P. v. Stokes

Filed 2/14/07 P. v. Stokes CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
LAWRENCE WILLIAM STOKES,
Defendant and Appellant.
B192558
(Los Angeles County
Super. Ct. No. VA093940)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael A. Cowell, Judge. Affirmed as modified.
Jeffrey Lewis, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C.
Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.

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Lawrence Stokes appeals from judgment entered following a jury trial in
which he was convicted of second degree commercial burglary, count 1 (Pen.
Code, § 459), and uttering a forged prescription, count 2 (Health & Saf. Code,
§ 11368). He admitted he suffered a prior conviction of a serious or violent
felony within the meaning of the Three Strikes law (Pen. Code, §§ 667, subds.
(b)-(i); 1170.12, subds. (a)-(d))1
and served a prior prison term within the
meaning of Penal Code section 667.5, subdivision (b). He was sentenced to
prison, in count 1, to the upper term of three years, doubled as a consequence of
his admission of the strike prior, for a total of six years. Imposition of sentence
on count 2 and the prior prison term enhancement was stayed. He contends the
trial court’s denial of his Romero2
motion was an abuse of discretion, and the trial
court’s selection of an upper term sentence violated his Sixth Amendment right to
a trial by jury and proof beyond a reasonable doubt.3
For reasons explained in the
opinion, we strike the one-year enhancement and in all other respects affirm the
judgment.
1
In 1980, in case number A355446, appellant was convicted of voluntary
manslaughter. (Pen. Code, § 192, subd. (a).)
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
While not raised, we observe that the trial court appeared to have sentenced
appellant to an unauthorized sentence by ordering the one-year enhancement pursuant to
Penal Code section 667.5 stayed. Penal Code section 667.5, subdivision (b) “provides
for an enhancement of the prison term for a new offense of one year for each ‘prior
separate prison term served for any felony,’ with an exception not applicable here
involving a prior five-year commitment ‘washout’ period of freedom from custody and
further felony offenses. Once the prior prison term is found true within the meaning of
[Penal Code] section 667.5(b), the trial court may not stay the one-year enhancement,
which is mandatory unless stricken. [Citations.]” (See People v. Langston (2004) 33
Cal.4th 1237, 1241.) As it is clear the trial court intended appellant not serve the
additional year, we will order the one-year enhancement stricken.

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FACTUAL AND PROCEDURAL SUMMARY
On February 15, 2006, appellant and codefendant Yul Lubrien walked into
a Target store in Pico Rivera, and each dropped off a prescription for Oxycontin
to be filled. The two prescriptions were consecutively numbered, from the same
doctor’s office, and signed by two different doctors. The pharmacist became
suspicious because although different doctors had signed each prescription, the
handwriting on the two prescriptions appeared to be the same. After learning the
prescriptions were not valid, the pharmacist notified her asset protection team,
and they called the police. Appellant and his co-defendant were thereafter
arrested.
DISCUSSION
I
Appellant contends the trial court abused its discretion when it denied his
Romero motion to strike his prior conviction for voluntary manslaughter. At
sentencing, appellant argued that the prior conviction was remote, occurring in
1980. It had been a “neighbor disturbance,” appellant had pled guilty and he had
not gone to state prison. The prosecution opposed the motion based on
appellant’s criminal history and the fact that appellant had violated parole on five
separate occasions.
In ruling on the motion, the court stated it was aware that appellant’s strike
prior was very old and that the current offense was a nonviolent one, but
concluded that in light of appellant’s lengthy and extensive criminal record, there
was no basis to grant such a motion.4
4
The probation report reflects appellant’s criminal record commenced in 1979.
Over the years, he had felony convictions for voluntary manslaughter, multiple counts

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4
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony
conviction allegation or finding under the Three Strikes law, on its own motion,
‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing
such a ruling, the court in question 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, in whole or in part, and
hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148,
161.)
A court’s failure or refusal to dismiss or strike a prior conviction allegation
under Penal Code section 1385 is subject to review under the deferential abuse of
discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) “In
reviewing for abuse of discretion, we are guided by two fundamental precepts.
First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such
a showing, the trial court is presumed to have acted to achieve the legitimate
sentencing objectives, and its discretionary determination to impose a particular
sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will
not be reversed merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’”’ [Citations.] Taken together, these precepts
of possession of controlled substances, possession for sale of a controlled substance,
grand theft of a vehicle and the unlawful driving or taking of a vehicle. His
misdemeanor convictions were for receiving stolen property, being under the influence
of controlled substances, vehicle tampering, and carrying a concealed weapon in a
vehicle.

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establish that a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp.
376-377.) Our review of the record indicates the trial court understood it had the
discretion to strike priors, and its decision was neither irrational nor arbitrary.
II
In imposing the upper term of three years for count 1, the court stated the
“extensiveness of [appellant’s] record alone[--]that sole factor is more than
enough to justify the imposition of high term.”
Appellant contends imposition of an upper term sentence violated his
federal constitutional rights to a jury trial and proof beyond a reasonable doubt
under the Sixth Amendment and Blakely v. Washington (2004) 542 U.S. 296. He
acknowledged People v. Black (2005) 35 Cal.4th 1238 but argued it may not be
the final word on the issue based on Cunningham v. California (2006) ___ U.S.
___ [126 S.Ct. 1329]. Indeed People v. Black was not the final word.
(Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856___].)5
In
Cunningham, decided January 22, 2007, the Supreme Court concluded
California’s determinate sentencing law, authorizing a judge to find the facts
permitting an upper term sentence and to permit the finding based on a
preponderance of the evidence, violated the rule of Apprendi v. New Jersey
(2000) 530 U.S. 466, 490, and the Sixth Amendment. The Court reiterated,
however, that the fact of a prior conviction need not be submitted to a jury. (See
Cunningham v. California, supra, 549 U.S. ___; Almendarez-Torres v. United
States (1998) 523 U.S. 224, 239-247.) Here the record of appellant’s prior
5
We asked the parties to file supplemental briefs addressing the sentencing issue
in light of Cunningham, which they did.

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convictions was the sole factor used to sentence him to the upper term;
accordingly, there was no violation of his right to a trial by jury as provided by
the Sixth Amendment.
DISPOSITION
The one-year enhancement imposed pursuant to Penal Code section 667.5,
subdivision (b) is ordered stricken, and in all other respects the judgment is
affirmed. The trial court is directed to prepare a new abstract of judgment
incorporating the modification and to send a certified copy to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P.J.
SUZUKAWA, J.

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