Opinion
C079468
06-16-2017
THE PEOPLE, Plaintiff and Respondent, v. JIMMIE GARRETT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F05534)
Defendant Jimmie Garrett came to the attention of law enforcement after his estranged wife reported an alleged domestic violence incident and informed officers that defendant was a convicted felon who grew marijuana and kept guns in his home. Officers later located multiple firearms and multiple marijuana grows after executing a search warrant at his property.
Based on the contraband found during the search, defendant was convicted of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1), count 1; unless othewise set forth, statutory references that follow are to the Penal Code), possession of ammunition by a felon (§30305, subd. (a)(1), count 2), unlawfully cultivating marijuana (Health & Saf. Code, § 11358, count 3), and possessing more than 28.5 grams of marijuana (Health & Saf. Code, §11357, subd. (c)) as a lesser included offense to possession of marijuana for sale (Health & Saf. Code, § 11359, count 4). In a bifurcated proceeding, the court found defendant had suffered two prior serious or violent felony convictions. (§§ 667, subds. (b)-(i), 1170.12, subd. (a).) After denying his motion to strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and granting the prosecution's request to dismiss the oldest strike for purposes of sentencing, the court sentenced defendant on count 1 to the middle term of two years, doubled to four years for the strike prior, and to concurrent terms of two years each, doubled, for counts 2 and 3. The court stayed punishment on count 4 under section 654.
On appeal, defendant contends the court erroneously (1) admitted evidence protected by the spousal communication privilege for impeachment, (2) denied him the opportunity to present a collective-cultivation defense under Health and Safety Code section 11362.775, and (3) abused its discretion in failing to strike his strike priors under Romero. We agree the court erred in admitting defendant's recorded telephone call with his wife to impeach him, but conclude the error was harmless. We further conclude the court properly precluded defendant from relying on a collective-cultivation defense following a hearing under Evidence Code section 402 because defendant failed to proffer sufficient evidence to support such a defense. The court also did not abuse its discretion in denying defendant's Romero motion. We therefore affirm the judgment.
FACTS AND PROCEEDINGS
Late one evening in August 2012, officers executed a search warrant at defendant's rural home in Herald, California. Defendant, a convicted felon, was home with his son, who was visiting from college, and his son's girlfriend. Defendant told police no one else lived at the house.
A single family home plus three outbuildings were located on the property. Officers found four firearms, a .357 revolver, two rifles, and one shotgun, in the house. The revolver was loaded with six .357 Magnum rounds. The guns were located in the closet of a spare bedroom with no bed. Several pieces of mail addressed to "Jimmie Garrett" were also found in the bedroom.
According to Officer Tonn, the spare bedroom door was open (although he acknowledged he was not the first officer in the house), and it did not appear to have a lock. The door did not appear to have been forced open when he observed it.
In defendant's master bedroom, officers found ammunition that fit in the .357 revolver, the shotgun, and one of the rifles. Additional loose ammunition was also found in the master bedroom closet, including rifle, shotgun, and .357 Magnum rounds. Over $1,900 was also found in a drawer in defendant's nightstand.
Defendant told Officer Tonn that he was aware the guns and the ammunition were in his house, but that the rifle and shotguns were left by a friend who had moved out and the revolver was his ex-wife's. He said the ammunition found in his master bedroom closet was "just old ammunition that he still had." Defendant never told officers that the spare bedroom was always locked and that he did not have access to the guns.
One of the outbuildings contained over 100 immature marijuana plants growing under artificial lighting. Another contained about 150 mature marijuana plants equipped with hydroponic technology. The third outbuilding contained marijuana buds and remnants, and equipment or apparatus used in processing marijuana. A refrigerator in a garage attached to the residence contained two plastic bags with marijuana, one of which contained 232.5 grams, or nearly a half pound.
Defendant was charged with one count of possession of a firearm by a felon (§ 29800, subd. (a)(1), count 1), possession of ammunition by a felon (§ 30305, subd. (a)(1), count 2), cultivation of marijuana (Health & Saf. Code, § 11358, count 3), and possession of marijuana for sale (Health & Saf. Code, § 11359, count 4). Two prior serious or violent felony convictions were also alleged.
