People v. Newbolds CA1/5 ( 2021 )

Filed 9/24/21 P. v. Newbolds CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, A160484
Plaintiff and Respondent,
v. (Mendocino County
MICHAEL JAMES NEWBOLDS, Super. Ct. Nos. SCUK-CRCR-18-
Defendant and Appellant. 95447, SCUK-CRCR-19-30027,
SCUK-CRCR-20-33920)
Michael Newbolds appeals from a judgment entered after he pled no
contest in three different criminal cases. He contends the trial court erred
when it denied his motion to strike his prior strikes pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We will reject this
argument and affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A. Case Numbers 18-95477 & 19-30027
Appellant was arrested in August 2018 for having approximately 14
grams of methamphetamine on his person while in close proximity to a scale
and a plastic bag. Based on these facts, and as relevant here, a complaint
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was filed in case number 18-95477 alleging appellant possessed a controlled
substance for purposes of sale. (Health & Saf. Code1, § 11378.)
Appellant failed to appear at his preliminary hearing. Therefore in
early January 2019, the Mendocino County District Attorney filed two
complaints against appellant. The first was an amendment in case number
18-95477. It added an allegation that appellant had suffered one prior strike
within the meaning of the Three Strikes law. (Pen. Code, §§ 1170.12, 667.)
The second, in case number 19-30027, was a new action. As is relevant here,
it alleged appellant failed to appear after being released on his own
recognizance. (Pen. Code, § 1320, subd. (b).)
Appellant pled no contest in both cases and the trial court sentenced
him in February 2019. Pursuant to a global disposition, the court suspended
the imposition of the sentence and placed appellant on probation for three
years. As part of appellant’s plea agreement, the court declined to sentence
him on the strike allegation so he would have the opportunity to rehabilitate
himself.
B. Case Number 20-99320
In June of 2019, the probation department filed a petition alleging
appellant had violated his probation. The trial court revoked appellant’s
probation and the police placed him under arrest. During the arrest, officers
found seven grams of methamphetamine on appellant’s person and 2 ounces
of methamphetamine in his vehicle. Appellant told the officers he was
delivering the larger amount to an associate in Willits.
Based on these facts, an information was filed charging appellant with
possessing a controlled substance for purposes of sale. (§ 11378.) As is
1Unless otherwise indicated, all further section references will be to
the Health and Safety Code.
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relevant here, the information also alleged appellant had suffered two prior
strikes within the meaning of the Three Strikes law. (Pen. Code, §§ 1170.12,
667.) The first was a 2003 conviction for assault with a deadly weapon. (Pen.
Code, § 245, subd. (a)(1).) The second was a 1998 conviction in Illinois for
residential burglary. (Former Ill.Rev.Stat.1983, ch. 38, par.19-3(a) (now 720
ILCS 5/19-3(a)).)
In March of 2020, appellant pled no contest to the possession for sale
charge and admitted the prior strike allegations. Based on appellant’s plea
in case number 20-99320, the trial court found he had violated his probation
in case numbers 18-95477 and 19-30027.
C. Consolidated Sentencing
The trial court sentenced appellant on all three cases in May 2020. In
case number 20-99320, the court sentenced appellant to the low-term of 16
months doubled to 32 months by operation of the Three Strikes law. In case
number 18-95477, the court permanently revoked probation and sentenced
appellant to an 8-month term to run consecutive to the sentence in case
number 20-99320. In case number 19-30027, the court permanently revoked
probation and sentenced appellant to 2 years, 8 months, also to run
consecutive to the sentence in case number 20-99320. In total, the court
sentenced appellant to six years of confinement.
In July of 2020, appellant filed a timely notice of appeal.
II. DISCUSSION
Appellant filed a motion prior to sentencing in which he asked the trial
court to strike his prior strikes pursuant to Romero. He argued they should
be stricken because they were remote in time, his prior criminal history
stemmed from his addiction to drugs, and recent California sentencing laws
evidenced an intent to keep those who are addicted out of prison.
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The People opposed the motion noting appellant was 44 years old, he
was facing his fifth felony conviction, he had a 25-year criminal history that
also included 30 prior misdemeanor convictions, and he was on probation at
the time of his most recent offense.
