Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F9049
BUTZ, J.Defendant Phillip Glenn Brooks was found guilty after a court trial of possessing a deadly weapon (a sap) in violation of Penal Code section 12020, subdivision (a). Defendant admitted and the court found true that defendant had three prior strikes and had served two prior prison terms. (§§ 667.5, subd. (b), 1170.12.) Sentenced to 27 years to life in state prison, defendant appeals. He contends: (1) there was insufficient evidence to support his conviction; (2) the trial court abused its discretion in denying his motion to reduce his offense to a misdemeanor; (3) the trial court abused its discretion in refusing to dismiss one or more of his prior strikes; and (4) his sentence constitutes cruel and unusual punishment in violation of the state and federal Constitutions. We shall affirm.
Undesignated statutory references are to the Penal Code.
Prior to the trial, defendant pleaded guilty to possession of marijuana while driving. (Veh. Code, § 23222, former subd. (b).)
FACTUAL BACKGROUND
On October 6, 2008, Redding Police Officers Brian Cole and Timothy Renault were on patrol when they saw a white pickup truck go through an intersection. Cole noticed that the truck was missing a front license plate, the registration tags were expired and several of the tires appeared to lack sufficient tread. The officers made an enforcement stop.
Officers Cole and Renault approached the truck and contacted defendant and his passenger, Eugene Rodriguez. The first thing Cole noticed was the odor of marijuana coming from the interior of the truck. When the officers told defendant they could smell marijuana, defendant replied that he had approximately an “eighth of weed” in the truck and gave officers consent to search the pickup.
Near the center console, Officer Cole found a plastic Ziploc bag containing marijuana. Cole then saw a piece of leather partially obtruding from under the driver’s seat, only inches from where defendant’s right leg would be while driving and within arm’s reach. Upon retrieving the item, he determined it was a 14-inch sap. When Cole asked defendant about the item, defendant stated, “I believe it’s called a ‘sap.’” When asked why he had it next to his seat, defendant replied that it was for his “protection.”
Officer Cole testified that a “sap” is a weapon that consists of a piece of lead weight wrapped in leather. It is usually approximately 12 inches in length. The handle or strap can be wrapped around the hand and the lead end is used to strike people.
Officer Will Williams also testified regarding saps. Saps are made of leather with a lead-based end to create weight, and are often spring-loaded. These handheld weapons can vary in length and are designed to incapacitate another person by striking blows to the head. Williams identified the item recovered from defendant’s truck as a sap. Although some of the older peace officers used to carry saps, this was the first time he had seen a citizen possess one.
Two individuals, Leonard Malecke and Richard Bischof, testified that they worked with defendant on painting jobs. They both recalled that defendant had purchased a box of miscellaneous painting items at a yard sale and the sap was in that box. Bischof came up with the idea of using the sap to close the lid on paint cans, and both Malecke and Bischof had seen defendant use it in this manner. Bischof also testified that he had been with defendant when he was pulled over on two other occasions and, on both occasions, officers had searched the truck, found the sap, and said nothing.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support his conviction for possessing a deadly weapon because there was insufficient evidence that the item he possessed was a “prohibited weapon” as defined by statute. His argument has no merit.
Section 12020, subdivision (a) provides, in pertinent part: Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [¶] (1)... possesses any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any fléchette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade or metal replica handgrenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.” (Italics added.)
Black’s Law Dictionary defines a “sap” as “[a] club, a blackjack, a hose containing rocks in the middle, or any other object generally used as a bludgeon.” (Black’s Law Dict. (9th ed. 2009) p. 1460, col. 1 [“sap”].) To obtain a conviction, the prosecution must prove that the item had the necessary characteristic to fall within the statutory description. (People v. King (2006) 38 Cal.4th 617, 627.)
Here, Officers Williams and Cole both explained the characteristics of a sap and how a sap is used, and further testified that the item defendant possessed was a sap. Indeed, when asked about the item, defendant himself told Officer Cole it was “a sap” and that he had it for his “protection.” Thus, defendant’s argument that there was insufficient evidence that the item was a sap rings hollow.
To the extent that defendant argues the item was not a sap because there was evidence he had been using it in ways other than as a weapon, that argument lacks merit. As defendant acknowledges, section 12020 “does not define the prohibited items by the means of their use.” (People v. Mayberry (2008) 160 Cal.App.4th 165, 169-170.) A sap is a sap—and it is prohibited. In any event, Officer Cole testified that defendant told him he had the sap for his protection. Thus, even if defendant also used the sap for benign purposes, there was substantial evidence he possessed it for purposes of a weapon as well.
II. Section 17, Subdivision (b) Motion
Defendant next contends the trial court abused its discretion in denying his request to reduce his offense to a misdemeanor under section 17, subdivision (b) (section 17(b)). We disagree.