At trial, several officers who executed the search warrant testified to the above-described events. Based on a hypothetical tracking the facts of the case, the People's expert in marijuana cultivation and possession of marijuana for sale opined that marijuana grown consistent with the circumstances found at defendant's property would be cultivated for the purpose of sale. According to the expert, a half-pound of marijuana is a useable amount, and would have a street value of several hundred dollars. The 150 mature plants could potentially produce 1 pound of marijuana each, for a total of 150 pounds. A pound of marijuana might fetch anywhere from $700 or $800 up to $3,500. He explained that it is common for individuals who cultivate and possess marijuana for sale to have firearms to protect their crop.
Defendant sought to present a collective-cultivation defense under Health and Safety Code section 11362.775 at trial. The court held a hearing under Evidence Code section 402 outside the jury's presence to determine whether defendant would be permitted to present the defense. At the section 402 hearing, defendant testified that when the police searched his property he had a physician-issued Proposition 215 card for personal marijuana use, and that he had had one for approximately nine years. The marijuana found in his freezer and the marijuana plants growing on his property were for his personal use. He smoked the marijuana and used it in edibles, which required greater amounts of the drug.
He sometimes donated marijuana that exceeded his personal needs to various dispensaries, including one in Sacramento and a few in Oakland, although he had no records showing any donation amounts. He sometimes received monetary compensation for his donations, but only enough to cover growing or travel expenses. Defendant had "no idea" how the dispensaries were run, how membership contributions were tracked, or whether or not they were for-profit or nonprofit enterprises. Other than a Google Map printout showing the dispensary locations, he proffered no documentary evidence or other records concerning the dispensaries. Although nearly three years elapsed since the charges were filed in 2012 and trial commenced in 2015, he did not attempt to get records from the dispensaries until trial began. He was unsuccessful in doing so.
Defendant's expert on medical marijuana for personal use and donation or sale to dispensaries, Ryan Landers, also testified at the section 402 hearing. According to him, marijuana growers routinely donate excess marijuana to collectives because a grower who wants to assure sufficient supply will commonly have excess on hand. Only "member[s]" of a collective may donate marijuana to that collective, and collectives do not always furnish receipts. In his opinion, defendant was a properly qualified patient to use medical marijuana, and the marijuana found during the search was consistent with personal medical use. He did not see evidence of sales.
Following the section 402 hearing, the court ruled defendant had presented sufficient evidence to assert a defense under the Compassionate Use Act of 1996 (CUA) that he possessed and cultivated marijuana for his own personal use. (Health & Saf. Code, § 11362.5 [criminal statutes proscribing marijuana possession and cultivation do not apply to patients who possess or cultivate marijuana for their personal medical purposes upon a doctor's written or oral recommendation or approval].) The court ruled defendant failed to proffer sufficient evidence to assert a collective-cultivation defense under the Medical Marijuana Program Act (MMPA), however. (Health & Saf. Code, § 11362.775 [MMPA affords defense to qualified patients and caregivers who associate to cultivate medical marijuana].) In barring the collective-cultivation defense, the court found defendant failed to present sufficient evidence that he was a member of a cooperative, or that any of the places he allegedly donated to were non-profit cooperatives. In so ruling, the court noted the complete lack of records showing business status or donations.
With the exception of evidence related to the barred collective-cultivation defense, Landers offered similar testimony on defendant's behalf before the jury. Defendant's cousin, Sidney Hayes, also testified for defendant. According to Hayes, he lived with defendant in 2010 or 2011. He generally stayed in the spare bedroom, but sometimes slept in defendant's room when he was gone. To protect livestock on the property from wild animals, Hayes initially got two rifles and a shotgun, and later he obtained a revolver from defendant's ex-wife. Defendant knew the guns were in the house.