The trial court denied appellant’s motion to strike the strikes
explaining its decision as follows:
“I am receptive to the argument of the revolution in the criminal justice
world and over incarceration of people who suffer from substance abuse
charges.”
“However - - and I recognize that I have the discretion to strike the two
priors.”
“However, given the facts of this case, the Court does not find that is
appropriate, simply because I disagree with the total length that would be
imposed.”
“Mr. Newbolds was on two grants of felony probation at the time of this
offense. He has 30 prior misdemeanor convictions, including acts of violence.”
“He was not in compliance with probation at the time of the new
offense. He was out of compliance, and out to warrant.”
“Additionally, the Court is considering that on these two prior grants of
probation, he was given the benefit of having the strike removed so that he
could have the opportunity to find rehabilitation and then this new law
violation occurred.”
“So in total the Court finds that he does not fall outside of the three
strike statutory scheme as it is presently.”
Appellant now contends the trial court erred when it denied his motion
to strike the prior strikes.
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A. Trial Court Authority Under Romero
In Romero, our Supreme Court ruled that “ ‘a trial court may strike or
vacate an allegation or finding under the Three Strikes law that a defendant
has previously been convicted of a serious [or] violent felony, on its own
motion, “in furtherance of justice” pursuant to [Penal Code] section 1385
(a).’ ” (People v. Carmony (2004) 33 Cal.4th 367, 373.)
A trial court considering whether to strike a strike must determine
whether the defendant, in light of his current crime, criminal history,
background, character, and prospects, should be deemed “outside the . . .
spirit” of the Three Strikes law, in whole or in part, such that he should be
treated as though the prior strike conviction had not occurred. (People v.
Williams (1998) 17 Cal.4th 148, 161.)
B. Appellate Court Authority Under Romero
On appeal, we review the denial of a Romero motion for abuse of
discretion. (People v. Carmony, supra, 33 Cal.4th at p. 373.) While
conducting that review, we must remain mindful that “ ‘ “[t]he burden is on
the party attacking the sentence to clearly show that the sentencing decision
was irrational or arbitrary. [Citation.] In the absence of such a showing, the
trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular
sentence will not be set aside on review.’ ” [Additionally,] a ‘ “decision will
not be reversed merely because reasonable people might disagree [and] ‘[a]n
appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’ ” ’ ” (Id. at pp. 376–377.)
With this guidance, we turn to the specific arguments appellant has
advanced.
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C. Appellant’s Arguments
1. Nature and Circumstances of Prior Strikes
Many of appellant’s arguments on appeal follow a similar pattern.
First, appellant identifies evidence that was in the record prior to the
sentencing hearing. Then appellant compares each item of evidence with the
court’s comments at the hearing itself. Because the court did not expressly
comment on each item, appellant argues the court failed to consider them.
Appellant’s arguments concerning the nature and circumstances of the prior
strike allegations are an example. Appellant contends the trial court failed to
consider his upbringing, his age, and the amount of time that had passed
since his strike eligible offenses. Appellant also claims the court did not
consider the fact that his lengthy criminal history included a five-year period
where he committed no crimes, and that he had made prior attempts to
overcome his drug addiction before committing his third strike.
All these arguments suffer from the same flaw. While the trial court
did not expressly mention the facts appellant has identified, that does not
mean the court failed to consider them. All the factors appellant cites were
either discussed in, or evident from, the written materials that were
submitted to the trial court prior to sentencing. And pursuant to binding
Supreme Court authority, we are required on appeal to presume the court
considered those factors. (People v. Carmony, supra, 33 Cal.4th at p. 378)
Here, appellant has not cited any evidence that shows the court did not
consider the factors he has identified. Absent such evidence, we must
conclude the trial court did so.
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2. Nature and Circumstances of Current Offenses
Appellant contends that because he is a drug user with an addiction
problem, his crimes don’t make him the type of offender the Three Strikes
law was meant to punish.
Appellant misinterprets the purpose of the Three Strikes law. Penal
Code section 1170.12 states, “[a]ggregate and consecutive terms for multiple
convictions” can be imposed “if a defendant has been convicted of a felony
and it has been pled . . . that the defendant has one or more prior
serious or violent felony convictions.” (Pen. Code, § 1170.12, subd. (a),
bolding and underlining added).)
