Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF117587, Dennis A. McConaghy, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant, Lester Willard Bowers, guilty of possessing a controlled substance for purposes of selling it (Health & Saf. Code, § 11351), and possessing an unauthorized drug in a state prison (Pen. Code, § 4573.8). The trial court found true the allegations that defendant suffered two prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)), one prior serious felony conviction (Pen. Code, § 667, subd. (a)), and 26 prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). The trial court sentenced defendant to state prison for a term of 32 years to life. Defendant contends (1) the trial court erred by not conducting a hearing regarding juror misconduct; (2) the trial court erred by not striking his prior serious felony conviction (§ 667, subd. (a)) because he did not suffer a triggering conviction in the instant case; and (3) his indeterminate state prison sentence violates state and federal constitutional provisions against cruel and unusual punishment. We strike defendant’s prior serious felony conviction (§ 667, subd. (a)), but otherwise affirm the judgment.
All further references to code sections are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On March 12, 2004, defendant was housed at the California Rehabilitation Center in Norco. On March 12, Correctional Officer George Alvarez conducted a search of defendant’s prison cell. Officer Alvarez directed defendant to undress. Defendant gave the officer the boxer shorts that he was wearing. Officer Alvarez discovered five packages of heroin sewn into the front flap or seam of defendant’s boxer shorts. The five bindles of heroin, including the cellophane packaging, weighed a total of 0.82 grams. One package weighed 0.18 grams, without the packaging. Two other bindles weighed 0.3 grams and 0.4 grams, without the packaging.
Correctional Officer Gilbert Cortez testified that it was rare for an imprisoned drug user to have more than one bindle of drugs in his possession. Officer Cortez further testified that 0.18 grams of heroin is a usable amount, and that eight to 12 “hits” could be made from 0.82 grams of heroin. Officer Cortez opined that defendant possessed the heroin for sale, because of the amount of heroin, and the manner in which the drug was packaged.
DISCUSSION
A. Juror Misconduct
1. Facts
On October 3, 2007, during a recess, defendant’s trial counsel moved the court to remove Juror No. 4 from the jury, and substitute an alternate juror. Defendant’s trial counsel said that Juror No. 4 “had come by and was nodding, smiling to the district attorney” at the end of a break. Additionally, defendant’s trial counsel said that, in the morning, Juror No. 4 said, “good morning” to the prosecutor, but ignored defense counsel. The prosecutor did not respond to the juror’s greeting. Defendant’s counsel argued that Juror No. 4’s actions showed a bias in favor of the prosecution. The court denied defendant’s motion, but instructed the jurors not to speak to the attorneys.
Later the same day, defendant’s trial counsel again moved the court to relieve Juror No. 4 and substitute an alternate juror. Defendant’s counsel stated that Juror No. 4 “came up [and] nodded again to [the prosecutor].” Defendant’s trial counsel argued that Juror No. 4’s “course of conduct... indicates a bias in favor of the prosecution.” The court denied defendant’s motion.
2. Discussion
Defendant contends the trial court erred by not conducting a hearing on his motions to discharge Juror No. 4 and substitute an alternate juror. We disagree.
When good cause is shown, a juror may be discharged and an alternate substituted in the juror’s place. (§ 1089.) “[N]ot every incident involving a juror’s conduct requires or warrants further investigation.” (People v. Cleveland (2001) 25 Cal.4th 466, 478.) A court is required to conduct a hearing regarding allegations of juror bias “‘“where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case.”’ [Citation.]” (People v. Watson (2008) 43 Cal.4th 652, 695.) “Ultimately, the decision whether to investigate [the possibility of juror bias] is within the discretion of the trial court. [Citation.]” (Ibid.; People v. Burgener (2003) 29 Cal.4th 833, 878.) Accordingly, we review the trial court’s decision for an abuse of discretion. (Cleveland, at p. 486.)
In his opening brief, defendant asserts that the failure to conduct an inquiry into Juror No. 4’s alleged bias violated defendant’s federal constitutional rights to a fair trial, an impartial jury, and effective assistance of counsel. Contrary to defendant’s position, “failure to conduct a sufficient inquiry is ordinarily viewed as an abuse of discretion, rather than as constitutional error.” (People v. Pinholster (1992) 1 Cal.4th 865, 928.) Accordingly, we review the trial court’s decision for an abuse of discretion.
