Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. SF014936A William D. Palmer, Judge.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KANE, J.
Defendant Timothy Michael Groux was convicted of committing oral copulation on his prison cellmate. He was sentenced, as a “third striker, ” to 27 years to life in prison. On appeal, he contends (1) the imposition of a 27-year-to-life sentence for a non-public act of consensual oral copulation constitutes cruel and unusual punishment; (2) the criminalization of oral copulation and sodomy between inmates, but no other form of sexual conduct between inmates, violates equal protection; (3) criminalization of a non-public, consensual sexual act is a denial of due process, even for an inmate; (4) defense counsel was ineffective for failing to raise these constitutional issues; (5) the trial court failed to understand the scope of its discretion to dismiss prior strike convictions; and (6) the evidence was insufficient to prove defendant had served two separate prior prison terms. We will vacate one of the prior prison term enhancements, and affirm in all other respects.
PROCEDURAL SUMMARY
On March 6, 2009, the Kern County District Attorney charged defendant with oral copulation while confined in a state prison (Pen. Code, § 288a, subd. (e); count 1.) The information further alleged that defendant had suffered five prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty as charged and the trial court found the prior conviction and prison term allegations true. Defendant unsuccessfully moved to dismiss the five prior strike convictions.
At sentencing, the trial court granted the prosecutor’s motion to dismiss one of the prior strike convictions. The trial court sentenced defendant to 27 years to life in prison, as follows: 25 years to life on count 1, as a third-strike sentence, plus two consecutive one-year terms for the prior prison term enhancements.
FACTS
Steven occupied the upper bunk in his cell at Wasco State Prison. On July 10, 2008, between 7:00 and 8:00 p.m., Steven was asleep on his bunk when defendant, his new cellmate, arrived. Defendant entered the cell and asked Steven if he “had a problem with a homosexual moving in with [him].” Steven told him he did not have a problem. Steven said he was not there “for telling who can live here and who cannot.” Defendant told Steven that while he was Steven’s cellmate, Steven “didn’t have to worry about any sexual things because [defendant] like[d] to be fucked in the ass and he like[d] to give head.” Steven was shocked and said, “Wow, we’ll talk about this in the morning.” Steven did not agree to have sex with defendant. Steven had already taken his evening medications, which included a sedative that caused him to sleep heavily, so he told defendant to make up his bed and they would talk in the morning.
Steven, who was wearing boxer shorts, went back to sleep covered with a sheet. Sometime after 10:00 p.m., he awoke to find defendant sucking on his penis through the opening of his boxer shorts. Steven slapped defendant on the head and loudly told him to “[g]et the fuck off [him], ” and asked him “what the fuck was he doing.” Steven was “pretty shocked.” Defendant said he thought it was okay because Steven had not objected to it when defendant told him about it. Defendant said he was sorry and asked Steven not to beat him up. Steven got up and told defendant to get on his bunk and stay there. Steven washed himself off and got back onto his bunk. He stayed awake the rest of the night, thinking about what he should do because he did not want everyone to know what had happened.
In the morning, Steven told defendant to pack up his things because he did not want defendant in his cell anymore and he had to move out. Steven told him what he had done was wrong and Steven did not appreciate it. Steven stood by the cell door until the officer opened it. Defendant took his things and left. Defendant informed the officer what had happened. Steven cooperated in the investigation that followed.
At about 8:30 a.m., Officer Rivera spoke to defendant, who waived his rights and agreed to speak to him. Officer Rivera asked defendant, “Did you have … [Steven’s] penis in [your] mouth?” Defendant answered, “Yes, I did.” He said it occurred in the cell.
Officer Medina was responsible for investigating the incident. Steven told Officer Medina that defendant had been his cellmate during the previous night. In a recorded interview, defendant said, “I can honestly say that the only crime committed in that cell last night would be consensual sex between two inmates ….” Defendant explained that he told Steven, as he told all his new cellmates, that he was gay and that he liked “sucking dick” and “love[d] getting fucked.” In defendant’s opinion, Steven did not seem shocked at all. In fact, as defendant was unpacking, Steven said, “You know what? The more I think about it, the more I’m more interested, ” and he showed defendant his erection. Defendant said, “If you want it, you can have it.” Steven said, “All right. Come over here.” Steven wanted to do it by the door so he could see if anyone approached. He stood by the door; he was not lying on his bunk. Defendant performed oral sex on Steven for less than two minutes. They were both wearing only boxer shorts. Defendant believed the act was completely consensual on both sides. Afterward, they just talked “the prison talk.” They did not talk about the incident. Defendant brushed his teeth and they went to bed. The next morning, Steven did not seem angry or upset. He just wanted defendant out of his cell. Defendant thought it might have been Steven’s first sexual experience with a man.
