Filed 7/29/16 P. v. Brown CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL IZELL BROWN,

Defendant and Appellant.

 A145580

 (Mendocino County

 Super. Ct. No. SCUK CRCR 14-76719)

In this appeal after a jury trial, we are asked to review only the decision by the trial 

court to deny appellant’s motion to strike priors based on People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497 (Romero). The trial court articulated its reasons for 

denying the motion and we find it exercised its discretion in this regard. We therefore 

affirm.

STATEMENT OF THE CASE

On July 3, 2014, the District Attorney of Mendocino County filed an information 

charging appellant with possession of cocaine for sale, a violation of Health and Safety 

Code section 11351 (count 1); and possession of methamphetamine for sale, a violation 

of Health and Safety Code section 11378 (count 2). The information also alleged 

appellant sustained a prior strike conviction based on his conviction for premeditated 
2

attempted murder (Pen. Code,

1

§§ 1170.12, 667, 664/187). The information also alleged 

appellant was convicted of three other felonies. 

The proceedings in this case were suspended on January 28, 2015, pursuant to 

section 1368. Appellant was considered competent and criminal proceedings were

reinstated on February 11, 2015. The jury trial commenced on April 13, 2015. The 

following day, after deliberations, appellant was convicted of both counts. Afterwards, in 

a bifurcated hearing, the court found appellant had sustained a strike conviction as 

alleged, and had been convicted of two of the three other priors also alleged in the 

information. On June 23, 2015, the court denied appellant’s Romero motion. That same 

day, the court denied probation and sentenced appellant to state prison for a term of eight 

years four months. Appellant filed his notice of appeal on June 25, 2015. 

STATEMENT OF FACTS

On April 6, 2014, around 11:00 a.m., Ukiah officer Thiele was dispatched to the 

parking lot of a Jack in the Box restaurant concerning information that drug transactions 

were taking place in the lot. Earlier that morning, reserve deputy McNamara of the Del 

Norte County Sheriff’s Office, while having breakfast with his family, observed 

suspicious activity associated with a white Ford Explorer. On at least three instances, 

individuals approached the Explorer and interacted with a man in the vehicle for a few 

minutes. It appeared exchanges were taking place. Appellant was the person in the 

Explorer.

Thiele received permission from appellant to examine the interior of the vehicle. 

The officer found a potato chip bag in the front seat; it contained 12 small plastic bags 

containing white crystal powder of suspected methamphetamine. The chip bag also 

contained three plastic bags of a white substance believed to be cocaine. In the rear of 

 

1 All subsequent statutory references, unless otherwise indicated, will be to the 

Penal Code.
3

the vehicle was a large brown paper bag containing 70 plastic bags. Appellant had $993 

on his person. 

The analysis of the white crystal powder established it was methamphetamine with 

a weight of 6.7 grams and the white powder was cocaine with a weight of 2.3 grams. 

Officer Cedric Cook of the Ukiah Police Department testified he believed the product,

packaged as it was, was possessed by appellant for sale.

DISCUSSION

The lone issue here is whether the trial court’s refusal to strike appellant’s strike 

prior was improper. Appellant contends under Romero, supra, 13 Cal.4th 497 the trial 

court acted unreasonably. We disagree.

In Romero, the defendant was charged with possession of a controlled substance 

with four prior felony convictions, including two alleged as strike priors. (Romero, 

supra, 13 Cal.4th at p. 506.) He pleaded guilty in return for the trial court’s agreement to 

strike the prior serious felony convictions and was sentenced to state prison for six years; 

three years for the drug possession conviction and one year for each alleged felony prior. 

(Id. at p. 507.) The issue on appeal was whether the trial court had authority under 

section 1385, subdivision (a) to strike priors on its own motion. (Id. at pp. 507–508.) 

The Supreme Court held it had such discretion. (Id. at pp. 529–530.)

The Supreme Court assessed the trial court’s discretion to strike priors in People v. 

Williams (1998) 17 Cal.4th 148 (Williams). There, the defendant was charged in 1995 

with driving under the influence of a drug, a felony, because he had three prior 

convictions for the same offense in a period of seven years. He also suffered two prior 

prison terms for rape and attempted robbery in 1982, had two prior prison term 

convictions for possession of a firearm by an ex-felon, along with convictions for other 

offenses. (Id. at p. 152.) He additionally had parole and probation revocations. (Id. at 

p. 154.) The trial court indicated it would strike one prior and sentence the defendant as a 
4

second strike offender. The defendant took the offer (id. at p. 156) and was sentenced to 

nine years in prison as a second strike offender (id. at p. 157). 

