THE PEOPLE v. BOBBY PARMLEY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTUAL AND PROCEDURAL BACKGROUND

A correctional officer found a syringe in appellant's rear pants pocket while conducting a routine security inspection at Avenal State Prison.   A jury in a bifurcated trial found appellant guilty of unauthorized possession of drug paraphernalia, a felony, (Pen.Code, § 4573.6) ¹ and found true that appellant was previously convicted of four serious and/or violent felonies bringing him within the scheme of the Three Strikes law (§§ 667, subds.(b)-(i);  1170.12, subds. (a)-(d)).  At sentencing, defense counsel moved to strike the prior convictions pursuant to section 1385 and People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 (Romero ).   The trial court, aware of its authority to strike the prior serious felony convictions, declined to do so and sentenced appellant to an indeterminate sentence of 25 years to life.

On appeal, appellant contends the trial court failed to consider “all relevant sentencing factors,” and “viable sentencing alternatives,” resulting in a “grossly excessive sentence undermining federal fairness in violation of [appellant's] constitutional right to due process under the Fourteenth Amendment.”   We disagree and affirm the judgment.

DISCUSSION

A trial court's discretion to strike prior felony conviction allegations is limited to those instances “in furtherance of justice.” (§ 1385, subd. (a);  Romero, supra, 13 Cal.4th at p. 530.)   Exercise of such discretion is subject to review for abuse.  (Ibid.) A court's refusal to strike a prior conviction allegation is also subject to review under the deferential abuse of discretion standard.  (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony ).)  “[A] trial court does not abuse its discretion unless its [sentencing] decision is so irrational or arbitrary that no reasonable person could agree with it.”  (Id. at p. 377.)

Furthermore, the Three Strikes law “creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.”  (Carmony, supra, 33 Cal.4th at p. 378.)   Thus, a court abuses its discretion in failing to strike a prior felony conviction allegation in only limited circumstances, such as when it was not aware of its discretion to dismiss, considered impermissible factors in declining to dismiss, or failed to correct an arbitrary, capricious or patently absurd result of application of the Three Strikes law under the specific facts of a particular case.   (Ibid.)

In considering a defendant's invitation to strike a prior felony conviction allegation, both the trial court and the reviewing court, “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.”  (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams ).)

The purpose of the Three Strikes law is expressly set forth within its provisions:  “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b);  see People v. Strong (2001) 87 Cal.App.4th 328, 338 (Strong ).)   Accordingly, “extraordinary must the circumstance be 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.”  (Strong, supra, 87 Cal.App.4th at p. 338.)  “[T]he circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.”  (Carmony, supra, 33 Cal.4th at p. 378.)

We fail to find such extraordinary circumstances here.   Appellant contends the trial court failed to consider a number of facets of the current offense, namely that it was non-violent in nature, appellant was cooperative with authorities, and no drugs were found to be involved.   Contrary to appellant's assertion, however, the court specifically addressed the offense, and found it constituted dangerous conduct within the confines of a lock-down facility.   Furthermore, “the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law.  [Citation.]”  (Strong, supra, 87 Cal.App.4th at p. 344.)

Appellant has a long criminal history, extending back to 1967.   His arrest record indicates numerous violent crimes, a parole violation, use of firearms, and drug offenses leading up to the 1992 sexual misconduct crimes for which he is currently serving a 39 year sentence.   The prior strikes comprise charges of two assaults with a deadly weapon, (§ 245, subd. (a));  attempted rape (§§ 664, 261, subd. (a)(4));  and offering to sell a controlled substance to a minor.   (Health & Safety Code, § 11353.)   With respect to appellant's contention the strikes were remote, with the last two occurring in 1992, we note appellant has been incarcerated since that time, which suggests he could only maintain long-term lawful conduct while in prison, a streak which ended when he was found in possession of drug paraphernalia.   He is certainly the type of career criminal the Three Strikes law intended to reach.  (See Williams, supra, 17 Cal.4th at pp. 162-163;  Strong, supra, 87 Cal.App.4th at pp. 338-340.)

Appellant also asserts the court failed to consider alternate sentences, time served, appellant's age, and appellant's potential, or lack thereof, to reoffend.   We can sum these up as factors that pertain to the court's examination of appellant's background, character and prospects, (see Williams, supra, 17 Cal.4th at p. 161) and are not persuaded the trial court failed to take these factors into consideration.  “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.  [Citation.]”  (People v. Myers (1999) 69 Cal.App.4th 305, 310;  see also Carmony, supra, 33 Cal.4th at p. 378.)   Thus, “[w]here the record 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.”  (Myers, supra, 69 Cal.App.4th at p. 310.)

The record before us demonstrates the court understood its discretionary authority and weighed the competing facts to reach a reasonable conclusion in conformity with the spirit of the law.   After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike any of the priors.   In view of these facts and circumstances, appellant has failed to show this was an irrational or arbitrary exercise of discretion.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

THE COURT