Filed 12/24/19 P. v. Swan 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Tehama)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

MATTHEW OTTO LEE SWAN,

Defendant and Appellant.

C088966

(Super. Ct. Nos. 18CR000241 & 18CR000996)

Sentenced to five years four months in state prison, defendant Matthew Otto Lee Swan contends the trial court abused its discretion by denying his request to strike his prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In case No. 18CR000241 (18CR241), an information charged defendant with carrying a concealed dirk or dagger (Pen. Code, § 21310), and alleged one prior strike (first degree burglary in 2001—§ 459) and one prior prison term (ownership or possession of ammunition by a prohibited person in 2012—former § 12316, subd. (b)(1)). In case No. 18CR000996 (18CR996), an information charged defendant with failure to appear while on bail in the first case (§§ 1320, subd. (b); 12022.1). The People orally amended the information to allege the prior strike.

Under an open plea agreement, defendant pleaded guilty to carrying a concealed dirk or dagger and failure to appear and admitted the strike, in return for a five-year four-month “lid,” the dismissal of three misdemeanor cases, and the right to file a motion for Romero relief.

The parties stipulated that the factual basis for defendant’s plea was the police report in case No. 18CR241 and the information in case No. 18CR996. The police report stated that on January 15, 2018, after being stopped for a bicycle infraction, defendant was found to have a knife in a sheath on his right hip, and said he had another knife strapped to his right shin.

The probation report noted that defendant, now 35 years old, was ineligible for probation due to his prior strike. In addition to his 2001 first degree burglary, he had a misdemeanor battery conviction in 2004; the 2012 felony conviction alleged in case No. 18CR241 for being a prohibited person in possession of ammunition; a 2011 misdemeanor conviction for corporal injury to spouse or cohabitant; a 2015 misdemeanor conviction for driving without a license; a 2015 misdemeanor conviction for possession of drug paraphernalia; and a 2015 violation of postrelease community supervision (PRCS) based on the latter conviction. He also had four failures to appear (two in 2015, one in 2017, & one in 2018) in cases of driving violations.

The probation department could not interview defendant or get a statement from him because he had not made an appointment for a presentence investigation.

Defendant married and had a child in 2014 but had a restraining order against him. He also had two younger children currently in the child protective services system.

Defendant began using methamphetamine as a teenager and continued to use it through his time on PRCS, which ended on September 23, 2016. In August 2016, he told Alameda County sheriff’s deputies that he was a “white pride” gang member.

Defendant dropped out of school in tenth grade, but subsequently completed his California High School Proficiency Exam. It was unknown if he was employed or had an income.

The probation report stated in summary: “The defendant has a long history of drug abuse, failed a prior grant of probation and served two prior prison terms. Even after he was charged with a failure to appear in the current matter, he made no attempt to contact the probation department for a presentence interview and his whereabouts are unknown. He continues to ignore his obligation to the court. State prison is recommended.”

Defendant filed a motion for Romero relief, asserting:

His prior strike, a first degree burglary, occurred when he was 19 years old. His father died of alcoholism when defendant was 20, and his mother was soon after killed by a drunk driver. Defendant then violated his first grant of probation and was sentenced to four years in prison for the burglary.

In prison, defendant performed so well as a firefighter that his CalFire captain encouraged him to pursue a career in firefighting and said he would consider hiring defendant if he did so. However, in 2007 he suffered a vicious stabbing attack which resulted in six days in intensive care and four more days in the hospital.

Defendant subsequently obtained firefighter certification and worked for several seasons at different fire stations, including the one where his former fire camp captain was posted. Unfortunately, after moving back to Red Bluff, defendant had a “relapse” and eventually returned to prison.

Defendant’s work history also included several years at an auto shop where he became a manager, and part-time janitorial work over the last five years. Overall, it showed “periods of significant productivity.”

Defendant’s criminal history did not involve increasing violence, and his current felony charges were far less serious than his strike. In the current case, one of the knives on his person was legally possessed in open view, and he was cooperative with the officers when asked if he had any other weapons. If the trial court struck his strike, he could still receive a prison term of three years eight months, a significant time for him to be away from his family.

The People did not file a written response but argued at the hearing on the motion that defendant clearly fell within the spirit of the three strikes law because his criminal history had been “ongoing since 2001” and showed a wide range of criminal activity. Furthermore, he had a pattern of failing to appear in court, not only in prior criminal cases, but also in the trailing cases that were dismissed under his plea. The fact that his current offense was not violent did not matter for purposes of the three strikes law.

The trial court ruled: “[E]ven if the Court accepts all of the statements as true as to [defendant’s] history, what that tells the Court is [defendant] is an individual that clearly can live a law-abiding life but he chooses not to live a law-abiding life. He has got the skill set where he could not be in the criminal justice system; and, yet, he continues to do things to put himself in that position. He has an extensive criminal history which is one of the reasons for the three strikes law. And, while I recognize that he might want to carry a knife in self defense, he was carrying a knife legally; it was the knife that he was carrying illegally that resulted in these charges and I am confident that [defendant] knows that carrying a concealed knife is a crime. So, the Romero motion is denied.”

The trial court thereafter imposed the five-year four-month maximum sentence under the plea agreement, which included the middle term for the failure to appear and one-third the middle term for the dirk or dagger offense, both doubled for the strike.

