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Filed 12/9/13 P. v. Shoulders 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Shasta)

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THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY DWONE SHOULDERS,

Defendant and Appellant.

C072550

(Super. Ct. Nos. 11F3193, 

12F1346, 12F3699)

Defendant Gregory Dwone Shoulders was convicted, in three separate cases, of 

transportation of a controlled substance, possession of a controlled substance, possession 

of drug without a prescription, and inflicting corporal injury on a cohabitant after a 

previous conviction in violation of Penal Code section 273.5, subdivision (e). Defendant 

admitted a great bodily injury enhancement, admitted he has served two prior prison 

terms, and was found to have a prior strike conviction. The trial court denied defendant’s 

motion to dismiss his prior strike and sentenced him to an aggregate term of 14 years four 

months in state prison.
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On appeal defendant contends, and the People concede, that his sentence must be 

modified to reduce the consecutive four-year great bodily injury enhancement to one year 

four months (one-third of the four-year sentence). He also contends the trial court abused 

its discretion in denying his motion to dismiss the prior strike. We shall modify 

defendant’s sentence to reflect the one-third term for the great bodily injury enhancement 

and affirm as modified.

BACKGROUND

On June 8, 2011, defendant was stopped because he had no license plates or 

registration tags on his car. Defendant informed the officer that he was on active parole

and consented to a search of his car. The search resulted in the discovery of 

methamphetamine in the vehicle’s center console. Defendant pleaded guilty in Shasta 

County case No. 11F3193 to transporting a controlled substance (Health & Saf. Code, 

§ 11379, subd. (a)) and admitted he had two prior prison terms within the meaning of 

Penal Code section 667.5.1 Defendant was placed on three years’ formal probation.

On February 29, 2012, defendant beat his girlfriend with a barstool. She escaped 

the assault by climbing out a bedroom window. Her arm was broken in the assault. 

Defendant pleaded guilty in Shasta County case No. 12F1346 to inflicting corporal injury

on a cohabitant following a prior conviction (§ 273.5, subds. (a), (e)), admitted he 

inflicted great bodily injury (§ 12022.7, subd. (e)), and admitted he violated his probation

in two cases. In exchange for his plea, he was to receive formal probation. Defendant

was reinstated on probation in the previous cases and referred to probation for 

preparation of a probation report.

Less than a week later, on March 19, 2012, police responded to a disturbance 

report and contacted defendant at his house. Defendant and another man were having a 

 

1

 Further undesignated statutory references are to the Penal Code.
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dispute because defendant wanted to purchase Viagra without a prescription and the man 

brought Adderall instead. Defendant had 21 generic Adderall pills in his pocket. A jury 

found defendant guilty in Shasta County case No. 12F3699 of possession of a controlled 

substance (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor drug possession 

without a prescription (Bus. & Prof. Code, § 4060). The trial court found defendant had a 

prior strike conviction (the infliction of corporal injury on a cohabitant in Shasta County 

case No. 12F1346).

On October 29, 2012, the trial court denied defendant’s motion to dismiss his prior 

strike conviction and sentenced him to an aggregate term of 14 years four months in state 

prison.

DISCUSSION

I

The trial court imposed a 14-year-four-month sentence as follows: the upper term 

of three years, doubled to six years, for possession of a controlled substance; a 

consecutive one-third the midterm, or one year four months, for inflicting corporal injury 

on a cohabitant, with a four-year consecutive term for the great bodily injury 

enhancement; a consecutive one-third the midterm, or one year, for transportation of a 

controlled substance; and two one-year consecutive terms for the two prior prison terms.

Defendant contends, and the People concede, that his sentence must be modified 

to reduce the consecutive four-year great bodily injury enhancement to one year four 

months (one-third of the four-year sentence).

Section 1170.1, subdivision (a) provides that subordinate terms “shall include onethird of the term imposed for any specific enhancements applicable” to a subordinate 

offense, and the great bodily injury enhancement (§ 12022.7, subd. (e)) is specified as 

such an enhancement. (§ 1170.11; see People v. Moody (2002) 96 Cal.App.4th 987, 990-

993.) Thus, the sentence for the corporal injury great bodily injury enhancement must be 
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reduced to one-third the full term, i.e., one year four months. We shall modify the 

judgment accordingly.

