People v. Tomblinson CA3 ( 2015 )


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  • Filed 4/8/15 P. v. Tomblinson 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    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
    (Shasta)
    ----
    THE PEOPLE,                                                                             C077124
    Plaintiff and Respondent,                                  (Super. Ct. Nos.
    11F1859, 12F8026, 13F1725)
    v.
    TOMAS WILLIAM TOMBLINSON,
    Defendant and Appellant.
    Sentenced to state prison for an aggregate term of six years, defendant Tomas
    William Tomblinson appeals, contending the trial court abused its discretion in denying
    his request to strike his strike prior. We conclude that the trial court did not abuse its
    discretion and will affirm the judgment.
    1
    FACTUAL AND PROCEDURAL BACKGROUND
    During a patdown search on January 9, 2011, an officer found four syringes in
    defendant’s pocket and a metal spoon with white residue. At the jail, an officer found 1.5
    grams of methamphetamine in defendant’s underwear.
    In case No. 11F1859, defendant entered a plea of guilty to possession of
    methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted a strike prior
    (Pen. Code, § 1170.12)1 [1996 arson of another person’s property (§ 451, subd. (d))] in
    exchange for drug probation (§ 1210.1 et seq.) and dismissal of the remaining counts and
    allegations. The court placed defendant on drug probation.
    On November 12, 2012, a search of a vehicle in which defendant was riding as a
    passenger revealed a suitcase with how-to guides on assembling firearms and a
    .22-caliber Ruger pistol with an obscured serial number.
    In case No. 12F8026, defendant entered a plea of guilty of being a convicted felon
    in possession of a firearm (§ 29800, subd. (a)) and admitted a strike prior [the 1996
    arson] in exchange for dismissal of the remaining count. Based on this new offense,
    defendant admitted violating probation in case No. 11F1859.
    Defendant failed to appear in case No. 12F8026 on March 7, 2013, as directed.
    In case No. 13F1725, defendant entered a plea of no contest to failure to appear
    (§ 1320, subd. (b)) in exchange for dismissal of the remaining allegations and an eight
    year eight month sentencing lid for the three cases.
    In preparation for sentencing the probation officer recounted defendant’s criminal
    history. In addition to defendant’s three current felony convictions, defendant’s prior
    felony convictions included the following three: (1) a 1996 drug conviction (Health &
    Saf. Code, § 11360, subd. (a)); (2) the 1996 arson; and (3) a 2006 drug conviction (Health
    1 Undesignated statutory references are to the Penal Code.
    2
    & Saf. Code, § 11350, subd. (a)). Defendant had numerous misdemeanor convictions
    (Pen. Code, § 647, subd. (f) in 1994; Pen. Code, § 594, subd. (a) in 1996; Veh. Code,
    § 23152, subd. (b) in 2002; Health & Saf. Code, § 11377, subd. (a) in 2003; Health &
    Saf. Code, § 11364 and Veh. Code, § 14601.1, both in 2004; Pen. Code, § 417.4 in 2005;
    and Health & Saf. Code, § 11364 in 2006) and probation violations. Defendant was 38
    years old, had used various illegal drugs for over 25 years, and failed to complete
    treatment when given the opportunity in case No. 11F1859 (he had two violations of drug
    treatment probation; to wit, he sustained a contempt of court charge for failure to appear
    and failed to submit to a chemical test). He had not worked the previous two years.
    In requesting that the trial court strike the strike prior, defendant argued his current
    offenses were not serious or violent, his strike prior was remote, his criminal history was
    nonviolent, he was remorseful and took responsibility, and that he had been free from
    custody for a substantial period of time before the current offenses. He also challenged
    his punishment under the three strikes law as disproportionate to his offenses.
    The prosecutor opposed defendant’s request to strike the prior, citing defendant’s
    contacts with the criminal justice system and arguing defendant’s strike prior was not
    remote since defendant had been on probation or in prison without a substantial break
    during the 15 years prior to defendant’s plea in case No. 11F1859.
    In denying defendant’s request to strike the strike prior, the trial court took into
    consideration the underlying facts of the current offenses (finding the firearm possession
    to be aggravating, violent, and potentially dangerous) as well as the nature and
    circumstances of the strike prior (aggravating since there was a considerable amount of
    anger, violence, and danger), and determined the firearm possession and strike prior were
    similar. With respect to defendant’s background, the trial court noted defendant was not
    able to keep a job when not incarcerated, “bum[ming] off his friends and relatives,” and
    3
    “pick[ing] up crimes,” reflecting a negative background. While the arson prior was
    “old,” the trial court noted that defendant had not improved his life since then.
    After denying defendant’s request to strike the strike prior, the court imposed a
    six-year state prison sentence: four years (midterm of two years, doubled for the strike
    prior) for convicted felon in possession of a firearm (case No. 12F8026), a consecutive
    16-month term (one-third the midterm or eight months, doubled for strike prior) for
    possession of methamphetamine (case No. 11F1859), and a consecutive one-third the
    midterm or eight months for failure to appear (case No. 13F1725).
    DISCUSSION
    Defendant contends the trial court abused its discretion in failing to strike his
    strike prior because his criminal record since his 1996 arson conviction consisted “by and
    large [of] simple drug offenses,” not violent offenses, and that he “should have received
    ongoing drug treatment.” We find no abuse of discretion.
    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.” ’ ” (People v. Carmony (2004)
    
    33 Cal.4th 367
    , 377 (Carmony).) The trial court considers “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.)
    Dismissal of a strike prior is a departure from the sentencing norm. (Carmony,
    
    supra,
     33 Cal.4th at p. 378.) “[A] trial court’s refusal or failure to dismiss or strike a
    prior conviction allegation under section 1385 is subject to review for abuse of
    4
    discretion.” (Carmony, at p. 375.) “[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.) 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
    trial court’s ruling, even if we might have ruled differently in the first instance.’ ” (Id. at
    p. 378.)
    The trial court was aware of its discretion to strike defendant’s strike prior and did
    not abuse that discretion in declining to do so. The court reviewed the record and did not
    find that defendant fell outside the spirit of the three strikes law. True, defendant’s
    current offense of drug possession is not serious. But “the nonviolent or nonthreatening
    nature of the felony cannot alone take the crime outside the spirit of the law.” (People v.
    Strong (2001) 
    87 Cal.App.4th 328
    , 344.) Defendant was given the opportunity to
    complete drug treatment but he sustained two violations (contempt of court; failure to
    submit to chemical test) as well as the possession of a firearm conviction. Defendant’s
    current firearm possession was deemed by the trial court to be both violent and dangerous
    and similar to defendant’s strike prior conviction for arson of another person’s property.
    Although defendant’s strike prior offense occurred in 1996, the prior was not remote
    because it was followed by a continuous life of crime. (People v. Humphrey (1997)
    
    58 Cal.App.4th 809
    , 813 [“Where, as here, the defendant has led a continuous life of
    crime after the prior, there has been no ‘washing out’ and there is simply nothing
    mitigating about a 20-year-old prior.”].) Defendant’s recent offenses and his life of crime
    place him within the spirit of the three strikes law. We find no abuse of discretion.
    5
    DISPOSITION
    The judgment is affirmed.
    BUTZ   , J.
    We concur:
    BLEASE             , Acting P. J.
    DUARTE             , J.
    6
    

Document Info

Docket Number: C077124

Filed Date: 4/8/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021