*1 Third Dist. Oct. C036854. 2004.] [No. PEOPLE,
THE Plaintiff and Respondent, MEEKS,
DELBERT Defendant and Appellant. FOR PARTIAL PUBLICATION*]
[CERTIFIED Court, 976.1, 976(b) is certified for opinion *Pursuant to California Rules of rules I V. parts with the publication exception *5 Counsel the Court of for Appeal,
Robert under Wayne Gehring, appointment by Defendant and Appellant. General, Anderson, R. Chief Attorney
Bill Robert Assistant Lockyer, Attorney General, General, Graves, McLean, Joel Jo Assistant John G. Attorney Mary Marshall, General, for Plaintiff and R. Todd Carey Attorneys and Deputy Respondent.
Opinion HULL, J. willfully failing, Meeks of convicted defendant Delbert jury A 2000, 15, after days to within five 1 and January May register between Code, 290, section (a)(1)(A); subd. (Pen. unspecified his address changing § Code) between failing, to the Penal and willfully references that follow are 1, 1999, 15, 2000, December and within May register five of his days trial, (§ birthday (a)(1)(D)). subd. After a bench the court found that defendant had been convicted on four occasions of offenses that previous constituted strikes within the (b)-(i), of section subds. meaning section 1170.12. Defendant sentenced to state life years prison for failure to after register changing his address. For of sentencing, purposes the court struck the they convictions as related his failure to prior register within five days of his of birthday consecutive term two imposed years.
On (1) defendant contends that erred appeal, court in instructing “willfulness,” on the element of jury (2) court erred in his denying challenges counts for of multiple single continuing offense failure register, (3) the court violated section 654 when it did not on stay punishment (4) his conviction for failure to five register within his days birthday, of a imposition term to life constitutes cruel and unusual punishment.
In an earlier we all published of defendant’s opinion, rejected contentions and affirmed. things, other we concluded defendant was Among properly convicted and sentenced for violations of Penal Code section multiple 290. The Court thereafter Supreme granted defendant’s petition review transferred matter back to this court for reconsideration in light Britt People (Britt). Cal.4th 944 87 P.3d Cal.Rptr.3d 812] reconsideration, we Upon affirm the again judgment.
Facts trial, At Defendant was bom December he that was stipulated 1951. he under on a required felony section 290 based conviction. Under section defendant had provisions lifelong requirement within five five days his and within his birthday days address. changing 1997; however, Defendant at least nine registered times from 1982 through the last time he was December He then registered 1997. listed address Boulevard, as 2557 Rio Linda Sacramento. *6 in
Sometime defendant was evicted from his Rio Linda residence and moved to 4720 Roosevelt Avenue in Sacramento. In January defendant was evicted from the Roosevelt Avenue he to residence after failed defendant, 15, 1999, told the an he officer detained the rent. On pay April told the Avenue. also he was 4720 Roosevelt Defendant staying officer to section 290. this address register pursuant officer that he knew he had to residence, Avenue he spent from the Roosevelt After defendant was evicted in with he moved on street. In or March February time living Sacramento, sister-in-law, Jefferson, where he at 3540 Y Street Naomi his officer on by May months. Defendant was detained an lived for several as address. When defendant was 4720 Roosevelt Avenue gave residence, 15, 2000, gave at Jefferson’s he Jefferson’s arrested on May as his address residence. an that he had been convicted of offense
Defendant testified Defendant believed he had him to under section 290 life. register required HIV diagnosed 12 or 13 times. In 1996 he was somewhere around registered thereafter, die, he not about he was to did knowing going positive; “[c]are He that his had contracted HIV daughter also worried nothing.” youngest he he did from or mother. As to what he meant when said either himself her think nothing not about defendant “I didn’t about anything, care explained: I didn’t think registering. else for the I didn’t think about disease. except it, of that. I about doing thought about bills. I didn’t think about none paying when but I deal with lack of was exacerbated caring couldn’t it.” 1997 his he with C. diagnosed hepatitis ain methadone treatment
From 1995 through participated to in an to heroin. He went effort overcome his addiction program which he used clinic defendant had bus “[e]very morning.” Although pass, clinic, because he to the he did not courthouse get go cross-examination, it when asked if “occurred was “too On depressed.” 290,” Code Section him that had Penal register pursuant [he] following dialogue occurred: “A. I didn’t think about it. [1] Q. You didn’t have my think it? A. No. I had could priorities. Maybe about priorities [f] weren’t, better, were Q. But were aware you you been but they [f] [|] Yes.” based on correct? A. your registration, required
Discussion I* The Instructions on Willfulness footnote, ante, page *See 695.
