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Filed 9/24/21 P. v. Newbolds CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FIVE

THE PEOPLE, 

Plaintiff and Respondent, 

v.

MICHAEL JAMES NEWBOLDS, 

Defendant and Appellant.

 A160484

 (Mendocino County

Super. Ct. Nos. SCUK-CRCR-18-

95447, SCUK-CRCR-19-30027, 

SCUK-CRCR-20-33920)

Michael Newbolds appeals from a judgment entered after he pled no 

contest in three different criminal cases. He contends the trial court erred 

when it denied his motion to strike his prior strikes pursuant to People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We will reject this 

argument and affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

A. Case Numbers 18-95477 & 19-30027

Appellant was arrested in August 2018 for having approximately 14 

grams of methamphetamine on his person while in close proximity to a scale 

and a plastic bag. Based on these facts, and as relevant here, a complaint 
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was filed in case number 18-95477 alleging appellant possessed a controlled 

substance for purposes of sale. (Health & Saf. Code1, § 11378.) 

Appellant failed to appear at his preliminary hearing. Therefore in 

early January 2019, the Mendocino County District Attorney filed two 

complaints against appellant. The first was an amendment in case number 

18-95477. It added an allegation that appellant had suffered one prior strike 

within the meaning of the Three Strikes law. (Pen. Code, §§ 1170.12, 667.) 

The second, in case number 19-30027, was a new action. As is relevant here, 

it alleged appellant failed to appear after being released on his own 

recognizance. (Pen. Code, § 1320, subd. (b).) 

Appellant pled no contest in both cases and the trial court sentenced 

him in February 2019. Pursuant to a global disposition, the court suspended 

the imposition of the sentence and placed appellant on probation for three 

years. As part of appellant’s plea agreement, the court declined to sentence 

him on the strike allegation so he would have the opportunity to rehabilitate 

himself. 

B. Case Number 20-99320

In June of 2019, the probation department filed a petition alleging 

appellant had violated his probation. The trial court revoked appellant’s 

probation and the police placed him under arrest. During the arrest, officers 

found seven grams of methamphetamine on appellant’s person and 2 ounces 

of methamphetamine in his vehicle. Appellant told the officers he was 

delivering the larger amount to an associate in Willits. 

Based on these facts, an information was filed charging appellant with 

possessing a controlled substance for purposes of sale. (§ 11378.) As is 

1 Unless otherwise indicated, all further section references will be to 

the Health and Safety Code.
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relevant here, the information also alleged appellant had suffered two prior 

strikes within the meaning of the Three Strikes law. (Pen. Code, §§ 1170.12, 

667.) The first was a 2003 conviction for assault with a deadly weapon. (Pen. 

Code, § 245, subd. (a)(1).) The second was a 1998 conviction in Illinois for 

residential burglary. (Former Ill.Rev.Stat.1983, ch. 38, par.19-3(a) (now 720 

ILCS 5/19-3(a)).) 

In March of 2020, appellant pled no contest to the possession for sale 

charge and admitted the prior strike allegations. Based on appellant’s plea 

in case number 20-99320, the trial court found he had violated his probation 

in case numbers 18-95477 and 19-30027. 

C. Consolidated Sentencing

The trial court sentenced appellant on all three cases in May 2020. In 

case number 20-99320, the court sentenced appellant to the low-term of 16 

months doubled to 32 months by operation of the Three Strikes law. In case 

number 18-95477, the court permanently revoked probation and sentenced 

appellant to an 8-month term to run consecutive to the sentence in case 

number 20-99320. In case number 19-30027, the court permanently revoked 

probation and sentenced appellant to 2 years, 8 months, also to run 

consecutive to the sentence in case number 20-99320. In total, the court 

sentenced appellant to six years of confinement. 

In July of 2020, appellant filed a timely notice of appeal. 

II. DISCUSSION

Appellant filed a motion prior to sentencing in which he asked the trial 

court to strike his prior strikes pursuant to Romero. He argued they should 

be stricken because they were remote in time, his prior criminal history 

stemmed from his addiction to drugs, and recent California sentencing laws 

evidenced an intent to keep those who are addicted out of prison. 
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The People opposed the motion noting appellant was 44 years old, he 

was facing his fifth felony conviction, he had a 25-year criminal history that 

also included 30 prior misdemeanor convictions, and he was on probation at 

the time of his most recent offense. 

