People v. Jurado CA2/6

Filed 10/7/14 P. v. Jurado CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B253569 (Super. Ct. No. KA100205) Plaintiff and Respondent, (Los Angeles County)

v.

MARK JURADO

Defendant and Appellant.

Mark Jurado appeals a judgment following his conviction by a jury of possession of heroin. (Health & Saf. Code, § 11350, subd. (a).) Jurado admitted the truth of a special allegation by the People that he had been convicted in 1982 of a felony, viz., dissuading a witness with force, or an implied threat of force. (Pen. Code, § 136.1.) Jurado moved for a new trial and to "strike" the allegation on the ground that doing so was in the interests of justice. (Id., § 1385; People v. Superior Court (1996) 13 Cal.4th 49 (Romero).) The trial court denied the motion to strike the prior conviction for sentencing purposes and doubled the upper term sentence of three years in prison to six years. Jurado contends that it was an abuse of the court's discretion to refuse to strike the prior conviction because it occurred more than 30 years ago and because he has not been convicted of a violent crime since then.

We conclude that the court did not abuse its discretion by deciding not to strike Jurado's prior strike conviction and affirm. FACTS Jurado argues the 30-year-old prior conviction occurred when he was only 19 and is his only strike under the three strikes law. Since then, Jurado notes he has not been convicted of a violent crime although he admits he has "suffered numerous drug possession and under the influence charges" and was convicted once for possession of heroin for sale and on another for grand theft. Jurado said his unrelenting addiction to heroin has left him in very poor health and that he suffers from an immune disease and myasthenia gravis. These diseases leave him weak, in respiratory distress, at risk for life- threatening infections and in need of constant medical care. He argues he "should be deemed outside the spirit of the three strikes law" and claims that imposing the strike "is not in the interest of justice." In denying the motion, the trial court explained that although the prior was old, its age was not the only factor to be considered. The court acknowledged Jurado's poor health and need for care but concluded, based upon the entire record and Jurado's other numerous felony and misdemeanor drug-related convictions since the strike, that it would not be in the interests of justice to disregard the prior conviction in determining his sentence. DISCUSSION A trial court has discretion to strike a prior strike conviction under the three strikes law. (Romero, supra, 13 Cal.4th at p. 504.) The standard for deciding whether to strike a prior is well established. "[T]he court . . . must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit . . . ." (People v. Williams (1998) 17 Cal.4th 148, 161.) If so, the defendant "should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Ibid.)