II Multiple Offenses Defendant contends that his conviction for to within register five of his should be days struck because section birthday registration 290’s are He requirements continuing offenses. “Once a argues: registrant has willfully failed in the legal that duty update registration upon birthday address, that state of change law violation continues until terminated by event, arrest, death, some significant registration, etc. While a former regis- trant in that is state of willful failure to of other events comply, passage registration cannot be new offenses requiring existing because violation had been yet not That a completed. second or another birthday passes change offense, of residence not a occurs is new but a merely continuation of the state of We unlawfulness.” are not persuaded.
Failure under (§ section 290 is a offense continuing subd. v. (g)(8); Court Wright Superior 15 Cal.4th 528 [63 is, 101]), P.2d Cal.Rptr.2d that “marked aby continuing duty the defendant to do act an which he fails to do. The offense continues as long (Id.
as the there duty 525.) and is a failure to at persists perform duty.” But because the simply Legislature intended that a violation of section be a continuing offense does not mean that a cannot be convicted and for new punished violations of separate section 290 as he continues to ignore the law.
“ ‘The of section is to assure that purpose persons convicted of the crimes enumerated therein shall be for readily available surveillance at police all times because the deemed Legislature them to commit likely similar in the offenses future. Plainly, Legislature per- [Citation.]’ [Citations.] ceives that sex offenders a threat to pose ‘continuing society’ [citation] Court, constant require vigilance.” (Wright Superior supra, 15 Cal.4th at The has found Legislature it imperative safety society times, location sex offenders be known to law enforcement all thus subject defendants section 290 to requiring reregister annually upon of location serves that change by law enforcement with purpose providing information which It updated through may it track these defendants. would ill serve the of section defendants purpose provide who fail with blanket from all but failure to immunity prosecution single register. A defendant who that he knows is for each violation subject prosecution is registration more in order to avoid requirement likely comply additional punishment likely more to become visible to law again
703 visible, he less his sexual repeat enforcement. is arguably likely Thus of every and with change crimes. defendants to By register annually requiring residence, each of the intent to treat violation it no doubt Legislature’s was offense in order continuing as a registration separate, requirements that a and to ensure to the extent possible with law encourage compliance sex offender’s whereabouts remain known. (1978) reliance on Lewis 77 Cal.App.3d
Defendant’s v. People [143 Lewis, 587], was with four charged is In Cal.Rptr. misplaced. 266h, all of related in of section which counts of violation separate pimping Lewis, a the court noted that to the same woman over of time. period a at issue described offense and one continuing anticipated statute over a court noted that the activity gravamen time. The period offense was a course of conduct of and mainte living deriving support Lewis, nance from the of a v. earnings prostitute. (People supra, circumstances, Under those the defendant could not be with charged separate acts of each time he received from the with whom money pimping prostitute he was involved. 290, a moves to a different
Under section failure to when one register offense; is failure to on the of the residence a a event continuing register Lewis, defendant’s a Unlike where a continuing offense. birthday separate offenses, offense was into and discrete single continuing parsed separate offenses, the two this matter there are two statute was violated in separate ways. different Had the a offense for each charged day prosecution separate address, failure to he the defendant register changed defendant’s when his then a would have been convictions for subjected improperly multiple Here single subjected multiple criminal act. however he was convictions criminal acts. multiple Defendant’s convictions for failure to register upon change separate (See birthday address on his are lawful. register annually People 519].) Davis Cal.App.4th Cal.Rptr.2d
Section chang- Defendant contends that him for after sentencing failing violated section following birthday his ing address . counts which found . . were guilty 654 because “the two [he] We single, continuing disagree. subdivisions of offense.” merely in different reads: “An act or omission that is punishable Section 654 shall be under punished provision different law ways by provisions for the but provides longest term in no case potential imprisonment, shall the act or omission be under more .” than one . . punished provision. *9 omission,” 654 Although section in terms of an “act it speaks or has been to include judicially situations in which several are interpreted offenses committed a course of deemed in (People dining conduct indivisible time. v. Beamon 625, 681, (1973) Cal.3d 905].) 8 504 P.2d The Cal.Rptr. 639 [105 key is whether the intent more inquiry objective than one crime attending committed a continuous course of conduct the same. (People during was Brown (1991) 918, 824].) 234 933 all the Cal.App.3d Cal.Rptr. [285 “[I]f to, offenses were incident were the merely means or accomplishing facilitating objective, defendant be found to harbored a may have single If, intent and therefore be once. may only on the punished [Citation.] [][] hand, other defendant harbored criminal which were ‘multiple objectives,’ other, not of and incidental to each he independent merely be may punished for each violation committed in statutory of each ‘even pursuit objective, the shared though violations common acts or were of an otherwise parts ” 321, (People v. Harrison indivisible of conduct.’ course 48 Cal.3d 401, 1078].) 335 768 P.2d Cal.Rptr. sentenced,
