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People v. Banks1/24/2003
ecution was deferred for revocation of parole.
In 1991 appellant was convicted of resisting a peace officer and placed on probation, which was later reinstated with additional jail time. After an arrest later that year, he was convicted in early 1992 of felonious assault and was placed on probation. He was sentenced to prison later in 1992 upon his conviction of being a felon in possession of a firearm, and received a concurrent term for a subsequent conviction of infliction of corporal injury on a spouse or cohabitant.
In 1995 appellant was convicted of making criminal threats, the strike prior, and was placed on probation, which was revoked. He was thereupon sentenced to three years in prison. He was sentenced to prison again in 1998 following a conviction of being a felon in possession of a firearm. He was paroled a year before the commission of the instant offense.
The trial court declined to strike appellant's prior conviction, observing that a recent case had held that the prior offense did not have to be violent and that although the court had discretion to strike a prior conviction, "it must be within the spirit of the three strikes law." The court ruled, "And in this case I would find, based on the record, his record, and on the facts that came out in the trial, he is clearly within the spirit of the three strikes law. And for me to hold otherwise would be a clear misreading of the cases -- the Romero and the one that came down a couple weeks ago. [ ] So the motion to strike will be denied for those reasons."
The standards for evaluating the trial court's determination of a motion to strike a prior conviction in furtherance of justice under Penal Code section 1385 are by now well known. The trial court must take into consideration the defendant's background, the nature of his current offense, and other "`individualized considerations.'" (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) " reponderant weight must be accorded to factors intrinsic to the [three strikes] scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (People v. Williams (1998) 17 Cal.4th 148, 161.) In deciding whether to strike a prior conviction, and in reviewing a trial court's ruling, "the court in question 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." (Ibid.) The defendant's criminal history is among the relevant factors to be considered. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979.)
"`The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . 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.'" (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.)
The trial court considered the arguments of counsel and concluded that even if appellant had not inflicted violence in the current offense, he was clearly within the spirit of the three strikes law because of his record, including the fact, as the prosecutor argued, that the strike prior was a very similar offense to the instant
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