All of the guns were kept in the closet of the spare bedroom, which Hayes characterized as his bedroom. He kept his bedroom locked whenever he was not at the house, and he was the only one that had a key to the room. At the time of trial, Hayes "no longer [had] the key." Occasionally, Hayes would take the guns and ammunition into defendant's bedroom, and because he was "forgetful," he might have left ammunition in the room. He conceded defendant had access to the firearms when they were painting and remodeling the room, although he claimed defendant would never touch them. He also admitted that he never contacted police to tell them that the guns were his and that defendant did not have access to the guns because he kept the door locked.
Defendant's son, who shares the same name as defendant, testified he was staying with his father during his summer break from college. Hayes also stayed at the house periodically, although he was not there in August. When leaving the house after police arrived, he noticed that the door to the spare bedroom was closed. Upon returning to the house after the police left, the door looked as if it had been kicked or rammed. He did not report the damaged door to police, nor did he take any photographs.
Defendant testified on his own behalf. At the time of his arrest, he had a physician's recommendation to use medical marijuana, commonly referred to as a Proposition 215 card. He had had a Proposition 215 card for roughly nine years. All of the marijuana found on his property was for his personal use; he did not plan on selling any of it. He usually smoked marijuana and used it in edibles, which required larger quantities. He kept large amounts of cash to pay for gas for the long-haul truck he drove. The spare bedroom door was usually closed and locked. He admitted telling the officers he knew the guns were in the house, but denied that they were his. Although he told police the ammunition found in his closet was old, at trial he testified that he did not know the ammunition was in the closet. He admitted he was not allowed to have firearms because he had been convicted of three felonies.
On cross examination, the prosecutor impeached defendant with confidential statements, made to his ex-wife while they were still married, that he kept guns at the house for their protection due to several previous burglary attempts. The court had previously ruled the statements inadmissible in the prosecution's case in chief. Although he admitted making the statements, he testified he was referring to different guns than those confiscated from his home.
The jury found defendant guilty of counts 1 through 3, and guilty of misdemeanor marijuana possession as a lesser included offense to count 4. The court found true both alleged strike priors. The court denied defendant's request to dismiss his prior strikes under Romero. The People dismissed one strike for purposes of judgment and sentencing, and the court sentenced defendant on count 1 to the middle term of two years, doubled to four years for the strike prior, and to concurrent terms of two years each, doubled, for counts 2 and 3. The court stayed punishment on count 4 under section 654. Defendant timely appealed.
DISCUSSION
I
Impeachment with a Protected Marital Communication
The confidential spousal communication privilege grants a spouse a "privilege during the marital . . . relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses." (Evid. Code, § 980.) Defendant contends the court abused its discretion and violated his constitutional due process rights by allowing the prosecution to impeach him with statements about guns that he made to his ex-wife while they were still married, which were protected by the spousal privilege.
The People concede, and we agree, that the court erred in admitting the evidence because the statements, which defendant did not know were being recorded, were made in confidence during the marital relationship and no exception to the privilege for impeachment purposes applies. (People v. Mickey (1991) 54 Cal.3d 612, 654-655; cf. People v. Cannata (2015) 233 Cal.App.4th 1113, 1123 [privileged communication between a psychotherapist and patient may not be admitted for impeachment purposes where the patient elects to testify at trial]; Evid. Code, §§ 981-987.) We thus turn to whether the court's error requires reversal.
The parties, not surprisingly, differ on the applicable standard for evaluating the error. According to defendant, the error was so serious that it rendered the trial fundamentally unfair and was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 .) In his view, the error undermined his only defense to the firearms and ammunition charges alleged in counts 1 and 2--that he did not exercise dominion and control over the guns and ammunition. He also claims the evidence damaged his credibility because the statements could be construed as admissions that he in fact exercised dominion and control over the guns and he testified to the contrary.
The People, by contrast, contend the error is harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), the less stringent standard for state law errors. Under that test, state law error in admitting evidence is subject to reversal only if it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (People v. Partida (2005) 37 Cal.4th 428, 439.)
