People v. Shermer CA3 ( 2015 )

Filed 1/13/15 P. v. Shermer CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C075590
Plaintiff and Respondent, (Super. Ct. Nos.
13F00020 & 13F04091)
v.
RAYMOND SHERMER,
Defendant and Appellant.
Defendant Raymond Shermer pleaded guilty to possession of a controlled
substance for sale (Health & Saf. Code, § 11378) and transportation of a controlled
substance (Health & Saf. Code, § 11379, subd. (a)). He admitted a prior burglary
conviction for purposes of the “Three Strikes” law. (Pen. Code, §§ 667, subds. (b)-(i),
1170.12.) He also admitted a prior conviction for transporting a controlled substance in
violation of Health and Safety Code section 11379, within the meaning of Health and
Safety Code section 11370.2, subdivision (c) and an on-bail enhancement pursuant to
Penal Code section 12022.1.
1
Prior to sentencing, defendant filed a motion pursuant to People v. Superior Court
(Romero) (1996) 13 Cal. 4th 497 (Romero) asking the trial court to dismiss his prior
burglary conviction. The trial court denied the motion.
On appeal, defendant contends the trial court abused its discretion in denying his
Romero motion. Finding no error, we affirm the judgment.
BACKGROUND
A. Factual Background
Case No. 13F00020
On December 30, 2013, Sacramento Police Officers Buno and Magner were on
patrol when they observed defendant using a cell phone while driving in violation of
California Vehicle Code section 23123. Magner initiated an enforcement stop and
approached defendant’s car on the driver’s side. Buno positioned himself on the
passenger’s side of the car.
Magner got defendant’s name and returned to the patrol car to conduct a records
check. Buno observed defendant from the passenger’s side of defendant’s car. He
noticed that defendant appeared nervous and fidgety. While Buno was watching,
defendant removed a clear plastic case from the lower portion of his body and dumped
the contents into a cup in the center console of the car. Buno illuminated the center
console area of the car and observed a crystallized substance resembling
methamphetamine.
Buno and Magner forcibly removed defendant from the car. During the struggle,
the cup was knocked over and the contents spilled all over the car.
Defendant was placed in handcuffs. Officers searched the car, scraping the
crystallized substance from the dash, air conditioning vents, and upholstery. By the time
they were finished, they had collected approximately 46 grams of the crystallized
substance from the interior of the car. The substance was later identified as
methamphetamine. Buno and Magner also found a scale with methamphetamine residue
2
on it and a glass pipe used for smoking methamphetamine. Buno also searched
defendant’s cell phone, and found text messages from an individual who seemed to be
interested in buying drugs from defendant.
At the preliminary hearing, Buno was qualified as an expert in methamphetamine
sales and opined that defendant possessed the drugs for sale, based upon the large
quantity, the scale, and the text messages.
Case No. 13F04091
On June 30, 2013, Officer Michael Severi contacted defendant on Fruitridge Road
in Sacramento County. At the time, defendant was out on bail for case No. 13F00020.
Severi searched defendant’s car and found a baggie containing 0.96 grams of
methamphetamine. Severi also found baggies, $1,392 (mostly in small denominations),
and a small spoon. Severi searched defendant’s cell phone and engaged in a staged
conversation with an individual who appeared to be interested in buying drugs from
defendant.
At the preliminary hearing, Severi was qualified as an expert in methamphetamine
sales and opined that defendant possessed the drugs for sale, given the large sum of cash,
baggies (which were presumably used to make bindles), and text messages.
B. Procedural Background
Defendant’s cases were consolidated and defendant was charged by information
with four counts as follows: (1) possession of a controlled substance for sale (Health &
Saf. Code, § 11378 – count one); (2) transportation of a controlled substance (Health &
Saf. Code, § 11379, subd. (a) – count two); (3) possession of a controlled substance for
sale (Health & Saf. Code, § 11378 – count three); and (4) transportation of a controlled
substance (Health & Saf. Code, § 11379, subd. (a) – count four). The information further
alleged that defendant had a prior serious felony conviction for a 2005 burglary (Pen.
