Filed 9/20/13 P. v. Stiffler CA5




                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                             F066071
         Plaintiff and Respondent,
                                                                               (Super. Ct. No. BF143630B)
                   v.

JEFFREY RAY STIFFLER,                                                                      OPINION
         Defendant and Appellant.



                                                    THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen
A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
                                                         -ooOoo-

         *   Before Cornell, Acting P.J., Gomes, J., and Kane, J.
       Defendant Jeffrey Ray Stiffler pleaded no contest to one count of possessing
methamphetamine for sale. He had one prior strike within the meaning of the Three
Strikes Law and was sentenced accordingly. He now argues that the trial court abused its
discretion when it denied his motion pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 to dismiss the prior strike. We affirm the judgment.
                     FACTUAL AND PROCEDURAL HISTORIES
       The district attorney filed a complaint charging Stiffler with six counts:
(1) maintaining a place for unlawfully selling methamphetamine (Health & Saf. Code,
§ 11366); (2) child endangerment (Pen. Code, § 273a, subd. (a)1); (3) possession of
methamphetamine for sale (Health & Saf. Code, § 11378); (4) manufacturing metal
knuckles or offering them for sale (§ 21810); (5) being under the influence of a controlled
substance (Health & Saf. Code, § 11550, subd. (a)); and (6) possession drug
paraphernalia (Health & Saf. Code, § 11364.1). The complaint alleged that Stiffler had
served three prior prison terms within the meaning of section 667.5, subdivision (b). An
allegation of a prior strike—a first degree burglary from 1998—was added to the
complaint later.
       The parties entered into a plea agreement. Stiffler pleaded no contest to count 3
and admitted a prior prison term and the prior strike. The parties stipulated that a factual
basis for the plea was contained in law enforcement reports, which are not included in the
appellate record. In exchange for the plea, Stiffler received a lid of 44 months, consisting
of the 16-month low term, doubled for the prior strike, plus one year for a prior prison-
term enhancement. The remaining counts were dismissed. Stiffler reserved his right to
make a Romero motion at the sentencing hearing, arguing that the prior strike should be
dismissed.



       1Subsequent   statutory references are to the Penal Code unless otherwise indicated.



                                             2.
       Stiffler made the Romero motion at sentencing and the court denied it. The court
imposed the 44-month lid in accordance with the plea agreement.
                                       DISCUSSION
       To establish that a trial court abused its discretion in denying a Romero motion, a
defendant must show that “no reasonable person could agree” (People v. Carmony (2004)
33 Cal.4th 367, 377) with the trial court’s determination that the defendant did not fall
“outside the … spirit” of the Three Strikes Law (People v. Williams (1998) 17 Cal.4th
148, 161). Stiffler says he has shown that the court reached “a patently absurd result.”
We disagree.
       The appellate record does not contain Stiffler’s written Romero motion, the
People’s written response to the motion, or a complete account of Stiffler’s criminal
history.2 The primary source of information presented to us as a basis for determining
whether a reasonable person could find that Stiffler fell within the spirit of the Three
Strikes Law is the remarks of counsel and the court at the sentencing hearing:

               “[Defense counsel]: [T]here are a number of reasons why it would
       be appropriate in this case to strike the strike. Mr. Stiffler’s conviction was
       14 years ago. He was 21 years old and he sustained that first degree
       burglary. It was not [a] violent felony. It was a serious felony. There was
       no violence as [far] as I’m aware involved in that particular offense. He
       doesn’t even have a history of violence. He has an ongoing drug problem.
       In spite of that, he has only two other felony convictions. They are both
       quite old. One is from the year 2000 and the other from 2004. He was off
       parole. He was not on probation or parole at the time that the offense was
       committed. He might have been on misdemeanor probation actually but not
       with search terms. He almost actually had finished his five-year washout
       [under section 667.5]. He was four years into a five-year washout to that
       prison prior which he now has in addition to that sentence.




       2The probation officer submitted a “Short Report” containing only his statement of
the sentencing options and his recommendation. It does not include Stiffler’s criminal
history.



                                             3.
       “The actual facts of the case are not especially egregious. It wasn’t a
large quantity of drugs. The total package weight was 8.5 grams. It was
consistent certainly with personal use. He was under the influence at the
time that he was detained by law enforcement and he cooperated with law
enforcement. As a matter of fact, they asked permission—according to the
officer [although] there might be a dispute of fact—but according to the
officer Mr. Stiffler gave them permission to enter his residence and conduct
a search. There were some—I think there was drugs found in the bathroom
cabinet away from—high up, somewhere where minor kids could not get a
hold of them.