Defendant contends the two for which he offenses was failure to register of address and failure following change register following “are for coterminous time birthday, largely for the same periods” Thus, objective avoiding surveillance. he section police argues, permits one of the offenses. punishment only Britt, 944, supra, 32 Cal.4th
In was subject defendant to the registration of section moved from Sacramento requirement County (Britt, to El Dorado without either supra, County at notifying jurisdiction. 290, 949.) (f)(1), Section in the subdivision notification requires jurisdic tion where the last and section registered, (a)(1)(A), subdivision person in the to which the moves. The requires registration jurisdiction state person court both high concluded because offenses were committed for the surveillance, single the defendant could be purpose avoiding police (Britt, one of supra, at p. 954.) those crimes. punished only Britt, from Britt. In The distinguishable matter present readily act, defendant committed one from County Sacramento El Dorado moving which two order to County, triggered registration In requirement. accomplish surveillance, objective avoiding defendant’s it was police necessary that he fail in both in Sacramento jurisdictions. Failing but in El County, Dorado would have registering County, accomplished El have been nothing. Dorado would alerted his whereabouts. County Likewise, have Sacramento alone would registering County triggered Thus, that the defendant it was necessary El Dorado county notify County. (Britt, supra, fulfill meet his ultimate objective. fail to both requirements 32 Cal.4th matter, December birthday
In defendant’s present time subdivi he was December 1997. Section last registered five (a)(1)(D), days birthday. within registration person’s sion requires December 1998. Defendant became in violation of this after provision address as Rio listed his his December registration, defendant was evicted Linda Boulevard in Sacramento. Sometime More than five from that residence and moved to 4720 Roosevelt Avenue. *10 move, that after defendant became in violation of section subdivi days (a)(1)(A), within of a days change sion which five requires registration two residence. the events of defendant’s Although triggering conceivably could on the if day, have come same registration requirements the evicted on his events were nevertheless distinct. birthday, triggering Furthermore, the defendant was evicted from Roosevelt January Y Avenue residence and later moved into his Street with sister-in-law. he failed Again to register. Britt, to Britt.
Defendant the matter is argues analogous registra- present tion in either have revealed the County Sacramento El Dorado would defendant’s in El presence County Dorado surveil- purposes police Likewise, defendant, either lance. with according compliance registration here, during following coterminous time requirement “largely periods” defendant’s and his moves “would have revealed ids at the birthday presence” new address. much. oc analogy triggering
Defendant’s too Once event proves curs, the offense of is in nature. Failure to continuing within after December birthday five defendant’s occurred days 8, 1999, December thereafter. again Although after every year objective each of these and the offenses somewhat periods overlap same, each is it cannot be that defendant can be reasonably argued for each failure only register. Similarly, every once successive punished moves, time defendant this a new each of registration triggers requirement, However, which with before it. indefinitely continues the one overlaps each is a offense. separate to insure a defendant’s purpose punishment section ‘is that “[T]he ” Latimer (People
will be commensurate with culpability.’ 611].) Cal.4th 858 P.2d Under the circum- Cal.Rptr.2d case, failure failure to defendant for each to register stances punish moves violate this A defendant who without would purpose. repeatedly authorities, or notifying allows a repeatedly without birthday pass register- ing, surely more than one who fails to culpable register following only event. Section 654 not triggering does prohibit multiple punishments imposed this case. concluded, so we need not
Having consider defendant’s argument remand for the court trial to determine each objective underlying offense violates double This is not a case of a act or jeopardy principles. single course of conduct that results in This offenses. matter involves multiple Thus, events rise to separate triggering giving offenses. there is no separate occasion trial for the court to make a factual We determination of objective. also need not consider be argument defendant’s the matter remanded for the trial court to exercise its discretion whether to dismiss conviction prior The court has allegations. exercised its discretion in this already regard.
