Filed 9/7/16 P. v. Hicks CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041792
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS131183A)

         v.

DAMONE LESHUN HICKS,

         Defendant and Appellant.


         Damone Leshun Hicks was convicted of possession of a weapon by a prisoner,
and he was sentenced under the Three Strikes law to an aggregate term of 25 years to life.
He challenges the trial court’s denial of his motion under Penal Code section 13851 to
dismiss five prior “strike” convictions. For the reasons stated here, we will affirm the
judgment.
                                               I. BACKGROUND
A.       THE CHARGED OFFENSE
         Defendant was charged with possession of a weapon by a prisoner. (§ 4502,
subd. (a)). At the preliminary hearing, a Salinas Valley State Prison correctional officer
testified that defendant, an inmate, possessed a self-manufactured weapon that could be
used for defensive or offensive slashing purposes. On January 1, 2013, the officer was
patting down defendant, who was reentering a building from the prison yard.
Defendant’s right hand was cupped during the pat down, and the officer noticed some
         1
             Statutory references are to the Penal Code.
sort of razor tucked into the palm of that hand. The officer grabbed defendant’s wrist and
yelled “weapon.” Defendant resisted by trying to step away, and another correctional
officer assisted in restraining him.
       Once defendant was restrained, the testifying officer located the weapon on the
ground nearby. A photograph of the weapon was admitted into evidence. The weapon
was an altered single-edged prison-issued razor blade supported by foil tape and was
considered to be contraband.
B.     THE “STRIKE” OFFENSES
       The information contained a special allegation that defendant had been convicted
of five serious and/or violent felonies within the meaning the Three Strikes law (§§ 667,
subds. (b)–(i), 1170.12, subd. (c)(2)): (1) murder with a firearm (§§ 187, 12022.53,
subd. (d)); (2) through (4) attempted murder with a firearm (§§ 664, 187, 12022.53,
subd. (d)); and (5) possession of a firearm for the benefit of a criminal street gang (former
§ 12021, § 186.22, subd. (b)(1)). The prior offenses stemmed from a gang-related drive-
by shooting in May 2006, while defendant was on parole. When he was caught with the
weapon on January 1, 2013, defendant was serving 114-years-to-life for the 2006 murder
and attempted murders.2
C.     THE ROMERO MOTION
       Defendant filed a pre-trial motion under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 and People v. Williams (1998) 17 Cal.4th 148 to dismiss the prior
convictions alleged under the Three Strikes law, or in the alternative to strike some of the
priors so that he would be sentenced as a one-strike offender. The motion described
defendant as a 47-year-old inmate serving consecutive life sentences who suffered from
paranoid schizophrenia and had been enrolled in the mental health program at the prison
since 2008. According to the motion, defendant was illiterate, suffered from memory

       2
           Defendant’s sentence for the firearm conviction was stayed under section 654.
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loss, and did not understand why he had been charged with possessing a razor blade.
Defendant had only one rule violation in prison, a non-violent drug possession.
       Defendant argued that justice would not be served by prosecuting the prior strike
allegation because the current offense was non-violent, and even without the strike
enhancement defendant would die in prison. He pressed that he had “gone above and
beyond in terms of rehabilitating himself and helping others,” that he had “separated
himself from violence,” and that he was “addressing his mental issues through the
enrollment in the [prison] mental health program[.]” Further, he argued that it was
“questionable whether or not this razor blade was indeed in his hand” considering the
facts of the case. Defendant argued at the Romero hearing there was no state interest in
imposing another life term “simply because the statute allows it,” given that he would not
be released on the earlier convictions until he was 132 years old.
       Denying the motion, the trial court stated: “The Court has read and considered the
moving papers, the opposition papers, statements of counsel. The court has considered
this current offense. The current offense appears relatively minor in that it’s possession
of a weapon. However, it’s the foundation for any violence in state prison. [¶] The
Court is concerned that the current offense does involve violence. The defendant’s prior
strikes are incredibly serious and all involved violence. [¶] In reviewing the defendant’s
additional background I do note that he’s 47 years old. He’s serving a number of life
sentences. [¶] I also looked at his prior criminal history and noted he has five prior
prison terms including crimes of robbery. I noted at least three prior weapons violations,
all separate, drugs, thefts. [¶] I also note that the defendant has had some difficulties as
noted in the moving papers. [¶] I also note that there’s been only a rules violation, I
believe a drug possession, and no violation since 2006. [¶] However, the defendant’s
history is replete with violence and this incident does portend the defendant is within – is
within the spirit of the Three Strikes Law.”


