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People v. Carmony2/28/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Keith Ishmeal Carmony pleaded guilty to failure to register as a sex offender (Pen. Code, § 290, subd. (g)(2)) and admitted three prior strikes under section 1170.12 (the Three Strikes law) and a prior prison term enhancement (§ 667.5, subd. (b)). The trial court sentenced him to state prison for an aggregate term of 26 years to life.
On appeal, defendant claims the trial court abused its discretion by declining to grant Romero relief and by sentencing him as a third-strike offender for failing to confirm the accurate information already provided to law enforcement with respect to defendant's registration as a sex offender. We agree that under the particular circumstances of this case, the trial court erred by imposing the indeterminate term reserved for third-strike offenders. Accordingly, we shall remand the matter to the trial court for resentencing. In light of our decision, it is unnecessary to directly address defendant's additional argument that his current sentence is unconstitutional.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Criminal Record
At the outset, it must be acknowledged that defendant's criminal record is serious. Defendant's prior strike offenses stemmed from a 1983 conviction for oral copulation by force or fear, or with a minor under age 14 (§ 288a, subd. (c) [see Stats. 1982, ch. 1111, § 5]) and a 1993 conviction for two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245 (a)(1)). According to information in the probation report, the 1983 conviction arose from an incident in which defendant became angry with his girlfriend, picked her 9-year-old daughter up from school, and sexually assaulted the girl. The 1993 offenses arose from separate incidents in which defendant assaulted two girlfriends. In one incident, defendant punched and kicked the pregnant victim multiple times, ultimately causing a miscarriage. In the other, defendant pushed and punched the victim, then cut her hand with a kitchen knife.
Defendant's criminal record includes other convictions. Defendant was convicted of second degree burglary in 1977 and 1978 (§ 459), petty theft with a prior in 1985 (§ 666), violations of section 148 in 1988 and 1991, driving under the influence (DUI) in 1988 and another DUI, with a prior, in 1992 (Veh. Code, § 23152, subd. (a)). In 1990, defendant was convicted of a trespassing offense (§ 602, subd. (l)), petty theft (§ 488) and failure to register as a sex offender (§ 290).
In 1997, he was convicted of another registration violation under section 290 and was sentenced to state prison for 32 months. He committed several parole violations in the 1980s and 1990s, including violations unrelated to the commission of new offenses.
B. Background and Current Offense
Defendant was married in 1999. He was 40 years old at the time of the current offense, which was committed that same year. He had a history of drug and alcohol abuse, and his parole officer indicated he became violent when he was under the influence. Defendant himself reported that his prior criminal conduct and parole violations were related to his use of alcohol, and he admitted to also using drugs. Defendant attended Alcoholic's Anonymous meetings for a period of time around the time of the current offense, but he committed a paro
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