The People have the better argument. Our Supreme Court has applied the Watson test in determining the prejudicial effect, if any, of privileged information that was erroneously admitted. (See e.g., People v. Michaels (2002) 28 Cal.4th 486, 538 [attorney-client privilege]; People v. Clark (1990) 50 Cal.3d 583, 623 [same].) We discern nothing that would lead us to apply a different standard for the spousal communication privilege at issue here.
Although defendant argues otherwise, this case does not present "one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant's trial fundamentally unfair." (People v. Albarran (2007) 149 Cal.App.4th 214, 232 [improper admission of significant gang evidence, which was extremely and uniquely inflammatory].) " 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate [federal] due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." ' " (Id. at p. 229.) Although defendant did admit that he told his ex-wife he kept guns in the house because their home had been burglarized on several occasions, he testified that he was not referring to the four guns alleged in the information. Instead, he explained that he was referring to different guns they had owned in the past. If credited, the jury reasonably could have believed defendant was in fact referring to different firearms than those charged. As there was a permissible inference the jury could draw from the evidence, and the evidence was not otherwise "extremely and uniquely inflammatory," any error in admitting the evidence did not rise to the level of a federal constitutional due process violation. The Watson state law error test therefore applies.
Applying that test here, we conclude it is not reasonably probable that the verdict would have been more favorable to defendant absent the error. The jury was instructed that to find defendant guilty of unlawful possession of a firearm and ammunition, it had to find defendant possessed the contraband. Although knowledge and access alone were insufficient to prove possession (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 [mere proximity to a weapon, standing alone, insufficient to establish possession]), exercising control over the items personally or through someone else was sufficient. "Possession may be physical or constructive, and more than one person may possess the same contraband." (People v. Williams (2009) 170 Cal.App.4th 587, 625 [possession of firearms and methamphetamine].) " 'Conviction is not precluded . . . if the defendant's right to exercise dominion and control over the place where the contraband was located is shared with another. [Citations.]' " (Ibid.)
Here, defendant admitted to police that he was the only person who lived in the house where the guns and ammunition were found. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1030 [noting that a parolee who lived alone in a house with a firearm next to his bed would be "in possession of the firearm" because it is under his dominion and control].) Defendant also admitted knowing both the guns and the ammunition were in the house.
The ammunition was found in defendant's bedroom closet. While at trial defendant claimed he did not know about the ammunition, the night of the police raid he did not disavow ownership or control over the ammunition when questioned by police; rather, he merely described the ammunition as "old." The ammunition found in the closet fit all four guns found in the spare bedroom.
Furthermore, mail addressed to "Jimmie Garrett" was found in the spare bedroom. Although defendant's son was also named Jimmie Garrett, he testified that he "never [went] in the [spare bed]room." Thus, it is highly unlikely a reasonable jury would have found the mail belonged to him.
Although defendant's son testified that the door jamb to the spare bedroom lock was damaged during the raid, neither he nor defendant ever reported the alleged damage to police. Such evidence contrasts starkly with evidence in the record showing defendant did complain to police that they had damaged a speaker during the search, and the officer documented the purported damage with photographs. The officer testified that defendant did not report any other alleged damage, and, in particular, he did not complain that the door jamb to the spare bedroom door had been broken. Officer Tonn, moreover, testified that the door was open when he entered the house and that it did not appear to have a lock or any damage to suggest it had been forced open by the SWAT team that cleared the house.
Defendant's cousin conceded that he and defendant were remodeling the spare bedroom and that defendant had access to it during the process. He also admitted to leaving the door unlocked when he was in the house. Although Hayes claimed he always locked the door when he was not at the house, he could not produce the key at trial, claiming without explanation that he no longer had it.
Both defendant's son and his cousin had an obvious interest in testifying favorably for him, while the police officers, by contrast, were disinterested witnesses. The jury reasonably could, and no doubt did, credit the officers' testimony over those who had a close, personal relationship with defendant, and, hence, a stake in the outcome of trial.
