Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. Nos. FSB051067 & FSB052771. Donna G. Garza, Judge.
Janet J. Gray, 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, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado Rucci, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
INTRODUCTION
Defendant Terry Carr appeals his indeterminate prison sentence of 28 years to life as cruel and unusual punishment in violation of the state and federal Constitutions. We will affirm.
FACTS AND PROCEDURAL HISTORY
Defendant, who was on parole at the time, was sound asleep on a sofa when state law enforcement officers entered his apartment on October 26, 2005. After awakening him, the officers conducted a search and found a glass pipe for smoking methamphetamine and a baggie containing a useable amount of methamphetamine in his pants pockets. They also found three baggies, each containing a useable amount of cocaine, in a pocket in his sweatshirt. On the sofa officers found $44 in various denominations: fourteen $1 bills, two $5 bills, and one $20 bill.
At first defendant denied that any of the items belonged to him. However, he later waived his Miranda rights and, in an unrecorded conversation, spoke to San Bernardino Police Officer Anthony White. As they rode to the police station together, defendant told Officer White that the methamphetamine was for his personal use and the cocaine was for sales to support his methamphetamine habit. Defendant also told Officer White that if he were to be tested at that time, he would be positive for both methamphetamine and cocaine.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant was charged by information with two felonies: possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count 1) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 2). In addition, the information alleged that defendant had suffered two prior strikes (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); had two prior felony convictions (Health & Saf. Code, § 11370.2, subd. (a)); and had served four prior prison terms without remaining free of custody for a period of five years (Pen. Code, § 667.5, subd. (b)).
At trial, Officer White and other investigating officers testified to the facts of defendant’s arrest and the items found in his possession as outlined above. Based on the amounts of the drugs found, their packaging, the denominations of the currency, the presence of a methamphetamine pipe and the absence of paraphernalia for cocaine use, Officer White, who had had extensive training and experience in narcotics investigation work, opined that in fact the methamphetamine was probably for personal use and the cocaine was for sale.
Defendant testified in his own defense. Although he later admitted to a probation officer that he was a drug addict, on the stand he insisted that he had not bought or sold any drugs on October 26, 2005. Defendant believed that the officer who searched him took the drugs alleged to be his out of the officer’s own shirt pocket. Defendant said he never told Officer White that he sold cocaine to support a methamphetamine habit. He said that $14 of the $44 found on the sofa belonged to his father and $30 belonged to him and that none of the money was drug money.
On July 5, 2006, a jury convicted defendant of two counts of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). The next day the court found that defendant had suffered the two strikes and the four prison priors. The priors included four separate felony convictions for transportation of controlled substances (Health & Saf. Code, § 11352); tampering with a vehicle (Veh. Code, § 10852); kidnapping and robbery with use of a firearm (Pen. Code, §§ 207, 211); and spousal battery (Pen. Code, § 243, subd. (e)(1)).
On March 16, 2007, defendant filed a Romero motion asking the court to strike one or both of his prior serious felony convictions: the kidnapping and robbery offenses from 1992. Defendant argued, among other things, that he had a substance abuse problem and had not had a chance to participate in rehabilitation programs, and that a 25-year-to-life sentence was effectively “a death sentence.” Defendant asked the court sentence him to “a more human, more reasonable and a fair sentence of less than 25 years to life.” At a hearing on March 20, the court denied defendant’s Romero motion, noting specifically that considering his history as a repeat offender it could not find that he fell outside the spirit of the “Three Strikes” law.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Also on March 20, the court found that by committing the current offense, defendant had violated the terms of a Vargas waiver agreement made on September 9, 2005. According to that agreement, a seven-year sentence for a Health and Safety Code section 11379 conviction with priors would have been reduced to three years if defendant had complied with its terms.
People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).
The court sentenced defendant to 28 years to life in state prison: 25 years to life for count 1; a concurrent term of 25 years to life for count 2; another concurrent term of seven years for the Vargas agreement violation; plus a one-year enhancement for each of three of the four section 667.5, subdivision (b), prior prison terms it had found. The court failed to impose an enhancement for the fourth prison prior.
DISCUSSION
Cruel and Unusual Punishment:
While acknowledging that recidivist sentencing statutes have been upheld as constitutional, defendant nonetheless insists that California’s Three Strikes law as embodied in Penal Code sections 667 and 1170.12 is unconstitutionally cruel and unusual. The People reply that defendant’s claims have been addressed before and should be rejected. We agree with the People.
The People also note, somewhat cryptically, that defendant did not object below to his sentence as a constitutional violation of the prohibition against cruel and unusual punishment. In response defendant admits that this issue was not raised below and spends some effort in his reply brief arguing that we should nonetheless consider his appeal on it merits. We find that defendant did raise this issue, if somewhat indirectly, by way of his Romero motion’s assertions that the proposed third strike sentence for his drug crimes was “draconian” and essentially “a death sentence” and requesting a “more human, more reasonable and a fair sentence of less than 25 years to life.”
Within the confines of constitutional prohibitions against cruel and unusual punishment, defining crimes and prescribing penalties are legislative functions. (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).) However, the determination of whether a penalty exceeds constitutional limits is a judicial function. (People v. Anderson (1972) 6 Cal.3d 628, 640.) A punishment may violate state and federal constitutional prohibitions against cruel and unusual punishment if it is “grossly disproportionate to the offense for which it is imposed.” (People v. Dillon (1983) 34 Cal.3d 441, 478; see also id. at fn. 25.) A disproportionate punishment is one that “‘shocks the conscience and offends fundamental notions of human dignity.’” (Id. at p. 478, citing Lynch, supra, at p. 424.)
