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People v. Mitchell5/29/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Kenneth Lavern Mitchell was charged by information with felony transportation, sale, or distribution of a controlled substance (Health & Saf. Code, § 11352, subd. (a) - count 1), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364 - count 2). The information further alleged that defendant had suffered five prior convictions that qualified as strikes. (Pen. Code, § 1170.12.) On November 5, 2001, defendant admitted the strike priors and on November 6, defendant entered guilty pleas to the new offenses. On January 3, 2002, defendant filed a motion to dismiss the strike priors pursuant to section 1385, subdivision (a). On January 15, the court denied the motion and sentenced defendant to state prison for 25 years to life on count 1, with a concurrent six-month jail sentence on count 2. Defendant timely appealed from the judgment. (Cal. Rules of Court, rule 31(d).)
Defendant argues on appeal that, (1) the trial court misunderstood its sentencing discretion and therefore failed to exercise its discretion to dismiss the strikes; (2) the trial court considered impermissible information in making its sentencing decision; (3) the trial court failed to exercise informed discretion; (4) trial counsel rendered ineffective assistance; (5) cumulative errors at sentencing require reversal of the sentence; and (6) his sentence constitutes cruel and unusual punishment. We find no error requiring reversal and therefore affirm. Defendant has also filed a petition for writ of habeas corpus, which this court previously ordered considered with the appeal. We have disposed of the petition by separate order filed this day. (See rule 24(b)(4).)
FACTS
The following summary of the offenses is taken from the probation report. On June 12, 2001, at approximately 1:50 p.m., an undercover San Jose police officer was in the known high drug traffic area of South Second Street and Fountain Alley when defendant and Manjaroe Hampton walked by. Defendant made eye contact with the officer, approached him, and asked him what he wanted. The officer stated that he wanted a "twenty." Defendant turned toward Hampton and said, "Give him a rock." Hampton handed an off-white rock to Mitchell who placed it next to the officer's hand that was resting in the dirt of a tree planter. The officer picked it up and left two pre-recorded $10 bills in its place.
Mitchell asked the officer for a "bump," but the officer denied the request. As the officer left, an arrest team arrested both defendant and Hampton. Hampton possessed $163 in cash. Defendant had the two $10 bills the officer had left him in his shirt pocket along with a clear glass pipe with a brillo pad. Crime laboratory tests confirmed that the off-white rock contained cocaine base and weighed .17 grams.
DISCUSSION
At the hearing on defendant's motion to dismiss his strikes, defendant asked to address the court and the court allowed him to do so. Defendant briefly stated that he knew that it was his drug use that brought him there, and he apologized "for causing all those problems." The court responded, "I have sympathy for your situation, but unfortunately the Romero[ ] case prohibits a Judge using his sympathy or resistance to the "Three Strikes" law in situations such as this to interfere with the proper dispos
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