DISCUSSION
I. Cruel and/or Unusual Punishment
Defendant contends a 27-year-to-life sentence for a “non-public act of consensual oral copulation” is cruel and/or unusual under the federal and state constitutions. We disagree.
Defendant’s current offense was a violation of section 288a, subdivision (e), which criminalizes oral copulation in prison regardless of whether it is forcible or consensual: “Any person who participates in an act of oral copulation while confined in any state prison … or in any local detention facility … shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year.” Defendant’s sentence, however, was the result of application of the Three Strikes law, the purpose of which is not to subject a criminal defendant to a life sentence merely on the basis of his latest offense, but to punish his recidivist behavior. (People v. Romero (2002) 99 Cal.App.4th 1418, 1432; People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of a disproportionate sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 397-400, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
A. Federal Constitution
A sentence violates the Eighth Amendment of the United States Constitution if it is “‘“grossly disproportionate” to the crime.’” (Ewing v. California (2003) 538 U.S. 11, 23 (plur. opn. of O’Connor, J.).) However, the protection afforded by the Eighth Amendment is narrow. It applies only in the “‘exceedingly rare’” and “‘extreme’” case. (Id. at p. 21.) Even if the current felony is not serious, the Three Strikes sentence can be “justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and … [the defendant’s] own long, serious criminal record.” (Id. at pp. 29-30, fn. omitted [sentence of 25 years to life for stealing three golf clubs, each worth $399, under California’s Three Strikes law did not violate federal prohibition on cruel and unusual punishment; defendant’s history included misdemeanor and felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of drugs, trespass, and unlawful possession of a firearm].)
Defendant urges us to compare the alleged insignificance of his sexual offense with the magnitude of his sentence. But this argument fails to recognize that his current offense is not viewed in isolation. Defendant’s sentence cannot be viewed as punishment for committing oral copulation; it was punishment for committing a felony and doing so as a recividist offender. In other words, he “was punished not just for his current offense but for his recidivism. Recidivism justifies the imposition of longer sentences for subsequent offenses. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 825.) When we weigh the gravity of defendant’s offense, we must place on the scales not only his current felony, but also his history of felony recidivism. (Ewing v. California, supra, 538 U.S. at p. 29.) “Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions. In imposing a three strikes sentence, the State’s interest is not merely punishing the offense of conviction, or the ‘triggering’ offense: ‘It is in addition the interest … in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’ [Citations.] To give full effect to the State’s choice of this legitimate penological goal, our proportionality review of [defendant’s] sentence must take that goal into account.” (Ibid.) The primary goals of recidivist statutes are to “deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes…. [T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” (Rummel v. Estelle (1980) 445 U.S. 263, 284-285 (Estelle) [life sentence for stealing $120.75 and having prior convictions for fraud involving $80 worth of goods and passing a forged check for $28.36].)
In this case, defendant had been convicted of misdemeanor petty theft in 1986; forcible oral copulation and rape in March 1988; robbery, first degree burglary, and false imprisonment in August 1988; and sodomy in prison in February 2003. He had violated probation once and parole three times.
A probation report described one 1988 crime as follows:
“[T]he defendant entered the victim’s house … when she was asleep on her couch. The defendant sat next to her [and] began to smoke marijuana, then pulled out a gun and threatened her. The victim tried to wrestle the gun away from the defendant, but was overcome by the defendant at which time he handcuffed her and took her into the back bedroom. Once in the back bedroom, and still handcuffed, the defendant made the victim undress from the waist up. At some point during this encounter, the victim was able to get away from the defendant. She ran into her backyard, jumped a couple of fences, and hid. She was later assisted by her neighbors. The defendant[] took the victim’s keys out of her purse, and drove away in her car.”