DISCUSSION

Defendant contends the trial court abused its discretion by refusing to strike his strike. We disagree.

The three strikes law “ ‘establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) A trial court may exercise its discretion to dismiss prior strike allegations pursuant to section 1385 if it finds that “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 [three strikes] 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.)

When a trial court declines to dismiss a prior strike allegation, we review its decision for abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 374-375.) In the context of sentencing decisions, “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. 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 at least in part 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 spirit of the law, we shall affirm the . . . ruling, even if we might have ruled differently in the first instance.’ [Citation.]” (Ibid.)

Here, the trial court was aware of the relevant facts and reached an impartial decision in conformity with the spirit of the three strikes law. The court recognized that defendant had shown the capacity to live a law-abiding and productive life at times, but that just made his relapses into criminality more egregious. His history of criminal conduct, even if not the most extreme, was extensive and varied, and his offenses had grown more frequent in the last few years. He had a long-lasting addiction to methamphetamine, and there is no evidence in the record that he had ever sought treatment for it. His pattern of failures to appear in court showed a lack of concern for conforming to even a minimum standard of conduct. Likewise, his failure to appear before probation for the presentence report underscores a lack of concern or interest in addressing his criminal matters. In short, nothing in defendant’s history showed that he deserved to be treated as though he were outside the spirit of the three strikes law. Even if the court could have sentenced more leniently, that does not mean that its sentencing decision was an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)

Defendant argues for a more lenient treatment of his criminal history, relying on People v. Banks (1997) 59 Cal.App.4th 20 and People v. Bishop (1997) 56 Cal.App.4th 1245. We are not persuaded. The opinion in Banks, decided shortly after Romero, sets out a list of criteria for the trial court to consider in a three strikes case (Banks, at p. 24); however, Banks has been superseded in that respect by People v. Williams, supra, 17 Cal.4th at page 161, and Carmony, supra, 33 Cal.4th at pages 377-378. The opinion in Bishop, so far as it holds a strike should be stricken if the court deems the defendant’s criminal history less grave than those of other three-strike defendants (Bishop, at pp. 1250-1251), cannot be reconciled with Williams and Carmony, which call for an individualized determination as to each defendant, not a comparison of that defendant to others.

Defendant asserts that his current offense “does not demonstrate any tendency to recidivate as a violent felon.” But the three strikes law does not apply only to violent felons: any serious felony may be a strike, whether or not it is also violent. (§§ 667, subd. (b); 1170.12, subd. (b).)

Defendant cites People v. Cluff (2001) 87 Cal.App.4th 991, where the appellate court found the trial court abused its discretion by not striking strikes because it misconstrued the facts to conclude that the defendant, a registered sex offender, had deliberately obfuscated his current residence. (Id. at pp. 997-1004.) Cluff does not assist defendant because he points to no similar factual mistake by the trial court here.

Defendant also cites People v. Burgos (2004) 117 Cal.App.4th 1209, where the appellate court found the trial court abused its discretion by not striking one of the defendant’s two strikes because they arose out of a single criminal act, his criminal history aside from that act consisted only of misdemeanors, and his current sentence—if a strike were not stricken—would be 58 years to life. (Id. at pp. 1214-1217.) Like Cluff, Burgos is factually inapposite: neither of defendant’s strikes involved impermissible dual punishment for a single act, and he is not facing a life sentence.

Defendant asserts he would have received sufficient punishment even if the strike were stricken, citing People v. Garcia (1999) 20 Cal.4th 490 (Garcia) and People v. Strong (2001) 87 Cal.App.4th 328. This argument fails to show that the trial court abused its discretion.

In Garcia, where the Supreme Court held that the trial court did not abuse its discretion by striking a strike with respect to one count but not another, the defendant’s sentence with the strike stricken was 31 years and 4 months to life—which, as the court noted, was “not lenient” and therefore could not be deemed “inconsistent with the purpose of the Three Strikes law.” (Garcia, supra, 20 Cal.4th at p. 503.) Here, even without a strike stricken, defendant faces a far lesser sentence. Moreover, the defendant’s convictions in Garcia all arose from one period of aberrant behavior for which he had served a single prison term. (Ibid.) Here, there is no such period of aberrant behavior; on the contrary, defendant has offended repeatedly throughout his adult life. Given the disparity between Garcia and the present case in both the fact patterns and the sentences imposed, Garcia is inapposite.

Defendant’s reliance on People v. Strong, supra, 87 Cal.App.4th 328, is misplaced. Defendant cites the case for the proposition that “[i]f a defendant would receive a substantial sentence even after a strike is dismissed, it is proper for the sentencing court to dismiss a strike.” But Strong at the page cited (id. at p. 341.) does not state any such broad proposition. It notes that there have been cases in which trial courts did not abuse their discretion by striking strikes, but it also points out the multiple factors that favored the striking of a strike in each of those cases, of which the length of the sentence was only one. (Id. at pp. 340-342.)

Defendant has failed to show that the trial court abused its discretion by declining to strike his strike.

DISPOSITION

The judgment is affirmed.

/s/

Butz, J.

We concur:

/s/

Robie, Acting P. J.

/s/

Murray, J.