People v. Brown, H032740 (Cal. App. 4/22/2009)
| Decision Date | 22 April 2009 |
| Docket Number | H033996,H032740 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LADON BROWN, Defendant and Appellant. In re ANTHONY LADON BROWN, on Habeas Corpus. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Santa Clara County, Super. Ct. No. CC585862.
Defendant Anthony Ladon Brown appeals from a judgment entered after pleading no contest to one felony count of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) Brown also admitted allegations that he had suffered three prior "strike" convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 and that he had served two prior prison terms (§ 667.5, subd. (b)). At sentencing, the trial court denied Brown's Romero2 motion and sentenced him to a term of 25 years to life.
On appeal, Brown contends that the trial court improperly denied his Romero motion. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, Brown raises a claim of ineffective assistance of counsel. Finding no merit to Brown's arguments, we affirm the judgment and deny the petition for writ of habeas corpus.
We derive the facts from the probation reports and other documents in the clerk's transcript.
On March 20, 2005, at approximately 12:15 a.m., San Jose Police responded to a report of a disturbance at Brown's residence. The reporting party, Marcella White, told officers that she was at Brown's residence to pick up their son. She believed the home was not safe for their child, as she had witnessed a gun and a large amount of drugs in a safe in Brown's room on a previous occasion.
Brown consented to a search of his room, where officers located a safe. Brown claimed that he did not know the combination to the safe and denied that there were any drugs or guns in it. During the investigation, a K-9 unit alerted to possible drugs in the safe.
Brown was arrested and taken into custody. After being read his Miranda rights, Brown stated that he had owned the safe for about a year, but had not opened it in over four months. He again denied that there were any drugs or weapons in the safe.
When the safe was opened, it was found to contain $4,000 in cash, a digital scale, 17 similar-sized baggies containing approximately 7.13 grams methamphetamine apiece, as well as one large baggie with 156.31 grams of methamphetamine. Officers located three additional digital scales in Brown's bedroom.
On October 26, 2006, Brown was charged by first amended information with possession for sale of methamphetamine. (Health & Saf. Code, § 11378.) The information further alleged that Brown had suffered three prior "strike" convictions (§§ 667, subds. (b)-(i), 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)).
On February 26, 2007, Brown pleaded no contest to the charge of possession for sale, and admitted the allegations regarding his prior convictions as well as his prior prison terms.
1. 1984 robbery (§ 211)
In October 1984, Brown was serving a commitment to the Santa Clara County James Ranch, when he was released for the day to spend time with his family. Brown, who was 17 at the time, along with five other males, approached two juveniles, ages 15 and 16, outside of the Eastridge Mall. After threatening to beat the two juveniles, Brown and his companions robbed them of $23 in cash, and several items that the juveniles had recently purchased, including a poster, a stuffed animal and a cassette tape. Brown was apprehended and admitted to robbing the two juveniles.
2. 1986 voluntary manslaughter (§ 192, subd. (a))
At about 10:30 p.m. on July 20, 1986, Brown was involved in an altercation involving approximately 40 to 50 people. Witnesses observed Brown exit the melee, holding his eye. Brown then pulled a gun from his back pocket, re-entered the fray and shot the victim, one David B., killing him. In subsequent statements to the police, Brown said that, before the shooting, someone named Pierre3 had hit him in the eye with a hammer. Brown admitted to police that he did not shoot at Pierre, but that he did intentionally shoot David B. because he had previously had problems with that individual. Brown was sentenced to 13 years in prison for this offense.
3. 1996 reckless evasion with gang enhancement (Veh. Code, § 2800.2; § 186.22, subd. (b)(1))
On April 1, 1996, at approximately 9:00 p.m., a security officer flagged down a San Jose police officer regarding a gang fight in progress. The two gangs involved were "Seven Trees Crips" and "Family Crip Gangsters." Police began to follow a car, driven by Brown, which had been identified as being at the scene of the gang fight. A high speed chase ensued. At one point during the chase, the car slowed down to approximately 30 miles per hour and the occupants threw two handguns from the car. The chase continued, reaching speeds of up to 80 miles per hour. At some point, Brown exited the freeway and, on surface streets, drove into opposite lanes of traffic and ran multiple red lights. He eventually stopped the car, where he and two passengers fled on foot. Brown, who was still on active parole for the 1986 voluntary manslaughter, was apprehended.
Brown was subsequently convicted and sentenced to six years in prison.
Brown filed a Romero motion asking the trial court to dismiss the three strike priors before sentencing. Brown argued that the court should dismiss his strike priors "in furtherance of justice" as described in section 1385, subdivision (a), because his present felony was not serious or violent. He also argued that two of his prior strikes were at least 20 years old and the most recent strike was 10 years old.
Brown's motion also related various personal factors in support of striking his strike priors, such as the fact that he has two young children, and had been gainfully employed for the three years prior to his arrest in 2005. After being released from prison in 2000, he had been discharged from parole in December 2003. Furthermore, in his interview with the probation officer, Brown stated that he only began selling methamphetamine in order to support his own methamphetamine habit. While Brown also told the probation officer that he did not see his methamphetamine use as "problematic," by October 2006, he was enrolled in a substance abuse program at the county jail.
At the April 6, 2007 hearing on the motion, the trial court agreed that the current offense was not serious or violent, and that Brown had tried to maintain employment over the past few years. However, the trial court was ultimately concerned that there was a report of a firearm in the current case, especially as one of Brown's prior strikes involved him using a firearm to kill someone. In addition, Brown had admitted beginning to use methamphetamine in early 2005, after having been released from prison. Finally, the supplemental probation report was very negative, pointing out that Brown displayed the behavior of a career criminal and had spent the majority of his adult life incarcerated.
The trial court denied Brown's Romero motion and sentenced him to 25 years to life in prison.
Brown argues that the trial court abused its discretion in two ways. First, the trial court based its denial of his Romero motion on erroneous factual findings, i.e., that there was a firearm involved and that Brown was on parole at the time of the instant offense. Second, the trial court committed legal error when it said that it did not have discretion to sentence Brown to less than 25 years to life.
A defendant has the right to seek review of a court's decision not to strike a prior conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The court's decision is reviewed under the abuse of discretion standard, and the burden on defendant is to show that the court's decision was " ` "irrational or arbitrary." ' " (Id. at pp. 376-377.) In reviewing a ruling on a motion to strike priors under section 1385, the 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, 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.)
Citing People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff ), Brown argues the court abused its discretion because its findings were based on erroneous facts, specifically that Brown was still on parole and that there was a gun involved in the instant offense.
In Cluff, the defendant was convicted of violating section 290, failing to comply with the sexual offender registration scheme. In addition, the court found Cluff had suffered three prior strikes under the Three Strikes law and had served a prior prison term. Cluff's motion to strike the prior conviction allegations was denied. Though Cluff had not changed his residence, he had failed to comply with a separate...
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