The same report described the other 1988 crime as follows:
“[T]he defendant entered a medical building with the intent to steal syringes and narcotics in order to reportedly kill himself. While inside, he was confronted by a medical worker, who he subsequently kidnapped and sexually assaulted. The defendant was later chased by other employees and subsequently taken into custody by police.”
Comparing defendant’s current crime and his criminal history with those of the defendants in Ewing and Estelle, we cannot say that defendant’s sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment in violation of the Eighth Amendment. The fact that defendant has previously engaged in sexual crimes, both in and out of prison, suggests he is not able to control this type of conduct, and further supports the need for a strict sentence.
Because we conclude defendant’s sentence is not grossly disproportionate to the gravity of his offenses, we need not engage in intra- or inter-state comparisons. (People v. Meeks (2004) 123 Cal.App.4th 695, 707; People v. Haller (2009) 174 Cal.App.4th 1080, 1092; Harmelin v. Michigan (1991) 501 U.S. 957, 1005 (conc. opn. of Kennedy J.) [such comparisons are necessary only in the rare case in which a threshold comparison of the crimes committed and the sentence lead to an inference of gross disproportionality].)
Defendant, however, argues that his offense is victimless and “akin to the harmless violation of a regulatory law, ” as in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony). In Carmony, the court concluded that the Three Strike sentence of 25 years to life was so grossly disproportionate to the violation of the sex offender registration statute at issue in that case that it “shock[ed] the conscience of the court and offend[ed] notions of human dignity” and thus constituted cruel and/or unusual punishment under both the federal and state constitutions. (Id. at p. 1073.) The “defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law … [but] failed to ‘update’ his registration with the same information within five working days of his birthday as also required by law.” (Id. at p. 1071, fn. omitted.) The defendant’s information had not changed in the interim, “and in fact [his parole agent] arrested [the] defendant at the address where he was registered.” (Ibid.) Nevertheless, the defendant was charged with the registration violation, a felony to which he pled guilty, and three prior strike convictions, which he admitted, and the trial court sentenced him to the mandatory Three Strikes term of 25 years to life in prison. (Id. at pp. 1072-1073.)
The appellate court characterized the crime as the “willful failure to file a duplicate registration as a sex offender.” (Carmony, supra, 127 Cal.App.4th at p. 1086.) It was a crime of omission—“a passive, nonviolent, regulatory offense, which causes no harm and poses no danger to the public.” (Ibid.) The court explained: “It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.” (Id. at p. 1072.)
Here, defendant relies on People v. Santibanez (1979) 91 Cal.App.3d 287 (Santibanez) to support his argument that section 288a, subdivision (e) is the equivalent of a regulatory law. In Santibanez, we explained that “[t]he obvious governmental purpose behind [section 288a, subdivision (e)] is the maintenance of prison discipline and order.” (Santibanez, supra, at p. 291.) But we continued to say that “[same-sex] contacts between prisoners can lead to violent altercations … [and] victims may be reluctant to report sexual assaults occurring in prisons because they fear retribution from other prisoners with whom they must live in close proximity. Therefore, subdivision (e) helps to control violence in penal institutions by prohibiting sexual acts which though forced, might not be reported as such. Furthermore, even consensual acts of oral copulation between prisoners might have a disruptive effect when viewed by the other prisoners who may constitute a captive audience.” (Ibid.) Section 288a, subdivision (e) is no regulatory law; it does not fulfill a clerical mission, keep track of criminals’ movements or activities, or punish technical violations. It is intended to prevent violence and disruption inside prisons and jails, where those confined are exposed to the constant danger of grave harm. Thus, defendant’s conviction in the instant case was not a technical violation of a law that “served no stated or rational purpose.” (Carmony, supra, 127 Cal.App.4th at p. 1073.) And if, as Steven testified, the oral copulation was not consensual, the crime was certainly not victimless. Carmony is inapposite.