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D.     TRIAL AND SENTENCING
       In a bifurcated trial, a jury found defendant guilty as charged, and the court found
true the prior strike allegations. Defendant was sentenced to an aggregate term of 25-
years-to-life consecutive to the life terms he was already serving.

                                     II. DISCUSSION
       The trial court has the authority under section 1385 to strike a prior conviction
allegation brought under the Three Strikes law “in furtherance of justice.” (§ 1385;
Romero, supra, 13 Cal.4th at pp. 529–530.) In making that determination, the court is
required to consider the defendant’s constitutional rights and society’s interest in a fair
prosecution. (Romero, at pp. 530–531.) “[P]reponderant weight must be accorded to
factors intrinsic to the scheme, such as 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, supra, 17 Cal.4th at
p. 161.) Circumstances must be extraordinary to deem a career criminal as falling outside
the spirit of the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
       We review a trial court’s denial of a motion to dismiss an allegation under the
Three Strikes law for an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at
p. 375.) The party attacking the denial has the burden to show that the decision was
irrational or arbitrary. (Id. at pp. 376–377.) Absent that showing, the trial court is
presumed to have achieved legitimate sentencing objectives, and its discretionary
determination will be upheld. (Ibid.) In light of that presumption, an abuse of discretion
will be found only in limited circumstances. An abuse of discretion occurs where the
trial court is unaware of its discretion to dismiss, where it considers impermissible factors
in declining to dismiss, or where the resulting sentence produces an arbitrary, capricious
or patently absurd result under the particular facts of a specific case. (Id. at p. 378.)



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       Defendant argues that the trial court abused its discretion by failing to consider the
entirety of his background in denying the Romero motion. Specifically, defendant asserts
that his culpability on the prior strike offenses “may have been mitigated by his serious
mental illness”—paranoid schizophrenia. Defendant urges that mental illness bears
heavily on a defendant’s culpability, and the trial court should have evaluated his past
and current offenses through the prism of any such diagnosis.
       We find no abuse of discretion on this record. In its oral pronouncement, the court
noted defendant’s criminal history including robbery and weapons offenses, it considered
the prior strikes serious and violent, and it viewed the current offense as “the foundation
for any violence in state prison.” The court also took into account “the particulars of
[defendant’s] background, character, and prospects.” (People v. Williams, supra,
17 Cal.4th at p. 161.) The court stated that it had read and considered the moving papers
and reviewed defendant’s additional background, and it specifically acknowledged that
defendant had some difficulties, “as noted in the moving papers.”
       The court was not required to place greater weight on mental illness than other
relevant factors, or to address defendant’s mental health with more specificity. (People
v. Carrasco (2008) 163 Cal.App.4th 978, 993–994.) Here, a Los Angeles County jury
found the defendant guilty of committing one murder and three attempted murders, and
there was no evidence presented in support of the Romero motion that defendant was
suffering from any diminished capacity when he committed those offenses. Although the
record showed that defendant was “a participant in the Mental Health Services Delivery
System” when the current offense occurred, defendant provided no documentation
supporting any mental illness or diminished capacity concerns that would have required
special consideration by the trial court.
                                    III. DISPOSITION
       The judgment is affirmed.


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                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Elia, J.




People v Hicks
H041792
