Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA079213, Charles E. Horan, Judge. Affirmed.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary E. Sanchez and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Richard Miranda Alva appeals from a judgment entered following his conviction by a jury trial of two counts of residential burglary (Pen. Code, § 459). In a bifurcated proceeding, the trial court found defendant had suffered two prior convictions of a serious felony (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)) and had served six separate prison terms for a felony (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Defendant’s motion to dismiss one of his prior strike allegations (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) was denied. He was sentenced to an aggregate state prison term of 30 years to life: (1) a term of 25 years to life under the “Three Strikes” law on the first count of residential burglary enhanced by a five-year term for a prior serious felony conviction, and (2) a concurrent term of 25 years to life under the Three Strikes law on the second count of residential burglary enhanced by a five-year term for a prior serious felony conviction. The court dismissed the remaining six prior prison term enhancements.
On appeal, defendant contends the trial court abused its discretion in denying his Romero motion, and his sentence constitutes cruel and unusual punishment. We find no ground for reversal and affirm the judgment.
FACTS
On the morning of May 22, 2007, Olivia Pollard (Pollard) drove home to her apartment in Pomona and watched defendant, a stranger, make two separate trips to another apartment building where Chris Wells lived. After the first trip, defendant returned carrying an armful of clothes on hangers. After the second trip, he emerged holding a shopping bag containing a partially gift-wrapped item. Pollard alerted the apartment complex staff, and police were contacted. Officers arrived where Pollard had last seen defendant and found him with a shopping bag and a shopping cart containing clothes. Defendant attempted to flee, but he was quickly apprehended and subsequently identified by Pollard in a field-show up. Clothes, a computer, and other items found in defendant’s possession were identified by Chris Wells as belonging to her.
DISCUSSION
A. Romero Motion
Defendant contends the trial court erred by refusing to dismiss, for Three Strikes purposes under the authority of Romero, one of his 2001 residential burglary convictions and sentence him as a second-strike offender. He argues the trial court did not consider all of the relevant factors outlined in People v. Williams (1998) 17 Cal.4th 148 in making its determination to reject the Romero motion: “In effect, the court failed to consider the ‘particulars’ of [defendant’s] age and ‘prospects’ in the sense that most crimes, especially violent ones, are not committed by older persons and that even if the court dismissed one of the strikes, [defendant] would not be released until his later years, if ever. [¶] . . . This along with the absence of violence or threat of violence against another in [defendant’s] record establishes that the court abused its discretion in refusing to strike a prior for purposes of sentencing.”
In a negotiated plea, defendant pleaded guilty to two counts of residential burglary in Los Angeles Superior Court case Number BA218619. Although the burglaries were charged in the same information, they involved different incidents, dates and victims.
We are not persuaded by defendant’s argument.
The factors to be considered in ruling on a Romero motion are set forth in People v. Williams, supra, 17 Cal.4th at page 161: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . ‘in furtherance of justice’ pursuant to . . . section 1385[, subdivision] (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.”
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (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 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 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.)
After listening to counsels’ arguments and assessing the appropriate factors identified in People v. Williams, supra, 17 Cal.4th at page 161 and People v. Carmony, supra, 33 Cal.4th at page 378, the trial court determined there was nothing about defendant’s background, criminal history, and present offenses to exempt him from the spirit or intent of the Three Strikes law. In denying the motion, the court noted defendant was 42 years old when he committed the May 2007 residential burglaries and observed, “[W]hat I see is an uninterrupted 19 years of criminal activity. Every time you go in and get out, you are right back to it with remarkable consistency.” The court concluded that under these circumstances it would be an abuse of discretion to grant the Romero motion and to sentence him as a second-strike offender.
The trial court had before it a probation report, which listed defendant’s prior adult convictions as follows: misdemeanor burglary (1988); possession of a controlled substance (1988); false identification to a peace officer (1989); vehicle tampering (1989); grand theft of an automobile (1989); grand theft of personal property (1989); driving or taking a vehicle without the owner’s consent (1990); grand theft (1990); felony burglary (1992); possession of a controlled substance (1993); driving or taking a vehicle without the owner’s consent (1996); possession of a controlled substance (1998); grand theft (1999); and the two residential burglary convictions for which he was sentenced to an aggregate term of 10 years in state prison. The probation report showed defendant was released from state prison in September 2006, and absconded from parole in January 2007 before committing the May 2007 residential burglaries.
We find defendant’s overall record and recidivism constituted a sufficiently compelling reason for the trial court to deny his Romero motion. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 [“the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career”]; see also People v. Carmony, supra, 33 Cal.4th at p. 378 [“‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’”].)