B. California Constitution
To determine whether punishment is cruel or unusual under the state constitution, “we must examine the circumstances of the crime, as well as the defendant’s personal characteristics. [Citation.] If, given these factors, ‘the penalty imposed is “grossly disproportionate to the defendant’s individual culpability” [citation], so that the punishment “‘“shocks the conscience and offends fundamental notions of human dignity”’” [citation], [we] must invalidate the sentence as unconstitutional.’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 488.) We may also “compare the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious” and “compar[e] … the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.” (In re Lynch (1972) 8 Cal.3d 410, 426, 426-427.) But if the punishment is proportionate to the defendant’s individual culpability (intra-case proportionality), there is no requirement that it be proportionate to the punishment in other similar cases (inter-case proportionality). (People v. Horning (2004) 34 Cal.4th 871, 913; People v. Webb (1993) 6 Cal.4th 494, 536.) Accordingly, the determination of whether punishment is cruel or unusual may be based solely on the offense and the offender. (People v. Ayon, supra, 46 Cal.App.4th at p. 399; see, e.g., People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
When we examine this case, what stands out is defendant’s recidivist commission of sexual felonies. Defendant has manifested a persistent inability to conform his sexual conduct to the requirements of the law, both in and out of prison. Based on such recidivism, a term of 25 years to life for each current offense “is not constitutionally proscribed.” (People v. Stone (1999) 75 Cal.App.4th 707, 715.)
Having so concluded, we only briefly touch on defendant’s remaining points. First, he maintains that his sentence is disproportionate to sentences imposed for other offenses, including second degree murder, in California. He also looks to other states, pointing out that many do not criminalize consensual oral copulation in prison. But these comparisons are not applicable to Three Strikes sentencing, as we have explained. It is defendant’s recidivism in combination with his current crime that brings him within the Three Strikes law. (People v. Ayon, supra, 46 Cal.App.4th at p. 400.) Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare defendant’s punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons. (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) Furthermore, “[t]he seriousness of the threat a particular offense poses to society is not solely dependent on whether it involves physical injury. Consequently, the commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]” (People v. Cooper, supra, 43 Cal.App.4th at p. 826.)
Nor does defendant’s analysis of recidivist statutes from other states compel a conclusion that his sentence is disproportionate. In People v. Martinez (1999) 71 Cal.App.4th 1502, the court undertook an extensive study of recidivist statutes throughout the United States. (Id. at pp. 1512-1515.) The court concluded that, even if California’s recidivist sentencing scheme is among the most extreme in the nation, it does not necessarily constitute unconstitutional cruel or unusual punishment. (Id. at pp. 1512-1516.) California is not required to “march in lockstep with other states” in formulating its Penal Code. (Id. at p. 1516.) Defendant’s assertion that “in no more than four other states would [he] be subject to an indeterminate term” is, therefore, unavailing.
II. Equal Protection
Defendant argues that the criminalization of only certain sexual acts by inmates violates equal protection. He points out that inmates who engage in oral copulation or sodomy are committing crimes (§§ 288a, subd. (e), 286, subd. (e)), while inmates who engage in all other sexual conduct are not. We find no equal protection violation.
A. “Similarly Situated” Requirement
Both the federal and state Constitutions provide that no person may be denied equal protection of the law. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7, subd. (a).) “‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) “Under the equal protection clause, we do not inquire ‘whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.”’ [Citation.]” (Id. at pp. 1199-1200.) “‘“‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’”’ [Citation.] … The use of the term ‘similarly situated’ in this context refers only to the fact that ‘“[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” …’ [Citation.] There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
Defendant maintains that inmates who engage in oral copulation or sodomy are similarly situated with inmates who engage in other sexual conduct. In 1975, sections 286 and 288a were amended to decriminalize sodomy and oral copulation between consenting adults, and provisions were added to criminalize sodomy and oral copulation, even if consensual, when committed by someone confined to jail or prison. (Stats. 1975, ch. 71, §§ 7, 10, pp. 133-134.) As we explained in Santibanez, supra, 91 Cal.App.3d 287, the purpose of section 288a, subdivision (e) is “the maintenance of prison discipline and order” and the prevention of disruption and violence. (Santibanez, supra, at p. 291.) We also believe the law helps protect inmates who are victims of coercive sexual conduct. These purposes apply equally to section 286, subdivision (e). To further our analysis, we assume that inmates who engage in oral copulation or sodomy and inmates who engage in other sexual conduct are similarly situated for purposes of the challenged law.
B. Judicial Scrutiny
“Statutes challenged under the equal protection clause will receive differing levels of scrutiny depending upon the nature of the distinctions they establish. Legislation which creates a suspect classification or impinges on the exercise of a fundamental right is subject to strict scrutiny and will be upheld only if it is necessary to further a compelling state interest. All other legislation will satisfy constitutional requirements if it bears a rational relationship to a legitimate state purpose. [Citations.]” (People v. Silva (1994) 27 Cal.App.4th 1160, 1167 (Silva).)