Juror No. 4 allegedly nodded, smiled, and greeted the prosecutor; if these allegations were true, then they would not have supported a finding that the juror was “‘unable to perform his duty’ and thus subject to discharge and substitution under section[] 1089.” (People v. Keenan (1988) 46 Cal.3d 478, 532.) A greeting, smile, and head nods do not support a conclusion that a juror is so biased against the defense that he is unable to perform his duty. Defendant’s trial attorney speculated that the juror’s actions indicated bias; however, the record does not support that assumption. (See People v. Bennett (2009) 45 Cal.4th 577, 621.) Accordingly, we conclude the trial court did not err by not conducting an inquiry into Juror No. 4’s alleged misconduct.
B. Serious Felony Enhancement
Defendant contends that the trial court’s true finding on the prior serious felony enhancement (§ 667, subd. (a)) must be stricken, because defendant did not suffer a triggering conviction. The People support defendant’s argument. We agree.
The prior serious felony enhancement is applicable when a defendant is convicted, in his current case, of a serious felony. (§ 667, subd. (a)(1); People v. Dotson (1997) 16 Cal.4th 547, 555.) Defendant’s convictions in the instant case do not qualify as serious felonies. (§ 1192.7, subd. (c).) Accordingly, the prior serious felony enhancement is not applicable to the current case, and must be stricken.
The trial court imposed a consecutive prison term of five years for the prior serious felony (§ 667, subd. (a)). Accordingly, defendant’s sentence must be modified from 32 years to life, to 27 years to life.
C. Cruel and Unusual Punishment
Defendant contends that imposition of an indeterminate life term for a non-violent, drug offense violates state and federal constitutional provisions against cruel and unusual punishment. Defendant asserts that the sentence amounts to cruel and unusual punishment, because he was 58 years old at the time of his sentencing, and therefore will likely spend the rest of his life in prison for a nonviolent offense. We disagree.
“‘Cruel and unusual punishment is prohibited by the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.] ‘“A tripartite test has been established to determine whether a penalty offends the prohibition against cruel... [or] unusual punishment. First, courts examine the nature of the offense and the offender, ‘with particular regard to the degree of danger both present to society.’ Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the ‘totality of the circumstances’ surrounding the commission of the offense. [Citations.]” [Citation.]’ [Citations.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 568-569 (Sullivan).)
“‘Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.’ [Citations.]” (Sullivan, supra, 151 Cal.App.4th at p. 569.)
First, we consider the nature of the offense and the offender. As to the offender, “‘the inquiry focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.’ [Citation.]” (Sullivan, supra, 151 Cal.App.4th at p. 570.) Defendant was 55 years old at the time of the offense in the instant case. Defendant’s juvenile delinquency record began in 1964, and included true findings on battery, assault with a deadly weapon, and parole violations. Defendant’s adult conviction record began in 1972, and included, most recently, convictions for one count of attempted murder with great bodily injury and use of a gun, on January 7, 1991 (§§ 664, 187, 12022.7, 12022.5); and 24 counts of second degree robbery with use of a firearm, on January 7, 1991 (§§ 211, 12022.5). At the time of the offense in the instant case, defendant was serving a 35-year sentence for shooting a robbery victim in his abdomen.
Defendant’s criminal history shows that he is an incorrigible recidivist offender who cannot stop committing crimes even while in prison. Defendant is “‘precisely the type of offender from whom society seeks protection by the use of recidivist statutes.’ [Citation.]” (Sullivan, supra, 151 Cal.App.4th at p. 570.) Defendant’s unrelenting criminal conduct supports the imposition of the indeterminate “Three Strikes” term. (Ibid.)
Second, as to defendant’s sentence compared to other sentences within our state’s jurisdiction, defendant has failed to establish that his sentence is excessively harsh. In fact, defendant concedes that “current California law holds that an indeterminate life sentence does not constitute cruel and unusual punishment even when the current offense is relatively minor. (People v. Mantanez (2002) 98 Cal.App.4th 354, 356; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.)” Neverthless, defendant asserts that his “punishment is uniquely severe even in the context of other California recidivist statutes.” Defendant, relying on section 190.05, asserts that a recidivist murderer would be eligible for a lesser sentence than that imposed upon defendant. Under section 190.05, subdivision (a), “[t]he penalty for a defendant found guilty of murder in the second degree, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life.”
