People v. Brewer CA3

Filed 11/7/13 P. v. Brewer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C072560

Plaintiff and Respondent, (Super. Ct. No. 12F00145)

v.

KRISTOPHER KENNETH BREWER,

Defendant and Appellant.

A jury found Kristopher Kenneth Brewer guilty of felony possession of marijuana while in prison. The trial court found one prior strike allegation to be true and dismissed the other, resulting in a four-year sentence. On appeal, defendant contends the trial court abused its discretion when it refused to dismiss his second prior strike allegation. Defendant claims the trial court failed to fully consider the minor nature of the offense, his emotional and mental problems, and his “mixed bag” of conduct in prison. We find no error in the court’s denial of defendant’s request. Accordingly, we affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND On December 6, 2011, Correctional Officer Doug Howell noticed defendant, a prison inmate, with his hand down the back of his pants in what appeared to be an attempt to secrete something into his rectum. When questioned, defendant told Officer Howell he was “trying to shove something up his butt, but he couldn’t get it” in. Defendant then pointed to a cellophane bindle wrapped in black tape on the ground and said it contained chewing tobacco. As a result, defendant was strip searched and his rectum was inspected, but nothing was found. Defendant was then placed on contraband watch in a cell where Officer Howell observed him having a bowel movement. Thereafter, two bindles were discovered in defendant’s feces. One bindle contained tobacco and the other smaller bindle contained marijuana. The net weight of the marijuana was 0.38 grams. The jury found defendant guilty of possessing marijuana while in prison, a felony. On a motion by the People, the trial court dismissed one of two prior strike convictions arising from a 1993 case in which defendant kidnapped and robbed a person at gunpoint. The court then denied defendant’s Romero1 motion “based on the conduct of the defendant since he has been incarcerated” and sentenced defendant to two years in state prison, which the court doubled pursuant to the prior strike, for an aggregate term of four years. DISCUSSION Defendant claims the trial court abused its discretion when it refused to dismiss his second prior strike. The People assert defendant’s criminal history places him within the spirit of the three strikes law. We conclude that the trial court did not abuse its discretion in refusing to strike defendant’s second prior strike.