IV Cruel and/or Unusual Punishment above, As noted defendant was under three sentenced strikes law to *11 term of 25 to life for years register to within five of failing days changing address. The court struck the convictions for on prior purposes sentencing the count a failure to within of his and alleging five days birthday, term, a total imposed term of 27 to life. two-year resulting years Defendant contends that his sentence of 25 life for after changing his address constitutes cruel and/or unusual punish- ment under the United States and We California Constitutions. disagree. trial, raised
Defendant in a at but argument way superficial so, no Even the trial and the provided both the court have specifics. appellate to determine whether a or authority sentence results in cruel unusual punishment. (P v. Sandoval 481, eople (1987) 194 487 Cal.Rptr. Cal.App.3d [239 v. Williams People 544]; 922, (1986) 180 926 Cal.App.3d Cal.Rptr. [225 842].) While the determination this claim be proper may fact-specific v. (People Dillon 441, 390, (1983) 34 Cal.3d 479 P.2d Cal.Rptr. 668 [194 697]), it of the is a role court to decide and mixed fact appellate questions (People Cromer 889, 23, law (2001) v. 24 Cal.4th 900-901 Cal.Rptr.2d [103 v. People 110, Louis 243]; 969, 15 P.3d 42 Cal.3d (1986) 984 Cal.Rptr. [232 law]; Witkin, mixed 728 P.2d of fact [determining 9 Cal. questions 180] 318-319, (4th 1997) 357-359.) Procedure ed. Appeal, pp. §§ “Mixed are those ‘in which the historical facts are admitted questions established, the of law is rule is the issue whether the facts undisputed,
707 standard, the rule or to it another whether way, satisfy legal] put [relevant ” v. not violated.’ (People facts is or is of law as established applied Louis, 984, (1982) 42 v. Swint Cal.3d at Pullman-Standard supra, quoting p. Moreover, 273, 289, 66, 80, 1781].) S.Ct. L.Ed.2d 102 456 U.S. fn. 19 [72 have addressed the argument. People Cromer, v. (People supra, We review these independently. questions Louis, 901; at 24 at v. 42 Cal.3d supra, p. Cal.4th p. People doctrine, en the courts not may Under of powers separation must are to the Legislature croach matters that left lightly normally be aware that function of the branch of always legislative government (In 910, (1974) define crimes and re Foss 10 Cal.3d describe punishments. 649, 1073].) examine acts P.2d The courts legislative 917 519 Cal.Rptr. [112 in indi determine constitutional limits whether exceeds punishment 217, (Ibid.; 410, (1972) cases. re 414 Lynch vidual Cal.3d Cal.Rptr. [105 921].) 503 P.2d Amendment
The to the United States Constitution Eighth proscribes “cruel and a ‘narrow unusual “contains punishment” proportionality ” (2003) v. (Ewing sentences.’ principle’ ‘applies noncapital California 108, 117, (lead 538 U.S. L.Ed.2d 123 S.Ct. opn. [155 1179] O’Connor, J.), (1991) Harmelin v. 501 U.S. 996-997 quoting Michigan “ 2680].) L.Ed.2d 111 S.Ct. That prohibits ‘imposition principle [115 ” a sentence that is of the crime’ severity grossly disproportionate (lead v. 538 U.S. at L.Ed.2d (Ewing California, supra, [155 117] O’Connor, J.), Rummel Estelle U.S. opn. quoting case, L.Ed.2d in a 1133]), 100 S.Ct. although noncapital ” “ (Ibid.) successful are rare.’ challenges ‘exceedingly proportionality *12 of A consideration three analysis objective proportionality requires criteria, the of the “(i) which include the of the offense and harshness gravity in (ii) the sentence on other criminals the same juris penalty; imposed diction; (iii) crime in and the for commission the same sentences imposed L.Ed.2d (Solem other v. Helm 463 U.S. 292 jurisdictions.” [77 637, 650, 3001].) S.Ct. it is rare case where a only comparison 103 But in the crime and the sentence leads an inference of the committed imposed criteria into that the second and third come gross disproportionality play. at 501 at 1005 L.Ed.2d (Harmelin v. U.S. Michigan, supra, p. [115 (conc. J.).) of Kennedy, opn. pp. 871-872] 108], L.Ed.2d the United
In
v.
