People v. Flanagin CA3

Filed 2/22/16 P. v. Flanagin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C079079

Plaintiff and Respondent, (Super. Ct. No. 14F0006771)

v.

TIMOTHY RAYE FLANAGIN,

Defendant and Appellant.

Sentenced to six years in state prison following a plea agreement, defendant Timothy Raye Flanagin contends the trial court abused its discretion in denying his Romero1 request to strike a prior strike. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

While on GPS-monitored parole, defendant was found in a hotel room with a small amount of methamphetamine, drug paraphernalia, and a fixed-blade knife. He was

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

1

charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and alleged to have had a prior strike (Pen. Code, § 1170.12)2 and two prior convictions (§ 667.5, subd. (b)). Defendant pleaded guilty, admitting to the possession, prior strike, and two prior convictions.

The prior strike (and one of the prior convictions) was for raping a 16-year-old girl in 1998 when defendant was 21. Defendant had held a knife to the victim’s stomach and raped her. He also bit her neck. In 2004, his DNA was matched with a sample taken from the victim, and he was convicted in 2007. The other prior conviction was for failing to register as a sex offender in 2014.

At sentencing, defendant requested the trial court to strike his prior strike (§ 1385, subd. (a); Romero, supra, 13 Cal.4th 497.) He asserted: He would be eligible for probation, supervision, or drug treatment but for his prior strike. The underlying offense was punishable as a misdemeanor and involved only a small amount of methamphetamine. The offense was neither serious nor violent, nor did it represent an increase in seriousness from his prior convictions. Three strikes punishment was disproportionate to the severity of the offense. He had admitted his guilt at an early stage. Three of his four prior felonies were neither serious nor violent. His prior strike occurred 15 years ago. He had never suffered a drug possession conviction in the past. All his prior felony conduct occurred within a relatively short period (with the exception of his current offense and failing to register as a sex offender). And he had remained free from felony conduct for over 10 years.