Code, § 459) within the meaning of Penal Code sections 1192.7 and 667.5, subdivisions
(b)-(i). The information further alleged that defendant had a prior conviction for
3
possession of a controlled substance for sale (Health & Saf. Code, § 11378) within the
meaning of Health and Safety Code section 11370.2, subdivision (c) in 1990 and another
prior conviction for transporting a controlled substance in 2008, for which he served a
state prison term within the meaning of Penal Code section 667.5, subdivision (b). With
respect to counts three and four, the information further alleged that defendant committed
the offenses while out on bail pursuant to Penal Code section 12022.1.
On October 21, 2013, defendant filed a Romero motion asking the trial court to
exercise its discretion to strike his prior burglary conviction pursuant to Penal Code
section 1385. The motion summarized defendant’s criminal history as follows: (1) a
1990 conviction for possession of a controlled substance for sale (Health & Saf. Code,
§ 11378) for which defendant received 90 days in county jail; (2) a 1996 conviction for
petty theft (Pen. Code, § 484) for which defendant received 10 days in county jail; (3) a
2003 conviction for auto theft (Veh. Code, § 10851) for which defendant received 120
days in county jail; (4) the 2005 burglary conviction (Pen. Code, § 459) for which
defendant originally received 240 days in the county jail, but later received two years
eight months in state prison after he violated his probation; (5) a 2006 conviction for
possession of a controlled substance (Health & Saf. Code, § 11377) for which defendant
was sentenced to three years in state prison; and (6) a 2008 conviction for transportation
of a controlled substance for sale (Health & Saf. Code, § 11379) for which defendant was
sentenced to six years in state prison.
The motion also emphasized defendant’s decades-long struggle with drug
addiction, the nonviolent nature of his crimes, and the remoteness of his 2005 burglary
conviction.
The parties appeared before the court for defendant’s change of plea hearing later
that day. At the hearing, the trial court confirmed that it had received, read, and
considered defendant’s motion. The trial court asked defense counsel whether he had
anything to add, and defense counsel responded he did not. The trial court then stated:
4
“All right. The Court does have the discretion to strike a prior serious felony in the
appropriate case. This does not appear to be an appropriate case for the Court to exercise
its discretion.” The trial court went on to observe that “while [defendant] was on
probation for the first degree burglary, he violated [Health and Safety Code] Section
11377, which resulted in a prison commitment. And then in 2008, he was convicted of
11379 of the Health and Safety Code, and sentenced to six years in the state prison.”
Accordingly, the trial court concluded, “This is not a case where the Court would
exercise its discretion. So the motion to strike the prior serious felony conviction is
denied.”
Defendant then entered a plea of guilty to count one (possession of a controlled
substance for sale) and count four (transportation of a controlled substance). Defendant
also admitted the on-bail enhancement as to count four, the prior burglary conviction, and
the prior conviction for transporting a controlled substance in violation of Health and
Safety Code section 11379, within the meaning of Health and Safety Code section
11370.2, subdivision (c), in exchange for an aggregate term of 13 years.
Defendant appeared for sentencing on December 5, 2013. In anticipation of
sentencing, defendant submitted a handwritten letter to the trial court stating: “. . . I’ve
been accepted to Delancey Street and Jericho Project based on the fact that I’ve never
been given a chance at any rehabilitative program. I have no job skills and these
programs can change and save my life by teaching me a skill and behavior modification.
I am willing to take my full [exposure] time suspended in order to enter one of these
programs.” Defendant’s letter also noted that defendant has been “a functional addict for
over 20 yrs.”
Defendant also asked to be heard prior to sentencing. He reiterated that he had
been accepted to a drug rehabilitation program and was interested in pursuing treatment.
He also reiterated that he had no job skills and was “willing to take my full exposure time
suspended if I was able to be granted to a behavior modification program to save my
5
life.” The trial court asked defense counsel whether he had advised his client that the
Delancey Street drug treatment program was not an option for defendant in light of the
prior strike conviction. Defense counsel responded that he had.