        “And, Judge, he did also enter a plea at an early stage in the
proceedings. I think—you know, for all the reasons that I’ve enumerated, I
think it would be appropriate in this case to strike the strike and sentence
him to the 16 months plus the prison prior, which would be I think a total of
28 months. In the alternative, if the court is not inclined to strike the strike
then I would ask that you strike the prison prior and sentence him to the 32.
But I would also ask to strike the strike.

       “THE COURT: Thank you. [¶] Mr. [prosecutor].

        “[Prosecutor]: Your Honor, I think Mr. Stiffler’s biggest problem is
his ongoing criminal activity that’s been outlined in the probation summary
that was provided at the pre-preliminary hearing. And in the past he’s done
two years, three years, and I’m not positive but I believe once four years.
So it’s really a matter of his overall record that the court should consider.
And this was a possession for sales case in which there were children
present in the home that although not especially for lack of a better word
feloniously endangered in this case nonetheless were subject to a filthy
house with apparent drug sales activity going on to which the co-defendant
entered a plea as a misdemeanor. So I’m gonna submit on probation’s
recommendation which would be—I don’t think they’re specifically
addressing the Romero motion per se but their recommendation is to
sentence according to the upper lid of 44 months.

       “THE COURT: I did read and review the motion filed by Ms.
[defense counsel]. I have listened carefully to her argument and the
argument of Mr. [prosecutor]. The difficulty I have in granting the Romero
motion is that Mr. Stiffler, although the strike is old, is that he continued to
re-offend and had two more felony convictions since that date. The most
recent I believe in 2004 which he was sentenced to prison. And although
that was close as Ms. [defense counsel] does directly state, she has not
incorrectly stated anything close to being washed out. What it does show is


                                       4.
       that Mr. Stiffler continues to re-offend and it’s roughly around every four
       years or so with a significant offense. This is a very close call but I don’t
       believe it would be appropriate for me to strike the strike. And I don’t find
       it outside the intent of the Three Strikes Law so I’m going to respectfully
       decline to do that. [¶] In regard to the prison prior, it is still a valid prison
       prior and if that was the offer of the People to strike the prison prior that
       would be another issue. But I’m not gonna disturb the plea at this point.”
       In light of this exchange, a reasonable person could conclude that Stiffler fell
within the spirit of the Three Strikes Law. Our Supreme Court has stated that the
circumstances must be “‘extraordinary’” under which “‘a career criminal can be deemed
to fall outside the spirit of the very scheme within which he squarely falls once he
commits a strike as part of a long and continuous criminal record, the continuation of
which the law was meant to attack .…’” (People v. Carmony, supra, 33 Cal.4th at
p. 378.) No such extraordinary circumstances have been shown in this case.
       Stiffler contends that, in addition to the facts the court referred to, it should also
have made clear that it was weighing others: that the current offense was not serious or
violent, that the strike was 14 years old, and that without the strike he would still have
received a significant prison term. He cites cases discussing various factors that have
been held to be relevant to a trial court’s decision to avoid a Three Strikes sentence and
says the court should have mentioned these. (See, e.g., People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 978 [relevant factors include nature and circumstances
of offense, defendant’s attitude toward offense, traits of defendant’s character, and
sentencing objectives set forth in Cal. Rules of Court, rule 4.410].)
       We agree that the seriousness of the current offense, the age of the strike, and the
sentence otherwise available are all relevant factors. These were all presented during oral
argument at sentencing and the court said it had carefully considered the parties’
contentions. More was not required. There is no rule that in denying a Romero motion
the court must expressly state on the record its view of the weight that should be given to
every relevant factor. Instead, we apply the usual appellate presumption that, if the


                                               5.
record on some factor or issue is silent, the trial court has made all findings necessary to
support its judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Our
Supreme Court has expressly applied this presumption to Romero appeals. (People v.
Carmony, supra, 33 Cal.4th at p. 378 [“‘On a silent record in a post-Romero case, the
presumption that a trial court ordinarily is presumed to have correctly applied the law
should be applicable’”].) Stiffler must affirmatively show error to overcome this
presumption, and he has not done so.
                                      DISPOSITION
       The judgment is affirmed.




                                             6.