The trial court denied appellant’s motion to strike the strikes 

explaining its decision as follows:

“I am receptive to the argument of the revolution in the criminal justice 

world and over incarceration of people who suffer from substance abuse 

charges.”

“However - - and I recognize that I have the discretion to strike the two 

priors.”

“However, given the facts of this case, the Court does not find that is 

appropriate, simply because I disagree with the total length that would be 

imposed.”

“Mr. Newbolds was on two grants of felony probation at the time of this 

offense. He has 30 prior misdemeanor convictions, including acts of violence.”

“He was not in compliance with probation at the time of the new 

offense. He was out of compliance, and out to warrant.”

“Additionally, the Court is considering that on these two prior grants of 

probation, he was given the benefit of having the strike removed so that he 

could have the opportunity to find rehabilitation and then this new law 

violation occurred.”

“So in total the Court finds that he does not fall outside of the three 

strike statutory scheme as it is presently.” 

Appellant now contends the trial court erred when it denied his motion 

to strike the prior strikes.
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A. Trial Court Authority Under Romero 

In Romero, our Supreme Court ruled that “ ‘a trial court may strike or 

vacate an allegation or finding under the Three Strikes law that a defendant 

has previously been convicted of a serious [or] violent felony, on its own 

motion, “in furtherance of justice” pursuant to [Penal Code] section 1385 

(a).’ ” (People v. Carmony (2004) 33 Cal.4th 367, 373.)

A trial court considering whether to strike a strike must determine 

whether the defendant, in light of his current crime, criminal history, 

background, character, and prospects, should be deemed “outside the . . . 

spirit” of the Three Strikes law, in whole or in part, such that he should be 

treated as though the prior strike conviction had not occurred. (People v. 

Williams (1998) 17 Cal.4th 148, 161.)

B. Appellate Court Authority Under Romero

On appeal, we review the denial of a Romero motion for abuse of 

discretion. (People v. Carmony, supra, 33 Cal.4th at p. 373.) While 

conducting that review, we must remain mindful that “ ‘ “[t]he burden is on 

the party attacking the sentence to clearly show that the sentencing decision 

was irrational or arbitrary. [Citation.] In the absence of such a showing, the 

trial court is presumed to have acted to achieve legitimate sentencing 

objectives, and its discretionary determination to impose a particular 

sentence will not be set aside on review.’ ” [Additionally,] a ‘ “decision will 

not be reversed merely because reasonable people might disagree [and] ‘[a]n 

appellate tribunal is neither authorized nor warranted in substituting its 

judgment for the judgment of the trial judge.’ ” ’ ” (Id. at pp. 376–377.)

With this guidance, we turn to the specific arguments appellant has 

advanced. 
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C. Appellant’s Arguments

1. Nature and Circumstances of Prior Strikes

Many of appellant’s arguments on appeal follow a similar pattern. 

First, appellant identifies evidence that was in the record prior to the 

sentencing hearing. Then appellant compares each item of evidence with the 

court’s comments at the hearing itself. Because the court did not expressly 

comment on each item, appellant argues the court failed to consider them. 

Appellant’s arguments concerning the nature and circumstances of the prior 

strike allegations are an example. Appellant contends the trial court failed to 

consider his upbringing, his age, and the amount of time that had passed 

since his strike eligible offenses. Appellant also claims the court did not 

consider the fact that his lengthy criminal history included a five-year period 

where he committed no crimes, and that he had made prior attempts to 

overcome his drug addiction before committing his third strike. 

All these arguments suffer from the same flaw. While the trial court 

did not expressly mention the facts appellant has identified, that does not 

mean the court failed to consider them. All the factors appellant cites were 

either discussed in, or evident from, the written materials that were 

submitted to the trial court prior to sentencing. And pursuant to binding 

Supreme Court authority, we are required on appeal to presume the court 

considered those factors. (People v. Carmony, supra, 33 Cal.4th at p. 378) 

Here, appellant has not cited any evidence that shows the court did not

consider the factors he has identified. Absent such evidence, we must 

conclude the trial court did so.
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2. Nature and Circumstances of Current Offenses

Appellant contends that because he is a drug user with an addiction 

problem, his crimes don’t make him the type of offender the Three Strikes 

law was meant to punish. 

Appellant misinterprets the purpose of the Three Strikes law. Penal 

Code section 1170.12 states, “[a]ggregate and consecutive terms for multiple 

convictions” can be imposed “if a defendant has been convicted of a felony

and it has been pled . . . that the defendant has one or more prior 

serious or violent felony convictions.” (Pen. Code, § 1170.12, subd. (a), 

bolding and underlining added).) 