Defendant relies on People v. Olivas (1976) 17 Cal.3d 236 (Olivas) for the proposition that criminal statutes are subject to strict scrutiny. However, in Silva, we disagreed with such a broad reading of Olivas, as follows: “In [Olivas], our Supreme Court applied strict scrutiny to strike down on equal protection grounds a provision of the Penal Code which permitted a juvenile offender tried as an adult to be committed to the California Youth Authority for a longer term than an adult convicted of the same offense could be sentenced to prison. The court held ‘personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.’ [Citation.] However, despite [the defendant’s] argument to the contrary, we do not believe the court thereby established the general proposition that all criminal laws, because they may result in a defendant’s incarceration, are perforce subject to strict judicial scrutiny. [¶] In People v. Hernandez (1979) 100 Cal.App.3d 637, the defendant contended it violated equal protection to give greater weight to an in-state prior than to an out-of-state prior for the purposes of a section 667.5 sentence enhancement. This court found the claim involved neither a suspect classification nor a fundamental interest and therefore applied the rational basis test…. [¶] We reaffirmed this position in People v. Flores (1986) 178 Cal.App.3d 74. There a defendant convicted of attempted second degree murder asserted he had been denied equal protection because he had received the same sentence as someone convicted of attempted first degree murder. We held there was a rational basis to punish all attempted murders alike. ‘The decision of how long a particular term of punishment should be is left properly to the Legislature. The Legislature is responsible for determining which class of crimes deserves certain punishments and which crimes should be distinguished from others. As long as the Legislature acts rationally, such determinations should not be disturbed. [¶] … [The defendant] does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives. We apply the rational basis test.’ [Citations.]” (Silva, supra, 27 Cal.App.4th at pp. 1167-1168.) In Silva, where the challenged statute punished those who assault a spouse or cohabitant of the opposite sex, but not those who assault a spouse or cohabitant of the same sex, we again applied the rational basis test to the “alleged sentencing disparity.” (Id. at p. 1168.)
Especially instructive to our case is People v. Mitchell (1994) 30 Cal.App.4th 783 (Mitchell), in which the Fourth District Court of Appeal considered whether equal protection was violated by a statute that created two groups of individuals: those who possess $100,000 knowing it was obtained by a sale of a controlled substance, and those who possess less than $100,000 under the same circumstances. The statute, like those in the present case, subjected one group to criminal conviction and imprisonment, and subjected the other group to no criminal liability whatsoever. The defendant urged strict scrutiny, but the court read Olivas narrowly: “‘[T]he Olivas court did not want to increase substantially the degree of judicial supervision of the Legislature’s criminal justice policies. Such a highly intrusive judicial reexamination of legislative classifications is not merited by a close reading of Olivas. There is language in the Olivas opinion that emphasizes the narrowness of the holding. For instance, the court noted that [Welfare and Institutions Code] section 1731.5 was constitutionally infirm because persons committed under the statute had been “prosecuted as adults, adjudged by the same standards which apply to any competent adult, and convicted as adults in adult courts.” [Citation.] This language requires only that the boundaries between the adult and juvenile criminal justice systems be rigorously maintained. We do not read Olivas as requiring the courts to subject all criminal classifications to strict scrutiny requiring the showing of a compelling state interest therefor.’ [Citation.]” (Mitchell, supra, at pp. 794-795.) The Mitchell court concluded that the defendant’s case was distinguishable from Olivas because it did not involve the punishment of two groups of similarly situated defendants after conviction for the same crime. (Mitchell, supra, at p. 795.) The court agreed with the “distinction between punishment based on status, as in Olivas, and punishment that takes into account differing degrees of harm or evil caused by violating a penal statute. ‘“It is the prerogative, indeed the duty, of the Legislature to recognize degrees of culpability when drafting a Penal Code. [Citation.]”’ [Citations.] Determining gradations of culpability includes setting the dividing line between legal and illegal conduct. It does not implicate the strict scrutiny test for equal protection purposes.” (Id. at pp. 795-796, italics added, fn. omitted.)
