1 Filed 4/8/15 P. v. Tomblinson CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TOMAS WILLIAM TOMBLINSON, Defendant and Appellant. C077124 (Super. Ct. Nos. 11F1859, 12F8026, 13F1725)

Sentenced to state prison for an aggregate term of six years, defendant Tomas William Tomblinson appeals, cont ending the trial court abused its discretion in denying his request to strike his strike prior. We c onclude that the trial court did not abuse its discretion and will affirm the judgment.2 FACTUAL AND PROCED URAL BACKGROUND During a patdown search on January 9, 20 11, an officer found four syringes in defendant’s pocket and a metal spoon with white residue. At the jail, an officer found 1.5 grams of methamphetamine in defendant’s underwear.
In case No. 11F1859, de fendant entered a plea of guilty to possession of methamphetamine (Health & Sa f. Code, § 11377, subd. (a)) and admitted a strike prior (Pen. Code, § 1170.12) 1 [1996 arson of another person’s property (§ 451, subd. (d))] in exchange for drug probation (§ 1210.1 et se q.) and dismissal of the remaining counts and allegations. The court placed de fendant on drug probation.
On November 12, 2012, a s earch of a vehicle in which defendant was riding as a passenger revealed a suitcase with how-to guides on assembling firearms and a .22-caliber Ruger pistol with an obscured serial number.
In case No. 12F8026, defend ant entered a plea of guilty of being a convicted felon in possession of a firearm (§ 29800, subd. (a )) and admitted a strike prior [the 1996 arson] in exchange for dismi ssal of the remaining count. Based on this new offense, defendant admitted violating proba tion in case No. 11F1859. Defendant failed to appear in case No. 12F8026 on March 7, 2 013, as directed.
In case No. 13F1725, defend ant entered a plea of no contest to failure to appear (§ 1320, subd. (b)) in exchange for dismissal of the remain ing allegations and an eight year eight month sentencing lid for the three cases. In preparation for sentencing the probatio n officer recounted defendant’s criminal history. In addition to defe ndant’s three current felony convictions, defendant’s prior felony convictions included th e following three: (1) a 199 6 drug conviction (Health & Saf. Code, § 11360, subd. (a)); (2) the 1996 ar son; and (3) a 2006 drug conviction (Health

1 Undesignated statutory references are to the Penal Code.3 & Saf. Code, § 11350, subd. (a)). Defenda nt had numerous misd emeanor convictions (Pen. Code, § 647, subd. (f) in 1994; Pen. Code, § 594, subd. (a) in 1996; Veh. Code, § 23152, subd. (b) in 2002; Health & Saf. Co de, § 11377, subd. (a) in 2003; Health & Saf. Code, § 11364 and Veh. C ode, § 14601.1, both in 2004 ; Pen. Code, § 417.4 in 2005; and Health & Saf. Code, § 11364 in 2006) and probation violations. Defendant was 38 years old, had used various illegal drugs fo r over 25 years, and failed to complete treatment when given the opportunity in case No. 11F1859 (he had two violations of drug treatment probation; to wit, he sustained a cont empt of court charge for failure to appear and failed to submit to a chemical test). He had not worked the previous two years. In requesting that the trial court strike the strike prior, defendant argued his current offenses were not serious or violent, his stri ke prior was remote, his criminal history was nonviolent, he was remorseful and took resp onsibility, and that he had been free from custody for a substantial period of time before the current offenses. He also challenged his punishment under the three strikes law as disproportionate to his offenses. The prosecutor opposed defendant’s request to strike the prior, citing defendant’s contacts with the criminal justice system and arguing defendant’s strike prior was not remote since defendant had been on probation or in prison without a substantial break during the 15 years prior to defendan t’s plea in case No. 11F1859. In denying defendant’s request to strike the strike prior, the trial court took into consideration the underlying facts of the cu rrent offenses (finding the firearm possession to be aggravating, violent, and potentially dangerous) as well as the nature and circumstances of the strike prior (aggravatin g since there was a considerable amount of anger, violence, and da nger), and determined the firearm po ssession and strike prior were similar. With respect to defendant’s backgr ound, the trial court noted defendant was not able to keep a job when not incarcerated, “bum[ming] off his friends and relatives,” and4 “pick[ing] up crimes,” reflecting a negativ e background. While the arson prior was “old,” the trial court noted that defendant had not improved his life since then. After denying defendant’s request to stri ke the strike prior, the court imposed a six-year state prison sentence: four years (m idterm of two years, doubled for the strike prior) for convicted felon in possession of a firearm (case No. 12F8026), a consecutive 16-month term (one-third the midterm or ei ght months, doubled for strike prior) for possession of methamphetamine (case No. 11F1859), and a consecutive one-third the midterm or eight months for failure to appear (case No. 13F1725).

DISCUSSION

Defendant contends the tria l court abused its discreti on in failing to strike his strike prior because his criminal record sinc e his 1996 arson convic tion consisted “by and large [of] simple drug offenses ,” not violent offenses, and th at he “should have received ongoing drug treatment.” We find no abuse of discretion.

The three strikes law “ ‘establishes a sent encing requirement to be applied in every case where the defendant has at least one qu alifying strike, unless the sentencing court “conclud[es] that an exception to the scheme shou ld be made because, for articulable reasons which can withstand scrutiny for abus e, this defendant should be treated as though he actually fell outside th e Three Strikes scheme.” ’ ” ( People v. Carmony (2004) 33 Cal.4th 367, 377 ( Carmony ).) The trial court considers “t he nature and circumstances of [the defendant’s] present felonies and pr ior serious and/or viol ent felony convictions, and the particulars of hi s background, character, and prospects . . . .” ( People v. Williams (1998) 17 Cal.4th 148, 161.) Dismissal of a strike prior is a departure from the sentencing norm. ( Carmony , supra , 33 Cal.4th at p. 378.) “[A] trial court’s refusal or failu re to dismiss or strike a prior conviction allegation under section 13 85 is subject to review for abuse of5 discretion.” ( Carmony , at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person coul d agree with it.” ( Id . at p. 377.) Where the trial court, 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, even if we might have ruled differently in th e first instance.’ ” ( Id . at p. 378.)

The trial court was aware of its discretion to strike defendant’s strike prior and did not abuse that discretion in declining to do so . The court reviewed the record and did not find that defendant fell outside the spirit of the three strikes law. True, defendant’s current offense of drug possession is not se rious. But “the nonviol ent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law.” ( People v. Strong (2001) 87 Cal.App.4th 328, 344.) Defe ndant was given the opportunity to complete drug treatment but he sustained two violations (contempt of court; failure to submit to chemical test) as well as the posse ssion of a firearm conviction. Defendant’s current firearm possession was deemed by the tr ial court to be both violent and dangerous and similar to defendant’s strike prior convic tion for arson of another person’s property. Although defendant’s strike prior offense oc curred in 1996, the prior was not remote because it was followed by a co ntinuous life of crime. ( People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [“Where, as here, the defendant has led a continuous life of crime after the prior, there ha s been no ‘washing out’ an d there is simply nothing mitigating about a 20-yea r-old prior.”].) Defendant’s recen t offenses and his life of crime place him within the spirit of the three strikes law. We find no abuse of discretion.6 DISPOSITION The judgment is affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

DUARTE , J.