Defense counsel then offered a letter from defendant’s wife or fiancée.1 The letter
urged the trial court to consider a drug treatment program in lieu of prison, noting that
defendant “has not once been offered any rehabilitation.” The trial court received, read,
and considered the letter, but denied the request, stating, “as we said earlier the prior
serious felony convictions [sic] precludes that type of sentence because it requires a grant
of probation, and that is prohibited by statute. [¶] The Court does not have discretion to
impose that sort of a sentence.”
The trial court then sentenced defendant to 13 years in state prison as follows: the
upper term of three years, doubled to six because of the prior serious felony conviction
for count one (possession for sale); one-third the middle term or two years for count four
(transportation for sale); an additional term of two years for the on-bail enhancement; and
an additional three years for the prior drug conviction enhancement under Health and
Safety Code section 11370.2, subdivision (c).
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court abused its discretion in denying the motion to
strike his 2005 burglary conviction.2 We disagree.
1 The record is ambiguous as to the letter writer’s status. In the letter, she describes
herself as defendant’s wife. In defendant’s opening brief, she is described as defendant’s
fiancée. The ambiguity is irrelevant to our analysis and conclusion.
2 Defendant’s Romero contention does not challenge the validity of his plea and does not
require a certificate of probable cause. (See generally People v. Buttram (2003)
30 Cal. 4th 773, 781-782 [“ ‘the critical inquiry [in determining whether a certificate of
probable cause is required] is whether a challenge to the sentence is in substance a
6
Penal Code section 1385 gives the trial court authority, on its own motion or upon
application of the prosecution, “and in furtherance of justice,” to order an action
dismissed. (Pen. Code, § 1385, subd. (a).) In Romero, the California Supreme Court
held that a trial court may use Penal Code section 1385 to strike or vacate a prior strike
for purposes of sentencing under the Three Strikes law, “subject, however, to strict
compliance with the provisions of section 1385 and to review for abuse of discretion.”
(Romero, supra, 13 Cal.4th at p. 504.) Thus, a trial 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).)
In ruling on a Romero motion, the trial 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 (Williams).)
Dismissal of a strike is a departure from the sentencing norm. Therefore, in
reviewing a Romero decision, we will not reverse for abuse of discretion unless the
defendant shows the decision was “so irrational or arbitrary that no reasonable person
could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified where
the trial court was unaware of its discretion to strike a prior strike or refused to do so for
impermissible reasons. (Id. at p. 378.) But where the trial court, aware of its discretion,
“ ‘balanced the relevant facts and reached an impartial decision in conformity with the
challenge to the validity of the plea’ ” and “ ‘ “the crucial issue is what the defendant is
challenging, not the time or manner in which the challenge is made” ’ ”]; see also
People v. Panizzon (1996) 13 Cal. 4th 68, 78 [the fact that sentencing occurred after the
plea was not determinative].)
7
spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled
differently in the first instance’ [citation].” (Ibid.)
Here, the record clearly establishes that the trial court was aware of its discretion.
Defendant argues that the trial court abused its discretion by focusing solely on
defendant’s criminal record, and ignoring other mitigating factors. However, the record
confirms that the trial court received, read, and considered defendant’s Romero motion,
which addressed the factors said to have been overlooked (namely, the nonviolent nature
of defendant’s current and past offenses, as well as his ongoing struggle with drug
addiction). Although the trial court expressly referred only to defendant’s criminal
history in stating its reasons for denying his Romero motion, we presume the court
actually considered, and based its decision on, all of the relevant factors, including the
factors discussed in defendant’s motion. (People v. Myers (1999) 69 Cal. App. 4th 305,
309-310.)