In 2004, the Supreme Court in People v. Wilkinson (2004) 33 Cal.4th 821 (Wilkinson)confirmed this narrow interpretation of Olivas: “The language in Olivas could be interpreted to require application of the strict scrutiny standard whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to ‘personal liberty’ of the affected individuals. Nevertheless, Olivas properly has not been read so broadly.” (Wilkinson, supra, at p. 837.) Wilkinson agreed that Olivas should not be taken to mean that courts are required to subject all criminal classifications to strict scrutiny requiring the showing of a compelling state interest. (Wilkinson, supra, at p. 838.) The court noted that many courts, including ours, had concluded that “a broad reading of Olivas, as advocated by defendant here, would ‘intrude[ ] too heavily on the police power and the Legislature’s prerogative to set criminal justice policy.’ [Citations.]” (Ibid.)
In light of these authorities, we apply the rational basis test to the distinctions the Legislature had made between inmates who engage in oral copulation or sodomy and inmates who engage in other sexual conduct. In Silva, we explained the rational basis test as follows: “‘[T]he constitutional guarantee of equal protection of the laws … compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.… [T]he Legislature is vested with wide discretion in making the classification and … its decision as to what is a sufficient distinction to warrant the classification will not be overthrown by the courts unless it is palpably arbitrary and beyond rational doubt erroneous…. Only invidious discrimination offends the equal protection clause; … the Legislature need not treat similar evils identically or legislate as to all phases of a field at once …; legislative classification is permissible when it is based upon some distinction reasonably justifying differentiation in treatment …; a classification is not void because it does not embrace within it every other class which might be included …. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it….’ [Citation.]” (Silva, supra, 27 Cal.App.4th at pp. 1168-1169.)
In this case, the distinction drawn by the Legislature between inmates who engage in oral copulation or sodomy and inmates who engage in other sexual conduct is abundantly rational. It is reasonably conceivable (if not commonly known) that, although other types of sexual contact occur in the prison setting, the most typical contacts—whether consensual, coercive, or forced—are oral copulation and sodomy. (See, e.g., Man & Cronan, Forecasting Sexual Abuse in Prison: The Prison Subculture of Masculinity as a Backdrop for “Deliberate Indifference” (2002) 92 J. Crim. L. & Criminology 127; Siegal, Rape in Prison and AIDS: A Challenge for the Eighth Amendment Framework of Wilson v. Seiter (1992) 44 Stan. L.Rev. 1541.) These two sexual acts play an undeniable role in the power structure of prison culture and the suffering of innumerable victims. The Legislature’s decision to treat inmates who engage in oral copulation or sodomy differently from inmates who engage in other sexual conduct is justified by a rational basis.
III. Due Process
Defendant acknowledges our conclusion in Santibanez that section 288a, subdivision (e) does not violate prisoners’ due process rights (Santibanez, supra, 91 Cal.App.3dat pp. 289-290), but he proposes that the more recent case of Lawrence v. Texas (2003) 539 U.S. 558 (Lawrence) requires us to reconsider.
In Lawrence, the United States Supreme Court struck down a state law prohibiting same-sex sodomy as a violation of privacy and personal autonomy interests under the due process clause. The law, as applied to consenting adults, constituted an intrusion into the most intimate form of behavior—sexual conduct—in the most private of places—the home. Even if the personal relationships were “not entitled to formal recognition in the law, ” the government could not prohibit the conduct itself. (Lawrence, supra, 539 U.S. at p. 567.)
Lawrence, however, was limited to its factual situation: fully consensual same-sex partners who privately engaged in sexual contact. The court stated: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ [Citation.] The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” (Lawrence, supra, 539 U.S. at p. 578.)
We see nothing in Lawrence to suggest that prisoners have the right to sexual privacy. Accordingly, we reiterate our explanation in Santibanez: “[The defendant] argues that the constitutional right to privacy in the area of family and sexual matters [citations] should be extended to those persons confined in state prison or county jail so as to legitimize consensual sexual conduct between adult prisoners. However, it is clear that prisoners have no cognizable right to sexual privacy in a jail cell. In People v. Frazier (1967) 256 Cal.App.2d 630, which involved a prosecution for acts of sodomy committed in a prison, it was held that the right of privacy … has no application in a prison setting. [Citation.] This holding is consistent with the general rule that prisoners have a much lesser expectation of privacy than do other citizens. [Citations.] ‘A (person) detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack of privacy is a necessary adjunct to his imprisonment.’ [Citation.]” (Santibanez, supra, 91 Cal.App.3d at pp. 289-290.)
