would still be eligible for reduction “in the interest of justice.”   Accordingly, in most situations where a trial judge only considered whether to strike a prior “strike” under the “cruel and unusual punishment” test, the case still should be remanded for the trial court to exercise its discretion to strike the strike in the interest of justice.   Furthermore, I would be prepared to dissent if this court failed to do so.

But this case is different.   Here the trial court expressed its views in unmistakable terms on whether it would consider lowering appellant's sentence.   As quoted in the last line of the majority opinion, the court said the Legislature and the People “don't want Mr. Pearsall on the street and neither do I.” Even though the court uttered these words while applying the “cruel and unusual punishment” test, the language used made it clear this trial judge would not have exercised its discretion to strike a strike “in the interest of justice” or for any other reason.   Furthermore, given the seriousness of the third strike as well as appellant's prior record this case is an unlikely candidate for exercise of discretion in a defendant's favor by any judge.   Accordingly, I concur in the affirmance of this conviction and sentence.

FOOTNOTES

1.   Section 667, subdivision (c)(6) provides:  “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).”Section 1170.12, subdivision (a)(6) provides:  “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.”

2.   Had this been the final posture of the case, we would be confronted by the additional issue of whether, given all the circumstances, it would be an abuse of discretion to dismiss one or more of the serious felony convictions.  (See People v. Superior Court (Romero), supra, 13 Cal.4th 497, 530–531, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.

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