Defendant argues the trial court abused its discretion by not considering his prospects of reoffending in view of his criminal record of non-violent offenses and his age upon release from state prison if he were sentenced as a second strike offender. He cites People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop), which said: “The length of the sentence to be imposed also presents an open-ended inquiry because, when considered in conjunction with the defendant’s age, it presents the trial court with an opportunity to evaluate factors such as how long the state maintains an interest in keeping the defendant as a public charge and after what period of incarceration he is no longer likely to offend again.” (Id. at p. 1251.)
Defendant’s argument disregards the fact his qualifying strike convictions and present convictions were for residential burglary, which is classified as a serious felony (§ 1192.7, subd. (c)(18)), because the invasion of a person’s home creates the potential for violence. Additionally, defendant’s reliance on Bishop is misplaced. First, given that the “‘“burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary”’” (People v. Carmony, supra, 33 Cal.4th at p. 376), Bishop is of little help to defendant because Bishop merely affirmed a trial court’s dismissal of strike priors. “A comparison of the cases is of little assistance to the defendant upon appeal. The Bishop holding does not establish that had the trial court denied Bishop’s motion such a decision would have been arbitrary or irrational. [Citation.] Rather, the holding only establishes that the trial court did not abuse its discretion in striking the two prior felony convictions. [Citation.] [¶] The Court of Appeal in Bishop indicated that it might have denied Bishop’s motion had it been the trial court.” (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.)
Second, “since Bishop predates Williams, it did not apply [its] distinguishable facts to the applicable standard under Williams . . . . Instead, the Bishop court merely suggested that the nature of the present crime (petty theft) and the remoteness of the defendant’s prior violent offenses may operate to mitigate his Three Strikes sentence. It never addressed the overall question whether the defendant should be deemed to fall outside the scheme’s spirit.” (People v. Strong, supra, 87 Cal.App.4th at p. 342.)
Additionally, advanced age is not necessarily a mitigating factor. (See People v. Strong, supra, 87 Cal.App.4th at p. 332 [“middle age, considered alone, cannot take a defendant outside the spirit of the law; otherwise, the very factor that takes a defendant within the spirit of the law—a lengthy criminal career with at least one serious or violent felony—would have the inevitable consequence—age—that would purportedly take him outside it”].)
Here, the court could not overlook the failure of any prior rehabilitative efforts by defendant. He continued to commit criminal offenses over the course of 19 years even after repeatedly serving time in state prison, and was on parole when he committed the present offenses. Such conduct was clearly indicative of defendant’s prospects—his persistent unwillingness or inability to comply with the law. Indeed, defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) The trial court’s determination that defendant did not fall outside the purview of the Three Strikes law—and to the contrary, exemplified the need for the law—was well within its discretion.
B. Cruel and Unusual Punishment
Asserting his current offenses and criminal history were nonviolent, defendant argues his 30-year-to-life sentence is disproportionate under the unique circumstances of this case and therefore constitutes cruel and unusual punishment under the United States Constitution.
Defendant does not contend his sentence violates the ban on cruel or unusual punishment in article 1, section 17 of the California Constitution.
Cruel and unusual punishment is prohibited by the Eight Amendment to the United States Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime for which it was imposed that it shocks the conscience and offends fundamental notions of human dignity. (See Ewing v. California (2003) 538 U.S. 11, 22 [123 S.Ct. 1179, 155 L.Ed.2d 108].) Federal courts have consistently rejected claims that life terms imposed on recidivists like defendant violate the federal ban on cruel and unusual punishment. (Id. at p. 29 [“In weighing the gravity of [defendant’s] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions”]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 1174, 155 L.Ed.2d 144]; Harmelin v. Michigan (1991) 501 U.S. 957, 965 [111 S.Ct. 2680, 115 L.Ed.2d 836]; Rummel v. Estelle (1980) 445 U.S. 263, 284 [100 S.Ct. 1133, 63 L.Ed.2d 382].) Neither the nature of defendant’s current offenses nor his prior criminal history warrants a different conclusion in this case.
Nonetheless, defendant argues that given the punishment specified for more serious crimes, a 30-year-to-life sentence for third strike convictions of nonviolent burglaries is disproportionate to the crimes committed and constitutes cruel and unusual punishment. Defendant argues his circumstances are comparable to those of Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755 (Ramirez). In Ramirez, the Ninth Circuit concluded that a habeas petitioner’s sentence of 25 years to life under California’s Three Strikes law violated the Eight Amendment because it was extreme when compared to the gravity of the most recent offense in the petitioner’s criminal history. (Id. at p. 767.) Although defendant argues his case is analogous to Ramirez, our review of the Ninth Circuit’s fact-specific analysis shows defendant’s case is readily distinguishable. Most significantly, the triggering offense in Ramirez was shoplifting, not residential burglary, and the petitioner’s entire criminal history consisted of two other shoplifting incidents obtained through a single guilty plea with a sentence of one year in county jail and three years probation. (Id. at pp. 757-758, 768-769.) Defendant’s triggering offense and criminal history are considerably more serious.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. WOODS, J.