Thus, appellant was not being sentenced because his current offenses
show he was a drug user who suffered from addiction. He was being
sentenced because he was a life-long criminal who had committed three new
felonies and had suffered two prior serious felony convictions that qualified
as strikes within the meaning of the Three Strikes law. In our view,
appellant falls directly within the scope of the statute.
Appellant next contends the trial court did not consider the fact that he
was transporting methamphetamine for money so he could afford a place to
live. He argues that because his crime was not violent, the trial court should
have stricken the prior strikes.
First, the presentence report—which the trial court reviewed prior to
sentencing—states appellant was homeless at the time of his conviction.
Therefore, the trial court was aware of appellant’s lack of housing. Second,
while it is true that appellant’s current felonies were not violent, appellant
has not cited, and the court is not aware of any authority that shows, a
current offense must be violent to trigger a Three Strikes sentence under the
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circumstances that were present in this case. Appellant’s argument is
unpersuasive.
3. Policy Considerations
Next, appellant notes that other states on the West Coast have
decriminalized certain types of drug possession. He argues that given this
fact, he should not be incarcerated for his most recent crimes. This argument
fails because appellant was not convicted of simple drug possession. Rather,
appellant was convicted of possessing drugs for purposes of sale. (§ 11378.)
Appellant’s argument on this point is based on a false premise.
4. Appellant’s Current Health Situation
Appellant’s next argument is based on evidence in the record that
shows he suffers from congestive heart failure. Citing evidence from a
website that states 50 percent of the people who suffer from that condition
will die within five years, appellant argues his six-year sentence is a “de facto
life sentence[]” that is unjust.
Appellant did not raise this specific argument in the court below, so he
has forfeited the right to raise it on appeal. (People v. Carmony, supra, 33
Cal.4th at pp. 375–376.) We also reject the argument on the merits. The
presentence report stated appellant was suffering from congestive heart
failure. Thus, the court was well aware of appellant’s poor medical condition.
The mere fact that the court declined to strike the prior strike findings does
not demonstrate the court ignored that condition or that it abused its
discretion. We find no error on this ground.
5. Distinguishing Avila
In arguing the trial court erred when it declined to strike his prior
strikes, appellant relies primarily on People v. Avila (2020) 57 Cal.App.5th
1134. The defendant in Avila was convicted of attempted second degree
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robbery and attempted extortion after he “squashed . . . oranges” that were
being sold by a roadside vendor. (Id. at p. 1139.) After the trial court
sentenced the defendant to a Three Strikes enhanced term of 39-years-to-life
in prison, he filed an appeal. On appeal, the Avila court ruled the sentence
violated the Eighth Amendment prohibition against cruel and unusual
punishment. (Id. at p. 1145.) But the court also ruled the trial court erred
when it denied the defendant’s motion to strike three prior strikes. As the
court explained, “no reasonable person could agree that the sentence imposed
on Avila was just.” (Ibid.)
Avila is distinguishable because the sentence imposed there was far
different from the one imposed in this case. Here, the trial court sentenced
appellant to a six-year term based on his convictions in three different
criminal cases. Furthermore, appellant already had the benefit of having one
of his prior strikes stricken so he could have an opportunity to rehabilitate.
We conclude Avila is not controlling under the very different facts that are
present here.
6. Totality of the Circumstances
Our review leads us to conclude the trial court either expressly or is
presumed to have considered all the relevant circumstances concerning
appellant, his prior history, and his current crimes. While some of the factors
appellant has identified may have supported the court’s ruling if it had
decided to strike appellant’s prior strikes, that is not how the trial court
ruled. Since “[n]o error occurs if the trial court evaluates all relevant
circumstances to ensure that the punishment fits the offense and the
offender," we conclude the trial court did not abuse its discretion when it
denied appellant’s Romero motion. (People v. Shaw (2020) 56 Cal.App.5th
582, 587.)
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III. DISPOSITION
The judgment is affirmed.
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_______________________
NEEDHAM, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
BURNS, J.
A160484
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