People v. Bailey CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD251987
- Trial judge
- Frederic L. Link
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Alex C. McDonald, Cynthia Aaron
Analysis
The trial court denied Bailey's motion to strike his 1992 prior serious felony conviction, finding that his continuous criminal history since that date placed him within the spirit of the Three Strikes Law. The Court of Appeal affirmed the judgment, holding that the trial court did not abuse its discretion in denying the motion.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to strike prior serious felony conviction under Penal Code section 1385“A reasonable trial judge could very easily conclude Bailey comes fully within the spirit of the Three Strikes Law as discussed in Williams, supra, 17 Cal.4th 148.” | abuse of discretion | not reached | agree with court The appellate court applied the abuse of discretion standard and found no error because the trial court considered the defendant's continuous criminal conduct between the prior and current offenses, which is a permissible factor under controlling precedent. |
Authorities
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — A court may strike a prior serious or violent felony conviction for sentencing purposes under section 1385 in the furtherance of justice.
- relied: People v. Rodrigues (1994) 8 Cal.4th 1060 — The trial court's decision to grant or deny a motion to strike a prior conviction is reviewed under the abuse of discretion standard.
- relied: People v. Carmony (2004) 33 Cal.4th 367 — The trial court's decision to strike or deny a strike prior is reviewed for abuse of discretion, and the court must consider the defendant's criminal history, nature of offenses, and prospects for rehabilitation.
- relied: People v. Williams (1998) 17 Cal.4th 148 — When a strike prior is remote in time, the court must look at the defendant's behavior from the time of the prior to the current offense; continuous criminal conduct indicates the defendant comes within the spirit of the Three Strikes Law.
- relied: People v. Humphrey (1997) 58 Cal.App.4th 809 — A trial court may not strike a remote strike prior merely because it is remote; it must consider the defendant's conduct during the intervening period.
- relied: People v. Yearwood (2013) 213 Cal.App.4th 161 — Proposition 36 diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or a disqualifying factor is pled and proved.
The appellate opinion: sound — The opinion correctly applies the abuse of discretion standard and the factors from People v. Williams and People v. Humphrey to evaluate the trial court's decision. It properly rejects the Proposition 36 argument by noting the current offense is a serious felony, making the argument irrelevant to the sentencing scheme applied.
The trial court denied Jeffrey Lee Bailey's Penal Code section 1385 motion to strike a 1992 residential burglary strike prior and sentenced him to 13 years after a jury convicted him of first degree burglary and misdemeanor vandalism. The Court of Appeal found no abuse of discretion, rejected Bailey's Proposition 36 argument as irrelevant to a second-strike sentence for a serious felony, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Romero motion to strike the 1992 serious felony strike prior under Penal Code section 1385“It is clear the court was aware of its discretionary authority, but elected not to exercise his discretion because of Bailey's continuous criminal behavior since his 1992 conviction.” | abuse of discretion | correct | agree with court Under Williams and Carmony, the trial court must weigh criminal history, the nature of the offenses, and prospects; remoteness alone does not require striking a prior where the defendant has continuously reoffended (Humphrey). The trial court's stated reasons, the eighth felony conviction, multiple intervening prison terms, and a current serious felony support the conclusion that Bailey falls within the spirit of the Three Strikes law, so the ruling is well within the court's discretion. |
Rejection of argument that Proposition 36 reflects a voter intent making it easier to strike prior strikes“We also note that Bailey was sentenced as a "second strike offender." Thus, Proposition 36 has no relevance to the issues in this case.” | de novo | correct | agree with court Proposition 36 changed sentencing for third-strike offenders whose current offense is not serious or violent; it did not amend section 1385 or the Romero/Williams framework. Bailey's current offense is a statutorily serious felony and he received a second-strike sentence, so the Act has no bearing on the discretion exercised here, and the argument was presented without authority. |
Authorities
- relied: People v. Superior Court (Romero) (1996) 13 Cal.4th 497 — Trial courts retain discretion under section 1385 to strike prior strike convictions in furtherance of justice.
- relied: People v. Williams (1998) 17 Cal.4th 148 — In ruling on a motion to strike a prior, the court must consider the nature of present and prior offenses and the defendant's background, character, and prospects to decide whether he falls outside the spirit of the Three Strikes law.
- relied: People v. Carmony (2004) 33 Cal.4th 367 — Denial of a Romero motion is reviewed for abuse of discretion and the defendant bears the burden to show the decision was irrational or arbitrary.
- relied: People v. Rodrigues (1994) 8 Cal.4th 1060 — A trial court's section 1385 ruling is reviewed for abuse of discretion.
- relied: People v. Humphrey (1997) 58 Cal.App.4th 809 — Remoteness of a prior strike alone does not justify striking it where the defendant has not led a legally blameless life in the interim.
- relied: People v. Yearwood (2013) 213 Cal.App.4th 161 — Proposition 36 reserves indeterminate third-strike sentences for cases where the current offense is serious or violent or a disqualifying factor is pled and proved; otherwise the defendant is sentenced as a second-strike offender.
The appellate opinion: sound — The court applied the correct abuse-of-discretion standard and the Williams/Carmony factors, and the record it quotes (continuous reoffending, multiple prison terms, eighth felony, current serious felony) plainly supports the trial court's ruling. Its disposal of the Proposition 36 argument is brief but correct because the Act did not alter section 1385 discretion and did not affect second-strike sentencing for a serious felony.
