Filed 9/20/13 P. v. Stiffler CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE , Plaintiff and Respondent ,

v.
JEFFREY RAY STIFFLER , Def endant and Appellant

. F066071
(Super. Ct. No. BF143630B)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.
Richard L. Fitzer , under appoi ntment by the Court of Appeal, for Defendant and App ellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

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* Before Cornell, Acting P.J., Gomes, J., and Kane, J.2

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Defend ant Jeffrey Ray Stiffler pleaded no contest to one count of possessing methamphetamine for sale. He had one prior strike within the meaning of the Three Strikes Law and was sentenced accordingly. He now argues that the trial court abused its
discretion w hen it denied his motion pursuant to People v. Superior Court (Romero) ( 1996 ) 13 Cal.4th 497 to dismiss the prior strike. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES The district attorney filed a complaint charging Stiffler with six cou nts: (1) maintaining a place for unlawfully selling methamphetamine (He alth & Saf. Code, § 11366); (2) child endange rment (Pen. Code, § 273a, subd. (a) 1 ) ; (3) possession of methamphetamine for sale (He alth & Saf. Code, § 11378); (4) manufacturing metal
knuckle s or offeri ng them for sale (§ 21810); (5) being under the influence of a controlled substance (Hea lth & Saf. Code, § 11550, subd. (a)); and (6) possession drug paraphernalia (Health & Saf. Code, § 11364.1). The complaint alleged that Stiffler had
served three prior prison terms within the meanin g of section 667.5, subdivision (b). A n allegation of a prior strike

— a first degree burglary from 1998

— was added to the complaint later. The parties entered into a plea agreement. Stiff ler pleaded no contest t o count 3 and admitted a prior prison term and the prior strike. The parties stipulated that a factual
basis fo r the plea was contained in law enforcement reports , which are not included in the appellate record. In exchange for the plea, Stiffler receive d a lid of 44 months , cons isting
of the 16

- month low term, doubled for the prior strike, p lus one year for a prior prison

term enhancement

. The remaining counts were dismissed. Stiffler reserved his right to
make a Romero motion at the sentencing hearing , arguing that the prior strike should be
dismissed.

1 Subsequent statutory references are to the Penal Code unless otherwise indicated.3

.

Stiffler made the Romero motion at sentencing and the court denied it. The court imposed the 44

- month lid in accordance with the ple a agreement. DISCUSSION
To establish that a trial court abused i ts discretion in denying a Romero motion, a
defendant must show that “no reasonable person could agree” ( People v. Carmony (2004) 33 Cal.4th 367, 377) with the trial court’s determination that the defend ant did not fall “outside the

... spirit” of the Three Strikes Law ( People v. Williams (1998) 17 Cal.4th 148, 161) . Stiffler says he has shown that the court reached “a patently absurd result.” We disagree. The appellate record does not contain Stiffler’s written Romero motion , the People’s written response to the motion, or a complete account of Stiffler’s criminal history. 2 The primary source of information presented to us as a basis for determining whether a reasonable person could find that Stiffler fell within the spirit of the Three
Strikes Law is the remarks of counsel and the court at the sentencing hearing:

“ [Defense counsel]: [T]here are a number of reasons why it would be appropriate in this case to strike the strike. Mr. Stiffler’s conviction was 14 years ago. He was 21 years old and he susta ined that first degree burglary. It was not [a] violent felony. It was a serious felony. T here was no violence as [far] as I’m aware involved in that particular offense. He doesn’t even have a history of violence. He has an ongoing drug problem. In s pite of that, he has only two other felony convictions. They are both quite old. One is from the year 2000 and the other from 2004. He was off parole. He was not on probation or parole at the time that the offense was committed. He might have been o n misdemeanor probation actually but not with search terms. He almost actually had finished his f ive

- year washout [under section 667.5]. He was four years into a five

- year washout to that prison prior which he now has in addition to that sentence.