Defendant’s proffered comparison is flawed. Section 190.05 punishes a person who has one prior conviction for murder. In this case, defendant’s most recent convictions consisted of one count of attempted murder with great bodily injury and use of a gun (§§ 664, 187, 12022.7, 12022.5), and 24 counts of second degree robbery with use of a firearm (§§ 211, 12022.5). Defendant’s comparison is flawed because it does not take into account the multiple prior convictions suffered by defendant—a defendant with one prior conviction does not stand in the same position as a defendant with multiple prior convictions, in terms of recidivist sentencing. Further, it is possible that, under section 190.05, a defendant would be sentenced to life without a possibility of parole—a harsher sentence than that received by defendant.
Accordingly, because the Three Strikes law punishes not only defendant’s current offense, but also his recidivism, we conclude that defendant’s sentence is not out of proportion to the punishment for other recidivist offenders in California. (Sullivan, supra, 151 Cal.App.4th at pp. 571-572.)
Third, in regard to defendant’s sentence in comparison to sentences from other jurisdictions, “defendant is required to prove that ‘“... the punishment prescribed for his offense, as compared to that imposed for similar offenses in other jurisdictions, is unconstitutional....” [Citation.]’ [Citation.] If the challenged penalty is found to exceed punishments within the constitutional limit of severity decreed for the offense in a ‘significant number’ of jurisdictions, the disparity is considered ‘a further measure of its excessiveness.’ [Citation.]” (Sullivan, supra, 151 Cal.App.4th at p. 572, fn. omitted.)
“‘[A] comparison of California’s punishment for recidivists with punishment for recidivists in other states shows that many of the statutory schemes provide for life imprisonment for repeat offenders, and several states provide for life imprisonment without possibility of parole.’ [Citation.] [In the instant case, we] conclude, as have other courts when presented with essentially the same issue in similar contexts, that defendant has failed to establish his sentence is disproportionate when compared to recidivist statutes in other jurisdictions. [Citations.]” (Sullivan, supra, 151 Cal.App.4th at p. 573.)
Defendant “acknowledges that recidivist statutes have gained popularity nationally over the last several years and only ten states have not implemented some type of recidivist statute.” (Fn. omitted.) However, defendant asserts that, in other jurisdictions, the statutes take into consideration the nature of the defendant’s current offense, and limit imposition of the harshest punishments to the most serious offenses. Essentially, defendant contends that California’s rigid imposition of a life sentence for Three Strike offenders is disproportionate to the punishment imposed in other jurisdictions.
Reviewing courts have recognized that California’s Three Strikes law is “‘among the most extreme’ [recidivist statute] in the nation, [however,] that factor ‘does not compel the conclusion that it is unconstitutionally cruel or unusual.’ [Citation.] ‘California’s Three Strikes scheme is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders.’ [Citation.] After undertaking a methodical comparison of repeat or habitual offender punishment schemes in other states, the court in People v. Martinez [(1999) 71 Cal.App.4th 1502,] 1516, declared that California is not required ‘to march in lockstep with other states in fashioning a penal code. It does not require “conforming our Penal Code to the ‘majority rule’ or the least common denominator of penalties nationwide.” [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.’” (Sullivan, supra, 151 Cal.App.4th at pp. 572-573 (fn. omitted).)
In sum, defendant’s argument is not persuasive because other states have similar penalties, and the fact that California’s may be more extreme does not make it disproportionate or unconstitutionally cruel or usual. Further, to the extent defendant contends he has been given a life sentence for a non-violent offense, we disagree. Defendant’s sentence is based not only upon his current offense, but also upon his constant recidivism. (Sullivan, supra, 151 Cal.App.4th at p. 571.)
DISPOSITION
The prior serious felony enhancement (§ 667, subd. (a)) is stricken, and defendant’s sentence is modified to 27 years to life. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
We concur: RICHLI, Acting P. J., GAUT, J.