IV. Ineffective Assistance of Counsel
Because we have found no merit to defendant’s constitutional claims, we conclude defense counsel was not ineffective for failing to raise these claims before the trial court. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Hester (2000) 22 Cal.4th 290, 296-297 [we can review claim solely on issue of prejudice].)
V. Scope of Discretion to Dismiss Prior Strike Convictions
Defendant argues that the record demonstrates the trial court did not understand the scope of its discretion to dismiss prior strike convictions in the interest of justice, pursuant to section 1385. We disagree.
A. Facts
At sentencing, the following occurred:
“[DEFENSE COUNSEL]: Just briefly, Judge. Well, Judge, I believe I did actually lay out, you know, a very persuasive mitigating factor in my brief. I am not sure there is anything more to add as to what I said. But I would point out though the alleged act[s] in question occurred what 25 years ago all of them. [¶] Okay. Now, not only are they so remote in time the conduct in question in this case. I understand he was convicted. The offense [for which] he was convicted was for having consensual sex with an inmate. That was the charge. That was the offense he was convicted for. I can’t believe, for the life of me, how this case warrants a life sentence.
“[Defendant] is already doing life as a [practical] matter[;] he is doing life as it is. He is not going anywhere. As soon as he is done with this case, regardless of what you think is appropriate, they should move him to Coalinga State Hospital where he actually belongs and where he’s going to actually stay for the rest of his life. I don’t see any aggravating factor. I don’t see any facts in this particular [case] that would shock your consci[ence] that would warrant you to say I’m going to ship him off for life for this. I just don’t see it.
“THE COURT: All right. And I—if we were sentencing without the requirements of the three strike law, I might very well agree with you. I might.
“[DEFENSE COUNSEL]: Judge, my interjection.
“THE COURT: But my concern—and, yeah, I’m going to allow you because my concern is the law is pretty clear there has to be. It is not just a weighing; it is not a sentencing criteri[on]. It is in order to set the … prior strikes aside. I think there is a fairly high standard that the Court has to impose on itself.
“[DEFENSE COUNSEL]: I understand, Judge. Judge, because of this[, ] the test is does this guy fall within the statutes. The [crime] clearly falls outside the statutes…. What was he convicted for[? H]aving consensual sex with a fellow inmate.
“THE COURT: While incarcerated.
“[DEFENSE COUNSEL]: Right[, ] consensual sex with a fellow inmate. That is the offense he was convicted for. Let’s not try to make it seem like this guy did forcibly engage in sex. No. The sex was having sex with a consensual—with a prisoner and then the alleged prior strikes occurred all of them more than 25 years ago. They are so remote in time that I could not have envisioned the legislature when this law was promulgated that this crime was committed 25 years, could have been sent to life in prison for consensual sex.
“I understand he has convictions and partnered with the fact this guy is committed. Even though it is civil commit[ment], he is going to get proper treatment that he deserves[, ] that he needs. Now shipping him off to prison for life, what does that solve? I mean, they’ll be spending money for what[? H]e won’t get treatment he won’t get nothing medically. He’s already commit[ted] civilly where I think he belongs.
“THE COURT: Thank you. People have anything?
“[THE PROSECUTOR]: Yes, just briefly. I understand the Court has already read our opposition. As we indicate in our opposition, the Court is required to sentence the defendant [to] 25 to life unless there is an exception for the sentencing scheme. And the Court is required to consider the circumstances of the present offense, not just what [defendant] is charged with, but the circumstances of the present offense and prior offenses as well as his prospect in the future for rehabilitation.
“I think it is clear from our response that he’s been a sexual predator for 25 years. He’s been in and out of prison for the last 20 years. When he was out of prison he committed violent offenses. He committed sexual offenses. Three of the strikes are sex offenses—two of the strikes. Although they’re not sex offenses, they involve a sort of sexuality. [¶] The case I’m talking about is the one where he has the victim stripped naked from the [waist] up, and when he was incarcerated in prison he violated the rules. As I indicate, he violated the rules 43 times for which he received a loss of custody credits. And finally when he was paroled, he violated parole each and every time within a short period of being paroled.
