People v. Hicks CA6

Filed 9/7/16 P. v. Hicks CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041792 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS131183A)

v.

DAMONE LESHUN HICKS,

Defendant and Appellant.

Damone Leshun Hicks was convicted of possession of a weapon by a prisoner, and he was sentenced under the Three Strikes law to an aggregate term of 25 years to life. He challenges the trial court’s denial of his motion under Penal Code section 13851 to dismiss five prior “strike” convictions. For the reasons stated here, we will affirm the judgment. I. BACKGROUND A. THE CHARGED OFFENSE Defendant was charged with possession of a weapon by a prisoner. (§ 4502, subd. (a)). At the preliminary hearing, a Salinas Valley State Prison correctional officer testified that defendant, an inmate, possessed a self-manufactured weapon that could be used for defensive or offensive slashing purposes. On January 1, 2013, the officer was patting down defendant, who was reentering a building from the prison yard. Defendant’s right hand was cupped during the pat down, and the officer noticed some 1 Statutory references are to the Penal Code.

sort of razor tucked into the palm of that hand. The officer grabbed defendant’s wrist and yelled “weapon.” Defendant resisted by trying to step away, and another correctional officer assisted in restraining him. Once defendant was restrained, the testifying officer located the weapon on the ground nearby. A photograph of the weapon was admitted into evidence. The weapon was an altered single-edged prison-issued razor blade supported by foil tape and was considered to be contraband. B. THE “STRIKE” OFFENSES The information contained a special allegation that defendant had been convicted of five serious and/or violent felonies within the meaning the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subd. (c)(2)): (1) murder with a firearm (§§ 187, 12022.53, subd. (d)); (2) through (4) attempted murder with a firearm (§§ 664, 187, 12022.53, subd. (d)); and (5) possession of a firearm for the benefit of a criminal street gang (former § 12021, § 186.22, subd. (b)(1)). The prior offenses stemmed from a gang-related drive- by shooting in May 2006, while defendant was on parole. When he was caught with the weapon on January 1, 2013, defendant was serving 114-years-to-life for the 2006 murder and attempted murders.2 C. THE ROMERO MOTION Defendant filed a pre-trial motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and People v. Williams (1998) 17 Cal.4th 148 to dismiss the prior convictions alleged under the Three Strikes law, or in the alternative to strike some of the priors so that he would be sentenced as a one-strike offender. The motion described defendant as a 47-year-old inmate serving consecutive life sentences who suffered from paranoid schizophrenia and had been enrolled in the mental health program at the prison since 2008. According to the motion, defendant was illiterate, suffered from memory