Under section 17(b), the trial court has the discretion to reduce a “wobbler” offense from a felony to a misdemeanor by imposing a punishment other than state prison (§ 17(b)(1)) or by declaring the offense a misdemeanor upon a grant of probation (§ 17(b)(3)). (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) The decision whether to reduce a felony to a misdemeanor is dependent on facts specific to the particular defendant being sentenced, including a “reasoned consideration of [the] defendant’s background and circumstances.” (People v. Dent (1995) 38 Cal.App.4th 1726, 1731.)
It is defendant’s burden to demonstrate that the trial court’s denial of his motion to reduce was irrational or arbitrary. (See Alvarez, supra, 14 Cal.4th at p. 977.) “‘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.’” (Alvarez, at pp. 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Defendant argues that his strike convictions, two residential burglaries in 1993 and an assault with a firearm in 1994, were remote and, therefore, favor mitigation. A more complete account is that defendant, 36 years of age, began his criminal career at age 14. He was convicted of his first two strikes at age 18 and of his third at age 19 while on probation. Once released, he repeatedly violated parole and committed new offenses. He has spent nearly his entire adult life, which includes the time after his strike convictions, incarcerated, with the exception of the four years immediately preceding his new offense. Thus, the “remoteness” of those strike convictions does not inure to his benefit.
Defendant also argues that his offense was “extremely minor” and “victimless.” We do not accept his characterization of possession of an illegal and dangerous weapon by a convicted felon as such. He also argues that he was cooperative and well-behaved in court. While this may be true, it does not render arbitrary the trial court’s decision not to reduce his offense to a misdemeanor.
In sum, we find no abuse of discretion.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
In a similar argument, defendant contends the trial court erred in declining to strike his prior serious felony convictions for the purposes of sentencing. Again, we disagree.
Section 1385, subdivision (a) gives the trial court authority to dismiss an action “in furtherance of justice.” A court may use section 1385 to strike prior serious felony convictions for purposes of sentencing, “subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Likewise, a court’s decision not to strike a prior conviction “is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
In deciding whether to strike a prior conviction so a defendant will not fall within the three strikes sentencing scheme, a 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 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 (Williams).)
Striking a prior serious felony conviction is a departure from the sentencing norm. Thus, in reviewing the denial of a Romero decision, we will reverse only if the defendant shows the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.)
Here, we set forth a more detailed summary of defendant’s criminal history. Defendant, born in 1974, is 36 years old. He began his criminal career at the age of 14, beginning with batteries and graduating to receiving stolen property and attempted robbery. Immediately upon becoming an adult, he was convicted of driving under the influence and possession of drugs. At age 18, he was convicted of his first two strike offenses for residential burglary and sentenced to over five years in prison. Execution of his prison sentence was suspended, but less than a year later, defendant violated probation with a new strike offense for assault with a firearm, as well as convictions for possession of drugs and possession of an illegal weapon. In that case, defendant had “pistol whipped” the victim with a.45-caliber handgun and, during the beating, the firearm discharged into the car where two passengers were present. After being released on parole, he was returned to prison for parole violations time and again from 1997 to 2000. In 2000, he was convicted of a new felony for possession of drugs and sentenced to four years in prison. Upon his release, he again violated parole and was returned to prison to finish his term in 2004.
Defendant has been abusing substances, including methamphetamine and marijuana, since the age of 14, and has received substance abuse treatment in the past. He claims he had remained substance free for four years following his treatment in 2003; however, he had returned to his abuse of illegal substances, and began abusing alcohol as well, prior to his commission of the instant offense. A court may consider a drug-addicted defendant’s failure to address his addiction as a factor showing the defendant’s propensity for reoffending. (Williams, supra, 17 Cal.4th at pp. 161, 163.)
Defendant again argues that the severity of his criminal record should be minimized because his prior strike convictions are “remote.” As we previously explained, however, the fact that 15 years has passed since his last strike is not significant, as he has been in custody for most of that time and has not refrained from committing additional offenses. (See Williams, supra, 17 Cal.4th at p. 163.)
In sum, defendant has repeatedly demonstrated that he is dangerous and does not intend to live by the laws that govern civilized society. The trial court did not abuse its discretion in determining that defendant does not fall outside the spirit of the three strikes scheme.
IV. Cruel and Unusual Punishment
Finally, defendant contends his sentence was cruel and/or unusual in violation of his rights under the federal and state Constitutions. He did not, however, attempt to make this argument in the trial court.