Opinion
Filed 2/24/15 P. v. Bailey CA4/1 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 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065879
Plaintiff and Respondent, v. (Super. Ct. No. SCD251987)
JEFFREY LEE BAILEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Frederic L.
Link, Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Jeffrey Lee Bailey of one count of burglary of an inhabited dwelling (Pen. Code,1 §§ 459, 460) and one count of vandalism, a misdemeanor (§ 594, subds. (a), (b)(2)(A)). The trial court found true a prior serious felony conviction (§ 667, subd. (a)(1)) and one strike prior (§ 667, subds. (b)-(i)). The trial court denied Bailey's motion to strike the "strike" prior and sentenced Bailey to a determinate term of 13 years in prison.
Bailey appeals challenging only his sentence. He contends the trial court abused its discretion in declining to strike his 1992 serious/violent felony conviction (§ 667, subds. (b)-(i)). Although the strike prior was remote in time, the trial court denied the motion to strike it because Bailey had been constantly committing crime since his 1992 conviction and had been to prison multiple times in the interim. We will find no abuse of discretion and affirm.
STATEMENT OF FACTS
Since this appeal does not challenge either the admissibility or the sufficiency of the evidence to support the convictions we will only set forth a very brief summary of the facts of the offenses.
At about midnight on May 22, 2013 a family returned home from a vacation.
They lived in the upstairs portion of a duplex in Ocean Beach. They discovered their storage cabinets and lockers in the carport had been opened and items taken. They also 1 All further statutory references are to the Penal Code unless otherwise specified. 2 discovered pry marks on their back door where someone had attempted to enter the dwelling.
The family encountered Bailey, his codefendant Bryce Schlect, and a woman who were in the process of taking items and placing them in a white van parked nearby.
Bailey and his compatriots were able to get away. Police discovered a pair of bolt cutters, a pry bar and a pair of gloves. The bolt cutters had Schlect's DNA on it and the gloves had Bailey's DNA on the interior of the gloves. The van was registered to Schlect.
DISCUSSION
Bailey does not challenge his convictions. He only challenges the trial court's decision to deny his motion under section 1385 to dismiss his strike prior. He contends that the prior conviction relates to a residential burglary conviction in 1992 and is thus so remote that the trial court abused its discretion in declining to strike it. We disagree.
A. Legal Principles When a person has been convicted of a felony and a prior serious/violent felony conviction under section 667, subdivisions (b) through (i), has been pled and proved, a court may still strike it for sentencing purposes under section 1385, subdivision (a) in the "furtherance of justice." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) We review the trial court's decision to grant or deny a motion to strike the prior under the abuse of discretion standard. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).)
The Supreme Court has set standards for trial court consideration of motions to dismiss strike priors. (People v. Williams (1998) 17 Cal.4th 148, 159-161(Williams).)
3 Trial courts may not strike such priors merely to avoid the sentence mandated by the Legislature for persons who commit new felony offenses with the requisite prior convictions. Rather the court must consider the defendant's criminal history, the nature of the offenses, character and prospects for rehabilitation. (Id. at p. 161; Carmony, supra, 33 Cal.4th at pp. 376-377.)
When the trial court deals with strike priors that are remote in time, the court may not strike it merely because it is remote. Rather the court must look at the defendant's behavior from the time of the prior to the time of the current offense. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Where a defendant has continuously committed criminal offenses during the period from the strike prior until the current offense, the court can consider even minor offenses to indicate the defendant comes within the spirit of the Three Strikes Law. (Williams, supra, 17 Cal.4th at p. 163.)
B. Analysis When the trial court denied the motion to strike he said, in part:
"Okay. I am not going to strike the strike. If this man had been law abiding since 1992 or had one or two times, that's fine. But this guy has been in prison at least two or three times since the strike. And you know, that's what the strike is all about. That is what the strike is all about. If he had been, you know, arrest free or whatever I would say fine, but, you know, the course of conduct just keeps on going so I am not going to strike the strike in this case."
It is clear the court was aware of its discretionary authority, but elected not to exercise his discretion because of Bailey's continuous criminal behavior since his 1992 conviction. The record indicates the current conviction is Bailey's eighth felony conviction and thirteenth criminal conviction. The current offense is a serious felony 4 involving burglary of an inhabited dwelling. A reasonable trial judge could very easily conclude Bailey comes fully within the spirit of the Three Strikes Law as discussed in Williams, supra, 17 Cal.4th 148.
Without citation of authority, Bailey further argues that since Proposition 36 ameliorated the most draconian features of the strikes law, we should conclude the public intended to make it easier for trial courts to dismiss the strike priors. We find no support for that argument.
As one court summarized the effect of Proposition 36: "The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor.
In all other cases, the recidivist will be sentenced as a second strike offender." (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
In the present case we note the current felony is statutorily determined to be a serious felony, not withstanding Bailey's efforts to diminish its factual "seriousness." We also note that Bailey was sentenced as a "second strike offender." Thus, Proposition 36 has no relevance to the issues in this case. Nor has Bailey shown any basis for a finding of an abuse of discretion in this case.
5 DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
Cites, in this corpus
- People v. Yearwood No. F063712 · 2013-01-29
- People v. Carmony No. S115090 · 2004-07-08
- People v. Williams S057534 · 1998-01-05
- People v. Humphrey B110962 · 1997-10-23
- People v. Superior Court (Romero) S045097 · 1996-06-20
- People v. Rodrigues S007779 · 1994-12-01