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at
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L.Ed.2d at pp.
[155
Justice O’Connor stated in
“[rjecidivism
her lead
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California,
First, his sentence is the same as in He has imposed Ewing. avoid, violated a minimize, law that is intended to or at least danger those who public safety posed by have been convicted of certain sexual offenses. It is at least as serious as theft of three clubs. golf convictions, addition to the instant two felony defendant’s convic- prior tions and sentences were as follows: convicted in Missouri in term; burglary received a state convicted in Los prison in Angeles County 1973 for of material for possession arson and was granted but probation, was later revoked probation and he was sentenced to state for six prison months to five convictions in years; Sacramento in County rape, second degree assault with a robbery for which he deadly weapon sentences; received life convicted in Sacramento in for at- County and, force and sentenced tempted rape by to state for four when prison years, he violated his paroled, was returned to parole convicted in custody; Santa Clara County 1987 of felony and two misde- possession drugs meanors for which he was sentenced to state for two convicted prison years; in Sacramento County 1989 of second degree, and sentenced to *13 burglary state for two convicted in prison years; Sacramento of county second degree with an enhancement robbery for service of a term and prior prison sentenced to four in state convicted in Sacramento prison; County of 1993 misdemeanor under the driving influence and granted probation. should, of defendant’s account, the seriousness not only into as we Taking criminal law of the offense, of violations but also his history repeated current sentence is grossly cannot that his say at least 30 we years, that spanned his long- viewed in light current offense when to his disproportionate violent, does not The sentence history. criminal and sometimes standing, and unusual constitute cruel punishment. “cruel or unusual punishment.” Constitution
The California prohibits I, violate Const., added.) may A art. italics (Cal. punishment § method, it is in its not cruel or unusual Constitution “although [if] California that it shocks it is inflicted to the crime for which so disproportionate (In re Lynch, dignity.” notions of human and offends fundamental conscience 424.) at 8 Cal.3d supra, the courts have in In re three Lynch “techniques”
The court spoke rule, the offense administer of the “nature of (1) an examination used to offender, both danger to the regard degree with and/or particular (In re 425), (2) a Lynch, supra, 8 Cal.3d at p. comparison to society” present serious for more with the prescribed of the challenged penalty punishments of the (id. 426), (3) at “a comparison jurisdiction p. offenses in same offense in for the same with the prescribed challenged penalty punishments (id. or similar constitutional provision” an identical having other jurisdictions standard, history the federal a defendant’s omitted). at italics As under offender, recidivism, and the of the nature of the offense which is part v. (1996) 43 Cal.App.4th (People Cooper harsh justifies punishment. 106]; Weaver v. 161 Cal.App.3d People
823-824 Cal.Rptr.2d [51 419].) 125-126 Cal.Rptr. to of his current offenses Defendant minimizes the severity We do not share “de minimis as felonies go.” to them as register, referring that view. so, earlier, and reasonably California has recognized,
As noted to of their tendency because danger society sex offenders serious present invade the deepest offenses not only their sexual offenses. Sexual repeat emotional cause may permanent of a human being, thereby privacies of, to, death harm result in serious physical but scarring, they frequently “ Hence, registration’ for continued necessary ‘it is provide the victim. welfare of safety general the statutory purpose protecting effectuate Court, Defend 15 Cal.4th (Wright Superior supra, public.” right ignore society’s and thus duty ant’s willingness ignore “de minimis” seem may over sexual offenders some control to maintain from sexual him itself a society seeking protect not seem so to but does and attempted convictions for rape history Defendant’s prior predators. *14 seven rape, years shows that he is one of those approximately apart, persons who law enforcement needs to have available for surveillance “readily police Here, defendant, at all times.” without excuse or admitted legal justification, failed to after having 1997 because he had other We see “priorities.” “de minimis” either in the nothing offenses in the in the abstract or circumstances their attending commission. offender,
Similarly, the nature of the considering we have already record, outlined the highlights of his criminal which demonstrates that he has been of violent sexual conduct guilty and other violent conduct and has dedicated a himself to life of crime from the age 18 in when he was convicted of burglary 46 in when he convicted through age of controlled possession substance paraphernalia. re Lynch second
Regarding defendant’s “technique,” comparing California, with the penalty for different punishments offenses in prescribed defendant concedes that “all three strikes defendants with a current conviction will receive the same sentence without to the current regard felony.” Defend- ant thus that his sentence is recognizes no more severe than that of other any defendant criminal California with a similar who is convicted of a history felony. the third In re Lynch
Finally, regarding defendant a “technique,” presents survey across the registration While it is fair to requirements country. say that the various states treat the issue of of sexual offenders in registration diverse defendant widely ways, concedes that seven states treat a failure to as felonies carrying of from one to 12 on penalties years, depending statutes, their (Texas) recidivism would assess term of life or a term of 25 to and one would sentence an offender (Mississippi) such as to life without if it Even could be said that parole. defendant’s decreed penalty for the offense in a punishments significant “exceed[s] (In re Lynch, number of . . .” supra, jurisdictions] 427), 8 Cal.3d at [other but one measure of excessiveness. And viewed against backdrop the other two In re Lynch considerations, of the laws in other comparison states is not so that it demands a significant of excessiveness in this finding instance. record,
On this defendant’s sentence does not shock the conscience or offend fundamental notions of human It does not violate Califor dignity. nia’s Constitution.