Though it overlaps in some respects, litigation over a court’s exercise of its discretion under section 1385 to strike a recidivist finding does not reach all of the criteria relevant to the claim of constitutionally excessive punishment. (People v. Cole (2001) 88 Cal.App.4th 850, 868-869.) Raising this issue for the first time on appeal not only omits the additional facts on which we determine this question of law (People v. Martinez (1999) 76 Cal.App.4th 489, 496), it also deprives the People of any opportunity to develop a factual record in support of the constitutionality of the sentence (cf. Cole, supra, 88 Cal.App.4th at pp. 868-869 [unfair to consider this claim on appeal where not litigated in trial court as part of guilty plea, in addition to being barred for lack of certificate of probable cause]). This is why we apply the rule of forfeiture to plenary consideration of the issue initially on appeal (People v. Norman (2003) 109 Cal.App.4th 221, 229), in accord with the general principle that a court should not exercise its discretion to allow a litigant to raise a legal issue initially on appeal to obtain a reversal (see Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 589).
In any event, his contention lacks merit.
“A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California and the court should not lightly encroach on matters which are uniquely in the domain of the Legislature.” (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.) A defendant who wishes to show that a sentence is cruel or unusual under the state Constitution must satisfy one or more of three criteria for demonstrating a disproportionate punishment. The first examines the nature of the offense and the offender with particular attention to the degree of danger each may present to society. The second compares the sentence with those for similar offenses under California law, which includes consideration of a defendant’s recidivism and not just the current offense. The last compares the sentence with those in other states, which for the purpose of challenging California’s recidivist statutes generally avails a defendant nothing. (In re Lynch (1972) 8 Cal.3d 410, 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1516; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.)
Defendant limits his argument to the first and third criteria under our state Constitution (although he adverts in passing to the existence of the remainder under both Constitutions).
Here, with respect to the first criterion, as we have explained in part III, ante, defendant’s criminality was prolonged and consistent. His punishment was not grossly disproportionate in light of that record. (See People v. Poslof (2005) 126 Cal.App.4th 92, 109; People v. Meeks (2004) 123 Cal.App.4th 695, 709-710.)
With respect to the third criterion, most states have enhanced sentences for habitual offenders. (See People v. Martinez, supra, 71 Cal.App.4th at p. 1513.) Defendant bears the burden of proving “a significant disproportion between a challenged penalty and that imposed for the same crime by our sister states....” (People v. Wingo (1975) 14 Cal.3d 169, 179; In re DeBeque (1989) 212 Cal.App.3d 241, 255.)
Defendant performs a survey of several other jurisdictions, and compares the potential sentences he may have received. He then claims his punishment is disproportionate when compared to punishments for the same offense in Idaho, Washington and West Virginia. However, the distinctions he makes regarding those three states deal primarily with the framework of the recidivist statutes, not the punishment. As defendant acknowledges, the maximum sentence he could receive in each of those states is life in prison. Defendant points to discretionary procedures in those states to support his argument that the punishments are less “draconian.” He ignores that, as he has previously argued, California also provides for discretion to reduce his punishment, in the form of motions to reduce the offense to a misdemeanor (for wobblers) and motions to strike prior offenses under section 1385. Thus, his distinctions lack import.
Defendant also argues that Nebraska and Rhode Island require that the first two prior convictions include prison commitments and Vermont requires four (rather than three) prior felonies. Defendant does not note, however, that he has had three prior felony state prison commitments and had four prior felony convictions. Thus, his comparison with these states does not assist him.
In any event, “[t]hat California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California 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.’” (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
In sum, we conclude that defendant’s sentence is not grossly disproportionate to his offense.
Finally, in considering a federal constitutional challenge, the steps of the analysis are virtually identical to those applied by California courts under the state Constitution. (People v. Ayon (1996) 46 Cal.App.4th 385, 396, disapproved on a different ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) Our review of United States Supreme Court jurisprudence on this subject reveals no violation of the federal prohibition against cruel and unusual punishment. (See Lockyer v. Andrade (2003) 538 U.S. 63, 76-77 [155 L.Ed.2d 144, 159] [two consecutive 25-year-to-life terms for conviction on two petty theft charges not cruel and unusual]; Ewing v. California (2003) 538 U.S. 11, 30-31 [155 L.Ed.2d 108, 123] [25 years to life for grand theft of golf clubs was not cruel and unusual]; Rummel v. Estelle (1980) 445 U.S. 263, 266 [63 L.Ed.2d 382, 386] [life sentence under Texas recidivist statute for obtaining $120.75 by false pretenses after previous convictions for credit card fraud and passing a forged check does not violate U.S. Const.].)
DISPOSITION
The recent amendments to section 4019 do not operate to modify defendant’s entitlement to credit, as he has three prior convictions for serious or violent felonies. (See § 4019, former subds. (b)(2) & (c)(2) [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], § 1192.7, subd. (c)(18); see also §§ 4019, 2933, subd. (e)(3) [Stats. 2010, ch. 426, §§ 1, 2, 5].)
We concur: NICHOLSON, Acting P. J., MAURO, J.