P. v. Gadley CA5

Filed 7/2/13 P. v. Gadley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065232 Plaintiff and Respondent, (Super. Ct. No. F11902940) v.

DAVID FITZGERALD GADLEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Poochigian, J. and Franson, J.

Defendant and appellant David Fitzgerald Gadley contends the trial court abused its discretion when it struck, for purposes of sentencing, one but not both of defendant’s prior strikes. We conclude the court acted well within the bounds of judicial discretion; accordingly, we affirm the judgment. FACTS AND PROCEDURAL HISTORY On May 23, 2011, as 66-year-old Adan Macias walked to the bus stop late at night after leaving work in downtown Fresno, defendant and an accomplice knocked him to the ground. Defendant kicked Macias and the accomplice stole money from his person. A jury found defendant guilty of second degree robbery in violation of Penal Code section 211. Defendant admitted two prior serious or violent convictions under the “Three Strikes” law (see Pen. Code, § 667, subds. (b)-(i); id., § 1170.12, subds. (a)-(d)) and admitted other enhancement allegations. After considering defendant’s invitation to strike the two prior strike convictions, the court exercised its discretion to strike one of the prior strikes for purposes of sentencing in the present case. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) The court sentenced defendant to the upper term of five years for the robbery, doubled, because of the remaining strike. (See Pen. Code, § 667, subd. (e)(1).) The court also struck one prior prison term enhancement and imposed sentence on other prior conviction and prior prison term enhancements (see Pen. Code, §§ 667, subd. (a)(1), 667.5, subd. (b)), for a total operative sentence of 23 years. DISCUSSION A sentencing court has discretion to strike for purposes of sentencing under the Three Strikes law one or more strikes incurred by a defendant. In exercising this power, the 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 … spirit [of the Three Strikes law], in whole or in part, and hence should be treated as though he