In Williams, the court held the preponderant weight under Romero, supra, 

13 Cal.4th 497 is to focus on the factors sustaining the sentencing scheme of strike 

punishment. The focus is on the nature and circumstances of the defendant’s present 

felonies, along with his serious and/or violent felony convictions, and the particulars of 

his background, character, and prospects. (Williams, supra, 17 Cal.4th at 161.) This 

review is aimed at asking whether the defendant is considered outside the scheme’s spirit, 

in whole or in part, and, consequently, whether he should be treated as one who 

previously has not been convicted of one or more serious or violent crimes. (Ibid.) Upon 

review, there was nothing about the defendant’s present or prior felonies that favored him 

for Romero consideration. The history reflected he had refused to learn his lesson. 

(Williams, at p. 163.) The decision to strike a prior serious felony conviction is an 

extraordinary exercise of discretion and is analogous to setting aside a jury finding of 

guilt. (People v. Jackson (1986) 178 Cal.App.3d 694, 697–698.) Only in extraordinary 

circumstances will a convicted defendant be deemed to fall outside the strike 

enhancement scheme of sentencing. (People v. Carmony (2004) 33 Cal.4th 367, 378

(Carmony).)

In our review of the decision by the trial court, we review the record to see 

whether the trial judge abused her discretion in this instance. (Carmony, supra, 

33 Cal.4th at pp. 376–377.) Here the trial judge explained her reasons for not striking the 

prior. She stated: “Well, with regard to the invitation to strike the strike, I am going to 

decline the invitation. The reason I am declining that invitation, so the record reflects I 

am exercising my discretion in this regard. [T]he circumstances of this offense I think 

are such that the numerous felonies that Mr. Brown has on his record, as well as the short 

amount of time in between he was out of custody from CDCR and the commission of this 

offense, he was on parole at the time. [¶] There is nothing in the Romero motion––or the 
5

Romero case or the cases that have made efforts to interpret that case therefrom, even 

though Mr. Brown has had employment he has people to attest to his value as an 

employee. I don’t believe rises to the level of taking this out of the heartland of strike 

litigation, so I am going to decline to strike the strike.” 

Counsel for appellant further argued in this matter, pointing out several of 

appellant’s arrests did not result in any conviction but were dismissed or not prosecuted. 

The judge agreed with counsel’s observation and stated, “Okay, I am not going to 

consider the arrests. It’s . . . I had a lot of time to think about this case before I got the 

probation officer’s report. I presided over the trial[;] I pretty much came to my own 

conclusion about what the right sentence is.” Right before sentencing appellant, the court 

again articulated her view on discretion under Romero: “All right. In this matter, I have 

weighed the information and factors affecting probation and also the circumstances in 

aggravation, the circumstances in mitigation. As well as the record––factual record 

developed throughout the case, including trial. I was the judge that presided over the 

trial, so I am well acquainted with the facts. And I have declined the invitation to strike 

the strike because––for the reason I previously stated and I don’t think it would be a just 

exercise in my discretion to do that.” 

The sentencing judge did exercise her discretion under section 1385 to strike the

special allegation pursuant to Health and Safety Code section 11370.2, subdivision (a),

2

found true by the jury, lessening the appellant’s sentence to a degree. 

We have reviewed the probation report in this matter and it reflects a substantial 

criminal history justifying the position taken by the trial court. Appellant has a 1993 

conviction for grand theft, a 1995 conviction for premeditated attempted murder with 

 

2

This enhancement alleged appellant had a 2005 felony prior for sale of a 

controlled substance in violation of Health and Safety Code section 11352. If sentence 

was imposed for this allegation, appellant could have had a consecutive three-year prison 

term.
6

great bodily injury, assault with a deadly weapon by means of force likely to produce 

great bodily injury, and 2005 convictions for possession of cocaine and transportation of 

cocaine. Additionally, appellant had only been out of state prison for four months before 

this arrest, and was still on parole at the time of the conviction. Relying on Williams, 

supra, 17 Cal.4th 148 and Carmony, supra, 33 Cal.4th 367, we cannot say the articulated 

reasons of the trial court are “so irrational and arbitrary that no reasonable person could 

agree with it.” (Carmony, at p. 377.)

Appellant’s brief argues at length the trial court abused her discretion here. We 

will not exercise our limited resources to engage in a line-by-line refutation of her 

contentions. The level of verbiage will not change our view the trial court acted 

appropriately and fully substantiated her reasons for denying the Romero motion while at 

the same time striking appellant’s Health and Safety Code section 11370.2, 

subdivision (a) enhancement found true by the jury. It is also noted the probation report 

recommended a state prison sentence exceeding the court’s sentence by five years. 

CONCLUSION

After reviewing the record in this matter, we conclude the trial court acted within 

her considerable discretion and declined to strike the prior strike of appellant under 

section 1385, subdivision (a). We therefore affirm the judgment.

DISPOSITION

The judgment is affirmed.
7

_________________________

DONDERO, J.

We concur:

_________________________

MARGULIES, Acting P. J.

_________________________

BANKE, J.