Defendant also testified that he told Hayes where he could and could not shoot the guns on the property. This evidence tended to prove that defendant not only knew about the guns and had access to them, but that he exercised dominion and control over use of the weapons through Hayes.
Defendant was also convicted of illegally cultivating and possessing marijuana, and the evidence showed a large marijuana operation on defendant's property. The firearms and ammunition, which were in the house, were found in relatively close proximity to the illegal drugs, which were located in the attached garage and nearby outbuildings. Because defendant admitted he knew of the guns, the jury could infer that the presence of the firearms "together with the drugs was not accidental or coincidental," and that "at some point during the period of illegal drug possession, the defendant had the firearm[s] close at hand and thus available for immediate use to aid in the drug offense." (People v. Bland (1995) 10 Cal.4th 991, 995.)
Given the above evidence, we do not believe it is reasonably probable the result would have been different had defendant not been improperly impeached with the confidential statements regarding guns. This is especially so since whatever impact the evidence had was tempered by defendant's explanation that he was referring to different guns when speaking with his wife. His claim that his credibility was undermined disregards the fact that as a convicted felon, the jury was already entitled to view his testimony with caution.
II
Collective-Cultivation Defense
Defendant contends the court erred by not allowing him to present a defense under Health and Safety Code section 11362.775, which protects qualified individuals who associate to cultivate medical marijuana. He claims he met his burden of production at the section 402 hearing and was entitled to present a collective-cultivation defense.
Evidence Code section 402 provides a procedure whereby a court may "determine outside the presence of the jury whether there is sufficient evidence to sustain a finding of a preliminary fact, upon which the admission of other evidence depends." (People v. Galambos (2002) 104 Cal.App.4th 1147, 1156 (Galambos) [court properly held section 402 hearing on defendant's common law necessity and Proposition 215 defenses].) As Galambos explains, when a section 402 hearing is used "to determine the existence of a defense," the relevant question is "whether all of the elements of [the] . . . defense can be made out before the evidence of that defense is either excluded or admitted" because "the relevance of the proffered defense [] depends upon the existence of facts sufficient to establish the defense['s] elements." (Id. at p. 1157.) Because "no greater burden can be imposed on the defendant at a pretrial section 402 hearing" than the burden the defendant has "to prevail at trial," (People v. Jones (2003) 112 Cal.App.4th 341, 350), the relevant question is whether defendant "produced sufficient evidence" of the elements of a collective-cultivation defense under Health and Safety Code section 11362.775 to create a reasonable doubt whether his cultivation and possession of marijuana was unlawful. (Ibid.; see also People v. Baniani (2014) 229 Cal.App.4th 45, 52 (Baniani).)
Health and Safety Code section 11362.775 provides in relevant part that "qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." (Health & Saf. Code, § 11362.775, subd. (a).) To establish a collective-cultivation defense under section 11362.775, "a defendant [must] show that members of the collective or cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise." (People v. Jackson (2012) 210 Cal.App.4th 525, 529 (Jackson).) A defendant bears a minimal burden to produce sufficient evidence to raise a reasonable doubt as to whether the elements of the defense have been established. (Id. at p. 533.) "In determining whether that minimal burden has been met" and evidence of the defense should be permitted " 'the trial court must leave issues of witness credibility to the jury.' " (Ibid.)
We review de novo the trial court's refusal to permit defendant to present the collective-cultivation defense. (See Galambos, supra, 104 Cal.App.4th at p. 1162.) In doing so, "we need not adopt the trial court's reasons because ' " 'a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' [Citation.]" [Citation.]' " (Ibid.)
The trial court premised its ruling on defendant's failure to present sufficient evidence that he was a member of a cooperative, or that any of the places he allegedly donated to were non-profit cooperatives. The court noted the complete lack of records showing business status or donations.