Thus, appellant was not being sentenced because his current offenses 

show he was a drug user who suffered from addiction. He was being 

sentenced because he was a life-long criminal who had committed three new 

felonies and had suffered two prior serious felony convictions that qualified 

as strikes within the meaning of the Three Strikes law. In our view, 

appellant falls directly within the scope of the statute.

Appellant next contends the trial court did not consider the fact that he 

was transporting methamphetamine for money so he could afford a place to 

live. He argues that because his crime was not violent, the trial court should 

have stricken the prior strikes. 

First, the presentence report—which the trial court reviewed prior to 

sentencing—states appellant was homeless at the time of his conviction. 

Therefore, the trial court was aware of appellant’s lack of housing. Second, 

while it is true that appellant’s current felonies were not violent, appellant 

has not cited, and the court is not aware of any authority that shows, a 

current offense must be violent to trigger a Three Strikes sentence under the 
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circumstances that were present in this case. Appellant’s argument is 

unpersuasive.

3. Policy Considerations

Next, appellant notes that other states on the West Coast have 

decriminalized certain types of drug possession. He argues that given this 

fact, he should not be incarcerated for his most recent crimes. This argument 

fails because appellant was not convicted of simple drug possession. Rather, 

appellant was convicted of possessing drugs for purposes of sale. (§ 11378.) 

Appellant’s argument on this point is based on a false premise.

4. Appellant’s Current Health Situation

Appellant’s next argument is based on evidence in the record that 

shows he suffers from congestive heart failure. Citing evidence from a 

website that states 50 percent of the people who suffer from that condition 

will die within five years, appellant argues his six-year sentence is a “de facto 

life sentence[]” that is unjust. 

Appellant did not raise this specific argument in the court below, so he 

has forfeited the right to raise it on appeal. (People v. Carmony, supra, 33 

Cal.4th at pp. 375–376.) We also reject the argument on the merits. The 

presentence report stated appellant was suffering from congestive heart 

failure. Thus, the court was well aware of appellant’s poor medical condition. 

The mere fact that the court declined to strike the prior strike findings does 

not demonstrate the court ignored that condition or that it abused its 

discretion. We find no error on this ground.

5. Distinguishing Avila

In arguing the trial court erred when it declined to strike his prior 

strikes, appellant relies primarily on People v. Avila (2020) 57 Cal.App.5th 

1134. The defendant in Avila was convicted of attempted second degree 
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robbery and attempted extortion after he “squashed . . . oranges” that were 

being sold by a roadside vendor. (Id. at p. 1139.) After the trial court 

sentenced the defendant to a Three Strikes enhanced term of 39-years-to-life 

in prison, he filed an appeal. On appeal, the Avila court ruled the sentence 

violated the Eighth Amendment prohibition against cruel and unusual 

punishment. (Id. at p. 1145.) But the court also ruled the trial court erred 

when it denied the defendant’s motion to strike three prior strikes. As the 

court explained, “no reasonable person could agree that the sentence imposed 

on Avila was just.” (Ibid.)

Avila is distinguishable because the sentence imposed there was far 

different from the one imposed in this case. Here, the trial court sentenced 

appellant to a six-year term based on his convictions in three different 

criminal cases. Furthermore, appellant already had the benefit of having one 

of his prior strikes stricken so he could have an opportunity to rehabilitate. 

We conclude Avila is not controlling under the very different facts that are 

present here.

6. Totality of the Circumstances

Our review leads us to conclude the trial court either expressly or is 

presumed to have considered all the relevant circumstances concerning 

appellant, his prior history, and his current crimes. While some of the factors 

appellant has identified may have supported the court’s ruling if it had 

decided to strike appellant’s prior strikes, that is not how the trial court 

ruled. Since “[n]o error occurs if the trial court evaluates all relevant 

circumstances to ensure that the punishment fits the offense and the 

offender," we conclude the trial court did not abuse its discretion when it 

denied appellant’s Romero motion. (People v. Shaw (2020) 56 Cal.App.5th 

582, 587.) 
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III. DISPOSITION

The judgment is affirmed.
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_______________________

NEEDHAM, J. 

We concur:

____________________________

SIMONS, ACTING P.J.

____________________________

BURNS, J.

A160484