Three factors to be used in determining proportionality under California law include the nature of the offense and/or the offender and the degree of danger each presents to society, the severity of the punishment for the instant offense compared to that prescribed for other more serious offenses committed in the same jurisdiction, and the severity of the punishment imposed in this jurisdiction compared to that imposed in other jurisdictions for the same offense. (Lynch, supra, 8 Cal.3d at pp. 424-427.) Similar factors are used to determine proportionality under the Eighth Amendment to the United States Constitution: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” (Solem v. Helm (1983) 463 U.S. 277, 292.)
Defendant first supports his claim of disproportionality by characterizing his possession of “a very small amount” of drugs for “personal use” as a relatively minor crime that does not merit the kind of sentence “that until more recent times, was reserved for a first degree murderer.” Defendant misses the point. His sentence is not for two counts of possession of a small amount of drugs for personal use. His sentence is for being a recidivist with a 20-year history of criminal convictions and for failing to conform his conduct to the requirements of the law despite many opportunities to do so.
Defendant’s opening brief relies extensively on a Ninth Circuit case, Andrade v. Attorney General of State of California (9th Cir. 2001) 270 F.3d 743, which was reversed by the United States Supreme Court in Lockyear v. Andrade (2003) 538 U.S. 63. Defendant realized his mistake and on February 27, 2008, filed an “Errata Letter” with this court apologizing for the mistake and seeking to delete references to the earlier case while noting that the cases on which the Ninth Circuit relied were still valid and applicable to his discussion. We accept defendant’s apology.
Defendant’s record goes back to 1985. Over the course of his criminal career, he received five separate grants of probation, which he violated virtually every time. In 1992, he was convicted of kidnapping and robbery and given a 14-year prison sentence, but obviously did not serve the whole sentence since he committed another violent offense, spousal battery, less than 10 years later. Eight more months in jail and another grant of probation did not deter defendant, and on September 9, 2005, he pled guilty to another controlled substance transportation charge. (Health & Saf. Code, § 11379, subd. (a).) For this offense, the court cut him another deal in the form of a Vargas waiver agreement in which a seven-year sentence would have been reduced to three years and a prior strike allegation dismissed—making him eligible to serve only half of the three years—if he would just refrain from violating the law. But he did not. Defendant is a chronic offender whom nothing is able to stop, “one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.” (Rummel v. Estelle (1980) 445 U.S. 263, 284.) He and his offenses together present a serious danger to society.
Defendant also insists that his sentence is cruel and unusual because, he says, it is “grossly disproportionate” to sentences imposed for crimes like rape, second degree murder, and manslaughter. We again remind defendant that his sentence is not just for his current drug possession convictions. It is for being a habitual offender whose 20-year history includes violent crimes very similar to those he cites as examples. In his case, they are kidnapping and robbery with use of a firearm and a specialized form of personal assault, spousal battery. Both federal and state courts have held that a sentence of 25 years to life for such an offender is not so disproportionate as to constitute cruel and unusual punishment. (Rummel v. Estelle, supra,445 U.S. at pp. 284-285; People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
With regard to the third Lynch factor, defendant argues that the Three Strikes law in California is harsher than similar statutes in most other states because here the third strike felony may be a nonviolent offense. Thus, defendant insists, in California it is the order in which crimes are committed, not the nature of the crimes themselves, which determines the severity of punishment and makes this state’s scheme unconstitutional. Even if it is true that California’s Three Strikes law is the harshest in the nation, however, we would find that fact irrelevant. There is no requirement that punishment for a given crime in this state be measured by that in another jurisdiction. (Rummel v. Estelle, supra,445 U.S. at pp. 284-285; People v. Cooper (1996) 43 Cal.App.4th 815, 827.) As the United States Supreme Court said in declining to find a sentence of life imprisonment for a recidivist defendant whose third felony conviction was for theft of $120.75 unconstitutionally cruel and unusual: “Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State.” (Rummel v. Estelle, supra,at p. 282.)
In sum, we do not find defendant’s sentence under California’s Three Strikes law so disproportionate as to constitute cruel and unusual punishment.
Unauthorized Sentence:
Although neither party has raised the issue, as we have noted the trial court did not impose an enhancement for defendant’s fourth prison prior. Section 667.5, subdivision (b), provides that “where [a] new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony.” (Italics added.) Trial courts have a duty to impose sentences in accordance with the law. (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.) However, section 667.5, subdivision (b), enhancements are subject to the exercise of the court’s discretion to strike pursuant to section 1385, subdivision (a). (Ibid.) To neither strike nor impose a prior prison term enhancement results in a legally unauthorized sentence, one subject to correction for the first time on appeal. (Id. at p. 391.) An unauthorized sentence is one that cannot lawfully be imposed. (People v. Scott (1994) 9 Cal.4th 331, 354.)
At the sentencing hearing, the court failed to impose the one-year enhancement required by the statute for defendant’s fourth pled and proven prison prior (case No. BA10503). Nor did it strike the enhancement. Defendant’s final sentence of 28 years to life was thus an unauthorized sentence and one that must be corrected. Rather than order a modification of the sentence here, in the interest of fairness to defendant we will remand for a new hearing and resentencing on the prison prior enhancement. At that hearing, the trial court shall either impose the enhancement or strike it pursuant to its power under section 1385. (People v. Bradley, supra, 64 Cal.App.4th at p. 391.)
DISPOSITION
The sentence is reversed in part and the matter is remanded to the trial court to either impose or strike the enhancement for the prison prior in case No. BA10503. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J. KING J.