II

Defendant contends it was an abuse of discretion for the trial court to deny his 

motion to dismiss his prior strike conviction pursuant to section 1385 and Romero.

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 We 

disagree.

A trial court has the discretion to strike a prior serious felony conviction for 

purposes of sentencing only if the defendant falls outside the spirit of the three strikes 

law. (§ 1385; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) In deciding 

whether to do so, 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.)

Dismissal of a strike is a departure from the sentencing norm, and as such, we will 

not reverse the ruling on a Romero motion for an abuse of discretion unless the defendant 

shows the decision was “so irrational or arbitrary that no reasonable person could agree 

with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) Reversal is justified where 

the trial court was unaware of its discretion to strike a prior strike or refused to do so, at 

least in part, for impermissible reasons. (Id. at p. 378.) But where the trial court was 

aware of its discretion, “ ‘balanced the relevant facts and reached an impartial decision in 

conformity with the spirit of the law, we shall affirm the trial court’s ruling . . . ’ 

[citation].” (Ibid.)

 

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 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 (Romero).
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Here, defendant has an exceedingly extensive adult criminal record with 10 felony 

convictions, 13 misdemeanor convictions, 12 returns on parole violations, and five 

violations of formal probation. Since 1987 he has been unable to remain free from

custody for more than two years without sustaining a new conviction, or a parole or 

probation violation. In fact, he was on active parole when he committed the current 

transportation of a controlled substance offense, on two separate grants of probation 

when he committed the infliction of corporal injury strike offense, and was awaiting 

sentencing for the strike offense when he committed the possession of a controlled 

substance offense. These past and current convictions demonstrate the ongoing nature of 

defendant’s nearly continuous criminal behavior.

Defendant argues that his current and past offenses stem from his drug problem --

a fact he argues is mitigating and favors striking his prior conviction. But although the 

trial court could have considered defendant’s drug problem in mitigation, a court may 

also consider a drug-addicted defendant’s failure to address his addiction as a factor 

showing the defendant’s propensity for reoffending. (Williams, supra, 17 Cal.4th at 

pp. 161, 163.)

Defendant also argues that his current offense could have been charged as a 

misdemeanor and was a nonviolent drug offense -- facts he also argues are mitigating and 

favor striking his prior conviction. He claims that “[w]hat is missing from [his] record is 

violence.” While the current offense to which the three strikes enhancement was applied 

(possession of a controlled substance) is not a violent offense, defendant’s continuing 

criminal behavior, which includes the current strike conviction of infliction of corporal 

injury on a cohabitant with great bodily injury for beating his girlfriend with a barstool

and breaking her arm, most certainly is violent. This violent offense was committed only 

a month before the enhanced offense. Additionally, as the trial court noted, defendant 

had a previous felony and several misdemeanor convictions for domestic violence, as 
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well as brandishing and disturbing the peace offenses. Thus, his criminal record by no 

means lacks violence.

The purpose of the three strikes law is to provide increased punishment for 

recidivist offenders who have demonstrated that they are not rehabilitated or deterred 

from further criminal activity as a result of their prior imprisonment. (People v. Davis

(1997) 15 Cal.4th 1096, 1099; People v. Leng (1999) 71 Cal.App.4th 1, 14.) Defendant 

has demonstrated he is unable to remain crime free for any appreciable amount of time, 

even under supervision, and is well within the spirit of the three strikes law. The trial 

court did not abuse its discretion in denying his section 1385 motion.

DISPOSITION

The consecutive term for the great bodily injury enhancement in case 

No. 12F1346 is reduced from four years to one year four months. As modified, the 

judgment is affirmed. The trial court is directed to prepare an amended abstract of 

judgment reflecting the modification and to forward a certified copy thereof to the 

Department of Corrections and Rehabilitation.

 RAYE , P. J.

We concur:

 MAURO , J.

 DUARTE , J.