2 The probation officer submitted a “ S hort R eport” containing only his statement of the sentencing options and his recommendation. It does not include Stiffler’s criminal history.4

. “The ac tual facts of the case are not especially egregious. It wasn’t a large quantity of drugs. The total package weight was 8.5 grams. It was consistent certainly with personal use. He was under the influence at the time that he was detained by law enforcem ent and he cooperated with law enforcement. As a matter of fact, they asked permission

— according to the officer [although] there might be a dispute of fact

— but according to the officer Mr. Stiffler gave them permission to enter his residence and conduct
a search. The r e were some

— I think there was drugs found in the bathroom cabinet away from

— high up, somewhere where minor kids could not get a hold of them. “And, Judge, he did also enter a plea at an early stage in the proceedings. I think

— you know, for all the reasons that I’ve enumerated, I think it would be appropriate in this case to strike the strike and sentence him to the 16 months plus the prison prior, which would be I think a total of 28 months. In the alternative, if the court is not inclined to strike the strike then I would ask that you strike the prison prior and sentence him to the 32. But I would also ask to strike the strike.
“THE COURT : Thank you. [¶] Mr. [ p rosecutor]. “[ Prosecutor]: Your Honor, I think Mr. Stiffler’s biggest prob lem is his ongoing criminal activity that’s been outlined in the probation summary that was provided at the pre

- preliminary hearing. And in the past he’s done two years, three years, and I’m not positive but I believe once four years. So it’s really a ma tter of his overall record that the court should consider. And this was a possession for sales case in which there were children present in the home that although not especially for lack of a better word feloniously endangered in this case nonetheless wer e subject to a filthy house with apparent drug sales activity going on to which the co

- defendant entered a plea as a misdemeanor. So I’m gonna submit on probation’s recommendation which would be

— I don’t think they’re specifically addressing the Romero mot ion per se but their recommendation is to sentence according to the upper lid of 44 months.
“THE COURT: I did read and revie w the motion filed by Ms. [ d efense c ounsel]. I have listened carefully to her argument and the argument of Mr. [ p rosecutor]. The difficulty I have in granting the Romero motion is that Mr. Stiffler, although the strike is old, is that he continued to
re

- offend and had two more felony convictions since that date. The most recent I believe in 2004 which he was sentenced to prison. And although that was close as Ms. [ d efense c ounsel] does directly state, she has not in correctly stated anything close to being washed out. What it does show is5

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that Mr. Stiffler continues to re

- offend and it’s roughly aroun d every four years or so with a significant offense. This is a very close call but I don’t believe it would be appropriate for me to strike the strike. And I don’t find it outside the intent of the Three Strikes Law so I’m going to re spectfully decline to do that. [¶] In regard to the prison prior, it is still a valid prison prior and if that was the offer of the People to strike the prison prior that would be another issue. But I’m not gonna disturb the plea at this point.” In light of this exchange, a reasonable person could c onclude that Stiffler fell within the spirit of the Three Strikes Law. Our Supreme Court has stated that the circumstances must be “‘extraordinary’” under which “ ‘ a career criminal can be deemed to fall outside the spirit of the very scheme within which h e squarely falls once he
commits a stri k e as part of a long and continuous criminal record, the continuation of
wh ich the law was meant to attack

.... ’” ( People v. Carmony , supra, 33 Cal.4th at
p. 378.) N o such extraordinary circumstances have been shown i n this case. Stiffler contends that, in addition to the facts the court referred to, it should also have made clear that it was weighing others: that the current offense was not serious or violent, that the strike was 14 years old, and that without the s trike he would still have received a significant prison term. He cites cases discussing various factors that have
been held to be relevant to a trial court’s decision to avoid a Three Strikes sentence and says the court should have mentioned these. (See, e.g., People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 [ relevant factors include nature and circumstances of offense, defendant’s attitude toward offense , traits of defendant’s character, and sentencing obj ectives set forth in Cal. Rules of C ourt, rule 4.410].) We agree that the seriousness of the current offense, the age of the strike, and the
sentence otherwise available are all relevant factors. These were all presented during oral argument at sentencing and the court said it had carefull y considered the parties ’
contentions. More was not required. There is no rule that in denying a Romero motion the court must expressly state on the record its view of the weight that should be given to every relevant factor. Instead, we apply the usual appellate presumption that , if the6

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record on some factor or issue is silent, the trial court has made all findings necessary to support its judgment. ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Our Supreme Court has expressly applied this presu mption to Romero appeals. ( People v. Carmony, supra, 33 Cal.4th at p. 378 [“‘On a silent record in a post

- Romero case, the presumption that a trial court ordinarily is presumed to have correctly appli ed the law should be applicable ’”].) Stiffler must aff irmatively show error to overcome this presumption , and he has not done so.
DISPOSITION The judgment is affirmed.