Filed 9/16/13 P. v. Merritt 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C069512

                   Plaintiff and Respondent,                                     (Super. Ct. No. 09F03812)

         v.

DEVIN MICHAEL MERRITT,

                   Defendant and Appellant.




         Defendant Devin Michael Merritt and a codefendant were charged with felony
assault on a fellow inmate. Defendant was also alleged to have eight prior convictions
within the meaning of the three strikes law.




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       A jury found defendant guilty as charged. The trial court found the allegations of
all eight prior convictions to be true and denied defendant‟s Romero1 motion to strike
seven of those priors.
       Defendant makes two arguments on appeal. First, he argues the trial court‟s
sentence violates the United States Constitution.2 Second, he avers the trial court‟s
“refusal to strike [his] prior qualifying „strike‟ convictions constituted an abuse of
discretion.” Because both arguments lack merit, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In February 2009 defendant and another inmate were playing handball in a
concrete exercise yard when the ball flew over a high wall. While defendant came to the
guard on duty to ask for another ball, his handball partner proceeded to assault a third
inmate out of view of the guard. When the guard finally realized what was going on,
defendant had already joined the fray. The incident lasted only a few seconds.
       Defendant was charged with assault on a prison inmate. At trial he testified that
he had been trying to stop the fight rather than participate in it. The jury found him guilty
despite his testimony.
       Before sentencing, defendant made a Romero motion requesting the court strike all
but one of his eight prior felonies. After reviewing the parties‟ papers, as well as the
probation report, the trial court denied the motion and sentenced defendant to a total of 30
years to life in prison consecutive to the 48-year term he was already serving. He made
no constitutional objection regarding the sentence.




1      People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
2      Defendant asserts that the sentence violates both the United States and California
constitutions; however, he puts forth no argument concerning the latter. We will
therefore address only the arguments concerning the United States Constitution.

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                                        DISCUSSION
                                               I
                                     Constitutional Claim
        Defendant asserts that his sentence violates both the Eighth Amendment‟s ban on
cruel and unusual punishment and the Fifth Amendment‟s double jeopardy clause.
Attempting to circumvent his failure to make this objection during sentencing, he
contends that “[w]hile defense counsel did not specifically mention federal or state
constitutional provisions, this court should reach the merits under the relevant
constitutional standards to prevent forfeiture and/or an ineffectiveness-of-counsel
claim . . . .”
        “[I]t is elementary that [a] defendant waive[s] [an argument based on the U.S.
Constitution] by failing to articulate an objection on federal constitutional grounds
below.” (People v. Burgener (2003) 29 Cal.4th 833, 886.) Defendant cites People v. Em
(2009) 171 Cal.App.4th 964 for the proposition that the court should overlook the
forfeiture in this case in the interest of judicial economy. (See id. at p. 971, fn. 5.)
Contrary to defendant‟s contention, we do not decide issues not properly before us. (See
People v. Alvarez (1996) 14 Cal.4th 155, 186 [bare reference to “ „confrontation rule‟ ”
not specific enough to preserve Sixth Amendment confrontation clause argument];
People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [because whether a punishment “in a
particular case [is cruel and unusual] is fact specific, the issue must be raised in the trial
court”].) In this case, defendant failed to properly bring an Eighth or Fifth Amendment
objection to the attention of the trial court and thus forfeited those objections.
                                               II
                                     The Romero Motion
        Defendant further asserts that the trial court abused its discretion in declining to
strike seven of his eight prior convictions. In Romero, our Supreme Court held that trial
courts may dismiss one or more of a defendant‟s prior convictions in the furtherance of

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justice pursuant to Penal Code section 1385. (Romero, supra, 13 Cal.4th at p. 530.) In
particular 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.” (People v.
Williams (1998) 17 Cal.4th 148, 161.) On appeal refusals to dismiss are reviewed for
abuse of discretion. (Id. at p. 162.)
       Defendant argues that the trial court abused its discretion by failing “to consider
all of the facts, particularly including [his] limited and minor role in the instant offense,
his unchallenged testimony as to what motivated him to take action, [the minimal effect
the increased sentence would have on his ultimate release date], and the difficult and
troubled years he spent growing up without a mother.” We disagree.
       Defendant argues that the trial court failed to properly take the nature of the
underlying offense into account in making its decision. He “does not deny that [the
victim] sustained several facial fractures from the altercation, but emphasizes that,
according to the prosecution‟s own evidence, the altercation lasted for just three or four
seconds, no weapons were involved and [defendant] was not present until the very end.
Moreover, [the evidence] support[s] the conclusion that it was [the codefendant] . . . who
did most of the damage to [the victim‟s] face.” Defendant further points out he testified
at trial that he only “intervened in the incident so that he could break it up” and that this
testimony was unchallenged. These arguments are meritless because they amount to an
attempt to relitigate the case. Because the trial court‟s decision is not manifestly
unreasonable, this court may not disturb it. The brevity of the criminal act does not
negate its violent nature. Moreover, the jury‟s guilty verdict necessarily means it did not
believe defendant‟s testimony concerning his benign motive.



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       Additionally, defendant contends that “[h]ad the qualifying prior convictions been
dismissed, [he] still would have faced a long, lengthy prison term while serving out the
remaining time on the 48-year sentence he received shortly before arriving at California
State Prison, Sacramento.” He cites no authority, however, for the proposition that a trial
court must take the length of the sentence into account when considering a Romero
motion. The trial court simply has to evaluate the nature and circumstances of his present
offenses and prior serious and/or violent felony convictions in conjunction with his
background, character and prospects to determine if he may be deemed outside the spirit
of the three strikes law. (People v. Williams, supra, 17 Cal.4th at p. 161.)
       Reaching further, defendant asserts that “the trial court‟s rationale for denying
[his] motion to strike rested almost entirely on his „extremely violent‟ past crimes.” He
argues that this focus on his past crimes violated the principle set out in People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968 that the court must consider both past
and present crimes when making sentencing decisions. (Id. at p. 979.) Defendant points
to the trial court‟s references to his “ „unquenchable thirst for violence‟ ” and lack of
“ „effort to reform or otherwise curtail his assaultive behavior‟ ” as demonstrating that the
court overemphasized his prior criminal history in coming to its decision. Looking at the
record, however, we fail to see how the trial court abused its discretion. After reviewing
defendant‟s long list of prior criminal conduct, the court stated, “from the foregoing
criminal history and from the conduct for which he was convicted in the current case . . .
[¶] . . . I cannot find facts sufficient to justify use of the Court‟s discretionary power
under Penal Code section 1385.” (Italics added.) From this language, it is clear that,
contrary to defendant‟s argument, the court evaluated both his present and past crimes in
conformity with the law governing Penal Code section 1385.
       Finally, defendant contends that the court abused its discretion by not properly
taking into account his troubled upbringing. Defendant provides no argument on how the
“difficulties he faced growing up” place him outside the spirit of the three strikes law.

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None of the events described in his brief -- events which also appeared in the probation
report “reviewed in detail” by the trial court -- mitigate his recidivist conduct. Thus,
there was no abuse of discretion.
                                      DISPOSITION
       The judgment is affirmed.




                                                        ROBIE                  , J.



We concur:



      NICHOLSON             , Acting P. J.



      MAURO                 , J.




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