While the failure to present records from an entity does not automatically preclude a collective-cultivation defense (People v. Orlosky (2015) 233 Cal.App.4th 257, 271), business and financial records for such operations are highly relevant for establishing the defense. (See e.g., People v. Colvin (2012) 203 Cal.App.4th 1029, 1038 [evidence showed dispensary obtained its business licenses, was a nonprofit corporation, and was in the process of complying with then applicable ordinance]; Baniani, supra, 229 Cal.App.4th at pp. 50-52, 60 [evidence showed defendant consulted attorney to start medical marijuana collective as a nonprofit corporation and draft bylaws, he acquired a seller's license from the Board of Equalization, and he did not make a profit on marijuana sold to collective members].) Based on the evidence presented during the section 402 hearing, we agree with the trial court's assessment that defendant's evidence fell well short of that necessary to allow him to present the defense to the jury. (People v. Anderson (2015) 232 Cal.App.4th 1259, 1277 [endorsing conception of section 11362.775 as protecting a medical marijuana collective or cooperative "so long as all members are patients or primary caregivers, all the buying and selling is done on a nonprofit basis within the collective or cooperative, there are no transactions with nonmembers, and the amount cultivated is reasonably necessary for the membership's medical needs"].)
Besides his Proposition 215 card showing that he had a physician recommendation to use medical marijuana, defendant presented no licenses or permits, donation receipts, written membership agreements, or any other business or financial records for the dispensaries to which he claimed he donated. (See e.g., Baniani, supra, 229 Cal.App.4th at pp. 50-51 [collective had permits, bylaws, written membership agreements, and patient records].) Although he was arrested in 2012 and trial did not start until 2015, he made no effort to gather any information or evidence concerning the alleged collectives, their membership, or purported nonprofit status until the eve of trial. Defendant, however, testified that some of the dispensaries were "big corporation[s]" with attorneys. This testimony implies that business and membership records were likely available had defendant actually tried in advance to obtain them. (See e.g., Baniani, supra, 229 Cal.App.4th at pp. 50-51 [defendant consulted attorney to draft collective's bylaws, filed nonprofit articles of incorporation, and drafted membership contracts for individuals to sign prior to becoming members of the collective].)
Defendant acknowledged he had "no idea" how the dispensaries were organized or to whom they dispensed marijuana, or in what amounts. Anderson makes clear, however, that membership of a collective or cooperative must all be qualified patients or primary caregivers and the entity cannot conduct transactions with nonmembers. (Anderson, supra, 232 Cal.App.4th at p. 1277.) Nor did defendant know, or produce any evidence showing, whether the alleged cooperatives made a profit. "A lawful cooperative or collective must indeed be a nonprofit enterprise under section 11362.775," however. (Id. at p. 1282.)
Viewing the totality of the evidence presented at the section 402 hearing, defendant did not carry his burden to raise a reasonable doubt that the elements of the defense had been established. (Jackson, supra, 210 Cal.App.4th at p. 533.) The court, then, did not err in precluding defendant from presenting a collective-cultivation defense at trial.
III
Romero Motion
Defendant contends the trial court abused its discretion by failing to strike one or both of his prior serious or violent felony convictions pursuant to Romero. According to defendant, the court did not consider the nature of his current offenses, which he characterizes as nonviolent, and disregarded the remoteness of his prior strikes. The court did not abuse its discretion in denying defendant's request to strike his strike priors.
A trial court has discretion to strike a prior serious felony conviction only if the defendant falls outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378.) In deciding whether to strike a prior conviction, the court "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." (Williams, at p. 161.)
The trial court's "failure to . . . strike a prior [felony] conviction allegation is subject to review under the deferential abuse of discretion standard." (Carmony, supra, 33 Cal.4th at p. 374.) A trial court abuses its discretion when it refuses to strike a prior felony conviction only in limited circumstances, such as where the court is unaware of its discretion to dismiss or considers impermissible factors in refusing to dismiss, or if the sentencing norm under the three strikes law leads, as a matter of law, to an arbitrary, capricious, or patently absurd result under the circumstances of the individual case. (Ibid.) It is not sufficient to show that reasonable people might disagree about whether to strike a prior conviction. (Ibid.) "[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.)