Defendant also argues that the trial court failed to consider the nonviolent nature
of the current offenses. However, the fact that the current offenses were nonviolent does
not mandate the granting of a Romero motion. (See People v. Strong (2001)
87 Cal. App. 4th 328, 344 [reversing order granting Romero motion based on nonviolent
nature of current offense because “the nonviolent or nonthreatening nature of the felony
cannot alone take the crime outside the spirit of the law”]; see also People v. Poslof
(2005) 126 Cal. App. 4th 92, 108 [even though current crime, failing to register as sex
offender was nonviolent, denial of the Romero motion was not an abuse of discretion];
People v. Gaston (1999) 74 Cal. App. 4th 310, 321 (Gaston) [although current crime of car
theft was “not as serious as many felonies,” it was “far from trivial”].)
Furthermore, defendant’s current offenses, though nonviolent, were nonetheless
quite serious. (Gaston, supra, 74 Cal.App.4th at p. 315.) Defendant was apprehended
with a large quantity of methamphetamine, one of the most addictive narcotics. He was
caught with methamphetamine a second time just six months later. As the People
8
observe, the unlawful sale of methamphetamine leaves a trail of individual victims and
devastates communities. Thus, the fact that defendant’s current offenses were nonviolent
does not take him outside of the spirit of the Three Strikes law.
Defendant also emphasizes the nonviolent nature of his criminal history, claiming
“he emerges as an atypically mild ‘striker’ with no other aggravating circumstances.”
However, defendant, age 46, has a criminal record spanning more than 20 years. He has
six prior convictions, including four prior convictions for selling or transporting drugs.
He committed the drug offense in case No. 13F04091 while on bail for a similar offense
in case No. 13F00020, suggesting he is unwilling to live within the law, even when
facing serious criminal charges. Under the circumstances, the trial court could
reasonably conclude that defendant’s criminal history did not warrant sentencing outside
of the Three Strikes law.
Defendant also argues that “[t]he ‘strike’ in his record, a first degree burglary,
must have been less serious than most such offenses because he was originally granted
probation.” However, first degree burglary is a serious felony. (Pen. Code, § 1192.7,
subd. (c)(18).) Furthermore, defendant suffered a conviction for possession of a
controlled substance while on probation for the burglary conviction, thereby causing his
probation to be revoked. Based on this record, the trial court could reasonably conclude
that defendant “ ‘failed or refused to learn his lesson.’ ” (Williams, supra, 17 Cal.4th at
p. 163.)
Defendant also argues that the trial court failed to fully consider his drug
addiction. “However, drug addiction is not necessarily regarded as a mitigating factor
when a criminal defendant has a long-term problem and seems unwilling to pursue
treatment.” (People v. Martinez (1999) 71 Cal. App. 4th 1502, 1511.) Defendant claims
he “has never been offered the opportunity to enter rehab.” However, defendant’s recent
efforts to seek treatment, though commendable, do not relieve him from the operation of
the Three Strikes law. Furthermore, the trial court could reasonably conclude that
9
defendant’s prolonged drug abuse, and failure to seek treatment for more than 20 years,
suggest that his prospects for rehabilitation are bleak. (Gaston, supra, 74 Cal.App.4th at
p. 322; People v. Martinez, supra, 71 Cal.App.4th at p. 1511; see also In re Handa (1985)
166 Cal. App. 3d 966, 973-974 [“Drug use or drug addiction at the time of an offense is an
example of a disputable factor in mitigation. The sentencing court may find that drug use
did not significantly affect the defendant’s capacity to exercise judgment or, in the case
of an addiction of long standing, that the defendant was at fault for failing to take steps to
break the addiction.”].)
Finally, defendant argues that he “should be treated as though he fell outside the
[t]hree [s]trikes scheme, because he is an addict who, if treated, can be a contributing
member of society.” Defendant’s contention amounts to an invitation for us to second
guess the trial court and substitute our own opinion as to leniency, which we cannot do.
(Williams, supra, 17 Cal.4th at pp. 158-161.) There is no indication the trial court failed
to consider any of the mitigating factors presented in connection with defendant’s
Romero motion. Accordingly, we conclude there was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
BLEASE , J.
We concur:
RAYE , P. J.
BUTZ , J.
10