V* Prior Convictions Ruling Regarding Trial Court’s The
Disposition is The affirmed. judgment
Morrison, J., concurred. I, II, SIMS, J., P. Acting I concur in and Dissenting. parts Concurring III of the majority opinion. IV, conclusion, that the the in part
I dissent from respectfully majority’s In my constitute cruel or unusual sentence in this case does not punishment. 2, view, 25 life on count plus two-year defendant’s sentence of 3, cruel or unusual punishment sentence on count constitutes consecutive under the California Constitution. 1, in
Article
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921],
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The offenses for which defendant was convicted in this case—failure to register—are nonviolent Before obviously offenses. failure (See Code, *16 was a misdemeanor offense. former Pen. subd. (g)(1); § 1993, 8, now, Stats. ch. 3134.) Even violation section § (without “strikes”) is the lowest triad of prior by punishable punishments: months, Code, 290, (Pen. or two or three subd. years. (g)(2).) §
The make much of majority defendant’s record offenses justify However, ground. sentence on this defendant primarily committed his most recent sex offenses some 23 He years ago, in 1981. committed his most recent offense in nine felony 1990—more than he failed to years before register. Defendant’s are old and felony offenses stale his recent prior years nine life—indicates that he had conduct—exemplified by felony-free turned the comer on his felonious past. offender, the nature of the on considering evidence this record is uncontradicted that was
(including probation report) suffering AIDS, homeless, street, from that he became that he was living on that eventually he moved in with his sister-in-law several months. The reason that defendant tendered for register—that he was failing dying AIDS and was consumed by it—is uncontradicted on record and this entirely plausible. a
This is This in pathetic case. is not a case which defendant has done of a anything to term of 25 to life in state let justify imposition years prison, (on alone the draconian consecutive term two-year 25-year-to-life of the top term) for on his birthday.
It is no answer to we are say society from contamination protecting by not, not, (and argue). with AIDS do not so We do should majority state constitutionally cannot incarcerate because have a persons prison they (Robinson disease like AIDS. 370 U.S. 666-667 [8 California criminal L.Ed.2d 82 S.Ct. a narcotics addiction making 1417] [statute clause].) offense violated cmel and unusual punishment What we sending are man to state doing 52-year-old dying prison life? What has become of our years society? Why has “compassion” become a word law? be dirty in the There can no without a fair justice that, think measure I in an case. some from compassion appropriate I, represents therefore held “new article section an invalid of the California revision (Id. 355.) Constitution.” ask, will “What now, read this case and law and law students will professors earth they thinking?” on were whole, in this case is so this record the sentence imposed as
Considering inflicted that it shocks my for which it is crime disproportionate (In re dignity. fundamental notions human conscience and offends my defendant’s uncon- Lynch, supra, Cal.3d Because sentence stitutional, to strike defend- refusing the trial court abused its discretion contends, strikes, would have striking because the strikes ant’s as defendant sentence. allowed the court constitutional impose remand to the trial court for I would affirm defendant’s convictions and resentencing. 17, 2004, and
A for a was denied November appellant’s petition rehearing denied 2005. January for review Court was by Supreme petition *17 J., did not George, C. therein. participate