People v. Myers
| Decision Date | 19 January 1999 |
| Docket Number | No. B117230,B117230 |
| Citation | 81 Cal.Rptr.2d 564,69 Cal.App.4th 305 |
| Parties | , 99 Cal. Daily Op. Serv. 537, 99 Daily Journal D.A.R. 607 The PEOPLE, Plaintiff and Respondent, v. Michael C. MYERS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and Jim Hart, Deputy Attorney General, for Plaintiff and Respondent.
A parole search of the residence of Michael C. Myers on May 3, 1995, revealed two loaded handguns hidden under a mattress. Appellant was sentenced to prison for a term of 25 years to life after he was found guilty by a jury of being a felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a)(1) and found by the court to have previously been convicted of three serious or violent felonies within the meaning of the Three Strikes law.
This is his second appeal. In the first, we affirmed the judgment of conviction, but remanded for: (1) an exercise of discretion under the holding of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628; (2) a determination as to whether to strike or impose one-year enhancements pursuant to Penal Code section 667.5, subdivision (b); and (3) recalculation of presentence custody credits under Penal Code section 4019. On remand, the court denied appellant's motion to strike prior convictions, granted his request to strike four one-year enhancements, and awarded appellant 360 days of presentence custody credits pursuant to stipulation of the parties.
Appellant contends he is entitled to be resentenced because the trial court abused its discretion in denying his motion to strike prior convictions, failed to obtain a supplemental probation report, miscalculated his presentence custody credits and imposed an unconstitutionally cruel and unusual punishment. For reasons explained in this opinion, we reject these contentions and affirm the judgment.
At the time of sentencing, the prosecution offered appellant a negotiated disposition pursuant to which one of appellant's prior strike convictions would be stricken in return for his agreement to forfeit all custody credits earned up to that point. 1 Appellant refused this offer, despite the trial court's warning that it did not intend to grant his motion to strike. The court then denied appellant's motion, explaining that appellant's 1983 convictions were for violent felonies (arson and armed robbery) which had potential for great violence, and that the circumstances of the current conviction involved possession of a gun and the possibility of violence.
Appellant contends this ruling was an abuse of discretion because the court failed to weigh the relevant sentencing factors, including his age, the nature and circumstances of his current non-violent offense and the remoteness of his prior offenses. Appellant charges that the only factor actually considered by the court was "violence, or the threat of violence involved in the prior strike convictions and the current offense" and that the court "failed to realize that the timing of appellant's strikes could properly operate as a factor in mitigation." Appellant's brief asserts that it is "obvious" appellant did not understand "that because his conviction had already been upheld on appeal, the only possible favorable result was the dismissal of his prior strike convictions." He argues that under these circumstances the court's failure to strike two of his prior convictions was arbitrary and capricious.
Respondent counters that appellant's contention of error must be summarily rejected under the holding of People v. Benevides (1998) 64 Cal.App.4th 728, 75 Cal.Rptr.2d 388. In that case the reviewing court stated that "if the trial court does not exercise its power to dismiss or strike, there is no review available to the defendant on appeal." (Id. at p. 734, 75 Cal.Rptr.2d 388.) This statement was qualified by footnote 6, added in modification of the opinion: "We do not hold a defendant may not appeal or that a defendant lacks standing to appeal the issue.
Rather, we conclude that trial court error for failure to exercise its section 1385 discretion must be affirmatively shown by the record. [Citation.] Under this limited review for trial court error, we do not reweigh the circumstances of the case to determine whether, in our opinion, the trial court should have, or properly refrained from, exercising its discretion to strike a prior conviction."
To the extent that the Benevides court was attempting to say that it does not review the trial court's decision de novo, we, of course, agree. The opinion labors, however, because it rests upon the questionable premise that the denial of a motion to strike a prior conviction is not an exercise of discretion. Discretion is the power to make the decision, one way or the other. (See People v. Tenorio (1970) 3 Cal.3d 89, 95, 89 Cal.Rptr. 249, 473 P.2d 993 []; Gossman v. Gossman (1942) 52 Cal.App.2d 184, 194-195, 126 P.2d 178 [].)
We need not dwell on Benevides. We shall continue to review rulings on motions to strike prior convictions when the issue is raised under the deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where 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. (People v. Wade (1959) 53 Cal.2d 322, 338, 1 Cal.Rptr. 683, 348 P.2d 116.)
Here, the record demonstrates that appellant's counsel filed a sentencing memorandum which brought to the court's attention the specifics of the holding of People v. Superior Court (Romero), supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, the circumstances of appellant's current crime (including the fact that the first jury to hear the case hung 9 to 3 in favor of acquittal), and the fact that all of his prior felony convictions were committed on one occasion more than 14 years earlier. At the resentencing hearing, counsel informed the court that appellant rejected the prosecution's offer despite advice to the contrary, that the first jury had hung, that the guns had been found in appellant's girlfriend's apartment, that there were no fingerprints tying appellant to the guns, that the critical evidence of guilt was a statement of ownership attributed to appellant by police, but which appellant denied having made. Appellant's counsel also argued that the crime involved no violence, and that appellant's prior convictions all arose out of one transaction in which appellant was not armed. The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Kelley (1997) 52 Cal.App.4th 568, 582, 60 Cal.Rptr.2d 653.) Thus, the fact that the court focused its explanatory comments on the violence and potential violence of appellant's crimes does not mean that it considered only that factor. Accordingly, appellant has not demonstrated that the trial court abused its discretion in denying his motion to strike prior convictions.
Appellant contends the trial court erred in failing to...
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...to have considered all of the relevant factors in the absence of an affirmative record to the contrary" ( People v. Myers (1999) 69 Cal.App.4th 305, 310, 81 Cal.Rptr.2d 564 ( Myers )). When, as here, the record is silent as to the trial court's reasons for declining to strike a prior strike......
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