In this case, the record reveals the trial court was well aware of its discretion to strike defendant's prior felony convictions and that it considered relevant factors in making its decision. More specifically, the court considered, including defendant's constitutional rights and the interests of society, defendant's attitude toward his offenses, the nature and circumstances of his current crimes, defendant's age, criminal history and the age of his previous offenses, the length of time between convictions, his potential for rehabilitation, the presence or absence of actual or threatened violence, any valuable skills defendant possessed and any other individualized factors peculiar to defendant. These factors were appropriate. (Williams, supra, 17 Cal.4th at p. 161.) After thoughtfully evaluating and weighing all the factors, the court found defendant "in the heartland" of the three strikes law. On this record, we cannot say the court abused its discretion.
While the court did find that some factors such as defendant's gainful employment and the time between offenses weighed in defendant's favor, the court also found defendant had an extensive history of criminal behavior, a finding the record supports. Among other offenses, defendant was convicted of voluntary manslaughter (§ 192) in 1987, and possession of cocaine base for sale (§ 11351.5) two years later. In 1993, when defendant was 25 years old, he was convicted of criminal threats. (§ 422.) The following year he was convicted of being a felon in possession of a firearm, one of the same offenses for which he was convicted here. He also suffered multiple parole violations.
Defendant's contention that this criminal history is "not of a violent nature" is questionable. He has been convicted of several very serious offenses. (People v. Adams (2004) 115 Cal.App.4th 243, 259 [manslaughter constitutes "serious" offense]; People v. Thornton (1992) 3 Cal.App.4th 419, 424 ["not all serious injuries are suffered by the body. The knowing infliction of mental terror is equally deserving of moral condemnation"].)
Defendant, moreover, has been twice convicted of being a felon in possession of a firearm. The prohibition against felons possessing firearms is meant to "protect the public welfare by precluding the possession of guns by those who are more likely to use them for improper purposes." (People v. Robinson (2011) 199 Cal.App.4th 707, 712, 714.) The current firearm possession offense was coupled with convictions for possessing and cultivating marijuana. Our Supreme Court has recognized that "[a] firearm kept near the drugs[,]" like defendant did here, "creates an ongoing risk of serious injury or death from use of the weapon to protect the defendant during a drug sale, to guard against theft of the drugs, or to ward off police." (Bland, supra, 10 Cal.4th at p. 1002.)
Indeed, as the court made clear at sentencing, it considered the firearm and ammunition offenses together with the marijuana offenses "extraordinarily serious." And defendant's repeated convictions for being a felon in possession of a firearm demonstrate defendant's recidivist tendencies towards a very serious and potentially violent offense. (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1329 ["The core idea is that those who have not drawn the proper lesson from a previous conviction and punishment should be punished more severely when they commit more crime"].)
Likewise, although time has passed between defendant's last strike and his current convictions, that fact alone does not mean the court erred. Mere passage of time on the "Gregorian calendar" does not establish an abuse of discretion. (See e.g., People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [age of 20-year-old conviction not determinative where defendant has not lead a " 'legally blameless life' " since his last strike conviction].) Because defendant has not led a " 'legally blameless life,' " we cannot say the court abused its discretion in refusing to strike one or both of defendant's prior strikes due to remoteness.
Defendant's reliance on People v. Burgos (2004) 117 Cal.App.4th 1209, is misplaced because he is not, as he argues, "similarly circumstanced." While the defendant's criminal history in Burgos largely consisted of misdemeanors such as "unruly behavior at a bus terminal" (id. at p. 1216), defendant's criminal history is decidedly different. Defendant was charged with murder and ultimately convicted of manslaughter. He suffered convictions for possessing cocaine for sale, criminal threats, and being a felon in possession of a firearm, all serious offenses.
The record shows the court was aware of its discretion to strike and considered permissible factors in declining to do so. Defendant has failed to show that the court acted so irrationally or arbitrarily that no reasonable person could agree with its denial of Romero relief. His claim therefore fails.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: RAYE, P. J. NICHOLSON, J.