“Talking about his prospects, as I indicated, he has a long criminal history. He has a history of disobeying rules inside and outside of prison and the rules of prison and the rules of society. He has had numerous chances to rehabilitate himself and he has not. He’s even faced a three strikes case before where he saw the possibility of 25 to life and that did not deter his actions. For whatever reason he had strikes that were stricken and now he expects the Court to do it again to give him leniency when the Court has already given him leniency and that has shown that that has done nothing to deter his behavior. [¶] Many years ago probation in their report, as I indicated in my response, indicated that this defendant is likely to reoffend and [it] is likely to be another sex offense and that [ha]s proven to be true at least twice.” (Italics added.)
The court heard further argument from both sides about defendant’s crimes and his prospects for rehabilitation in a hospital or prison, then denied the motion to dismiss the prior strike convictions.
B. Law
Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) “‘… A court’s discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with … section 1385[, subdivision ](a) ….’” (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law “was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero, supra, at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 [“a primary purpose of the Three Strikes law was to restrict judicial discretion”]). The Three Strikes law establishes “‘a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike’” unless the sentencing court finds a reason for making an exception to this rule. (People v. Carmony (2004) 33 Cal.4th 367, 377.) There are “stringent standards that sentencing courts must follow in order to find such an exception.” (Ibid.) In order to dismiss a prior strike conviction, “the court in question must consider whether, in light of the nature and circumstances of [the defendant’s] 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, supra, at p. 161.)
We will not conclude the trial court misunderstood the scope of its sentencing discretion “in the absence of some affirmative showing that it misunderstood its discretion.” (People v. Alvarez (1996) 49 Cal.App.4th 679, 695.) “‘The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]’” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) “‘We must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error—it will not be presumed. [Citation.]’” (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) Thus, there is a “normal presumption of regularity concerning the exercise of sentencing discretion.” (People v. Mosley (1997) 53 Cal.App.4th 489, 497.)
The trial court’s decision not to dismiss a prior strike conviction is reviewed under the deferential abuse of discretion standard. (People v. Carmony, supra, 33 Cal.4th at p. 374.) An abuse of discretion is established by demonstrating that the trial court’s decision is “irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the court’s decision will not be disturbed on appeal. (Ibid.)
C. Analysis
Defendant asserts that the trial court’s statements, italicized in the excerpt above, affirmatively demonstrate that the court misunderstood the scope of its discretion to dismiss prior strike convictions. The court stated that it might agree that the facts in this particular case did not warrant a life sentence, if the court were sentencing without the requirements of the Three Strikes law. The court also stated: “It is not just a weighing; it is not a sentencing criteri[on]. It is in order to set the … prior strikes aside. I think there is a fairly high standard that the Court has to impose on itself.”
These statements, in our opinion, do not demonstrate a lack of understanding on the court’s part. The court admitted it might agree that the facts of the case did not warrant a life sentence, but it understood its discretion was limited by the Three Strikes law, which does, as we have explained, impose “stringent standards”—or, as the court put it, a high standard—for finding an exception and dismissing a strike prior. (People v. Carmony, supra, 33 Cal.4th at p. 377.) The record does demonstrate that the court reviewed defendant’s motion to dismiss the priors and the prosecution’s opposition to the motion, then heard extensive argument on the matter. We find nothing in the record that affirmatively demonstrates the trial court misunderstood the scope of its discretion, and thus we cannot presume it did so. (People v. Alvarez, supra, 49 Cal.App.4th at p. 695.)
Although defendant does not contend the trial court abused its discretion in refusing to dismiss the prior convictions, we note that we see no abuse.
VI. Separate Prison Terms
Defendant contends the evidence was insufficient to support the trial court’s true finding that he served two separate prior prison terms on his March 1988 and August 1988 convictions. He asserts that he would not have completed his 16-year sentence on the first term before his second conviction, and there was no evidence he was released before August 1988. The People concede and we accept the concession. One of the one-year enhancements must be vacated.
DISPOSITION
The matter is remanded to the trial court with directions to vacate one of the one-year prior prison term enhancements (§ 667.5, subd. (b)). The trial court is further directed to amend the abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
WE CONCUR: LEVY, ACTING P.J., POOCHIGIAN, J.