Filed 11/7/13 P. v. Brewer 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C072560

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F00145)

          v.

KRISTOPHER KENNETH BREWER,

                   Defendant and Appellant.




          A jury found Kristopher Kenneth Brewer guilty of felony possession of marijuana
while in prison. The trial court found one prior strike allegation to be true and dismissed
the other, resulting in a four-year sentence.
          On appeal, defendant contends the trial court abused its discretion when it refused
to dismiss his second prior strike allegation. Defendant claims the trial court failed to
fully consider the minor nature of the offense, his emotional and mental problems, and
his “mixed bag” of conduct in prison.
          We find no error in the court’s denial of defendant’s request. Accordingly, we
affirm.




                                                             1
                    FACTUAL AND PROCEDURAL BACKGROUND
         On December 6, 2011, Correctional Officer Doug Howell noticed defendant, a
prison inmate, with his hand down the back of his pants in what appeared to be an
attempt to secrete something into his rectum. When questioned, defendant told Officer
Howell he was “trying to shove something up his butt, but he couldn’t get it” in.
Defendant then pointed to a cellophane bindle wrapped in black tape on the ground and
said it contained chewing tobacco.
         As a result, defendant was strip searched and his rectum was inspected, but
nothing was found. Defendant was then placed on contraband watch in a cell where
Officer Howell observed him having a bowel movement. Thereafter, two bindles were
discovered in defendant’s feces. One bindle contained tobacco and the other smaller
bindle contained marijuana. The net weight of the marijuana was 0.38 grams.
         The jury found defendant guilty of possessing marijuana while in prison, a felony.
On a motion by the People, the trial court dismissed one of two prior strike convictions
arising from a 1993 case in which defendant kidnapped and robbed a person at gunpoint.
         The court then denied defendant’s Romero1 motion “based on the conduct of the
defendant since he has been incarcerated” and sentenced defendant to two years in state
prison, which the court doubled pursuant to the prior strike, for an aggregate term of four
years.
                                        DISCUSSION
         Defendant claims the trial court abused its discretion when it refused to dismiss his
second prior strike. The People assert defendant’s criminal history places him within the
spirit of the three strikes law. We conclude that the trial court did not abuse its discretion
in refusing to strike defendant’s second prior strike.




1        People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

                                               2
       In Romero, the California Supreme Court held that trial courts have discretion
under Penal Code2 section 1385 to dismiss a strike prior in the furtherance of justice and
the exercise of that discretion can be reviewed by the appellate court for abuse of
discretion. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) In People
v. Williams (1998) 17 Cal.4th 148, the court clarified that the question to be answered on
a motion to dismiss under section 1385 is 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 [three strikes] 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 court’s sentencing decision is subject to
review for abuse of discretion, and this discretion must be used in a manner that is not
arbitrary and capricious and should be based upon an “ ‘individualized consideration of
the offense, the offender, and the public interest.’ ” (People v. Sandoval (2007) 41
Cal.4th 825, 847.)
       Defendant first argues the minor nature of the marijuana possession felony does
not warrant the four-year consecutive prison term. Defendant contends that had he not
been in custody, his offense would have been merely an infraction and he would have
received a fine of no greater than $100. However, it does not matter that his offense
would have been less serious if he had committed it outside of prison because he
committed it in prison. The Legislature has decided that what would be a mere infraction
outside prison walls -- the possession of marijuana -- should be a felony if it takes place
in prison. (§ 4573.6) Defendant fails to cite any authority for the proposition that this
different punishment for the offense committed should be taken into consideration in a




2      Undesignated section references are to the Penal Code.

                                              3
Romero hearing. The trial court’s consideration of his criminal act was not arbitrary or
irrational.
       Defendant also contends that the court abused its discretion by failing to fully
consider his background of “mental and emotional problems” when deciding whether to
strike his second strike prior. Defendant “suffer[ed] mental and emotional problems
. . . [,] was under psychiatric care intermittently . . . [and] began abusing alcohol and
drugs [at age nine].” Although these issues may be considered a relevant factor in
mitigation in sentencing, we fail to see how they would compel the conclusion that the
only reasonable result would have been the striking of all defendant’s priors.
       Lastly, defendant contends that the trial court abused its discretion by not properly
weighing defendant’s “mixed bag” of conduct in prison. Defendant minimizes his bad
conduct when calling it a “mixed bag.” In presenting that argument, defendant
exaggerates mitigating factors and minimizes aggravating ones by citing positive work
and educational review and only briefly mentions his long list of rule violations during
his incarceration. The list of 13 violations as an adult in prison ranges from obstructing
an officer to battery of another inmate, and indicates that defendant has been unable to
change his drug-abusive lifestyle. Defendant’s inability to conform to the law in prison
does not lead one to believe that he will conform to the law outside it. The court declined
to strike defendant’s prior conviction, citing “the conduct of defendant since he has been
incarcerated.” Therefore, the trial court gave appropriate consideration to defendant’s
conduct in prison.
       Viewing the record as a whole, defendant fails to convince us the sentencing court
was irrational or arbitrary in concluding the interests of justice were furthered by finding
him within the spirit of the three strikes law. The trial court did not abuse its discretion in
denying defendant’s Romero motion.




                                              4
                                 DISPOSITION
     The judgment is affirmed.



                                   ROBIE       , Acting P. J.



We concur:



     MAURO         , J.



     HOCH        , J.




                                      5
