Opinion
NOT TO BE PUBLISHED
Superior Court County No. 1183843 of Santa Barbara, James F. Iwasko, Judge.
Susan B. Gans-Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Edgardo Guevara appeals a judgment following his conviction of corporal injury to a fellow parent (Pen. Code, § 273.5, subd. (a)), a felony, and child endangerment (§ 273a, subd. (b)), a misdemeanor. The trial court found that he fell within the purview of the Three Strikes law and sentenced him to an aggregate prison term of 28 years to life. We conclude, among other things, that 1) the trial court did not abuse its sentencing discretion by not striking one of Guevara's two prior strike convictions, and 2) his third strike life sentence does not constitute cruel or unusual punishment. We affirm.
All statutory references are to the Penal Code.
FACTS
In May 2006, Maria D. lived with her boyfriend Guevara and their infant daughter. She had an argument with Guevara over a phone number she found on his cell phone. She took the baby and left the apartment.
Maria D. walked a block away from the home. Guevara followed her. He caught up with her and asked, "Where are you going?" Maria D. responded that she was leaving him.
Guevara told her to go back to the apartment or he would "crack" her. She did not comply. She was holding the baby in her arms.
Guevara struck her on the nose with his fist. Maria D. "blacked out." As she fell to the ground, the baby "fell on top of her." Guevara took the child and ran away.
A neighbor came over to assist Maria D. Maria D.'s "face was full of blood."
Brian Jensen, M.D., an emergency medical physician at Marian Medical Center, testified that Maria D. had a nasal fracture and a nasal laceration. In "lieu of stitches or staples, " he used "Dermabond, " a glue-like substance, to treat the laceration and "bring the wound edges together."
The Prior Strike Convictions
After the jury's guilty verdicts, the trial court set a date for a court trial on Guevara's prior strike convictions.
At the court trial, Guevara admitted that he had a prior conviction for robbery (§ 211) in 1992 and that it was a "serious and violent felony under the three-strikes law." He admitted that he had been convicted of violating section 12020 (possession of a sawed-off shotgun) in 1999 with a special allegation that he possessed the weapon for the benefit of a street gang. (§ 186.22, subd. (b).) He also admitted that this 1999 conviction with the special gang allegation "is considered a strike under California law."
On June 22, 2009, Guevara filed a sentencing memorandum requesting the trial court "to dismiss one or more 'strike' allegations" that he had previously admitted. The court denied the request.
DISCUSSION
I. Not Striking a Prior Strike
Guevara argues that "the trial court should have dismissed one of [his] prior strikes because he falls outside the spirit of the Three Strikes law." (Emphasis omitted.) He claims the court erred by imposing a third strike life sentence. We disagree.
In reviewing the trial court's decision, we use an abuse of discretion standard. (People v. Gaston (1999) 74 Cal.App.4th 310, 314.) We consider, among other things, the defendant's current offense, his criminal record and public safety. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981-982.) The trial court has discretion to strike priors in three strikes cases. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) But "extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit" of the Three Strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 338.) "[L]onger sentences for career criminals who commit at least one serious or violent felony certainly goes to the heart of the statute's purpose-or spirit." (Ibid.)
The trial court denied Guevara's request to dismiss one or more of his prior strikes. It found that "in light of all the circumstances, his prior offenses, the particulars of his background and his prospects for the future, that he... should not be deemed outside the spirit and scope of the three-strikes law." It noted that the present offense "was a serious one." The court said, "[The victim] was unconscious. She could have been killed. [Guevara] left her there, took the child. The child could have been killed." In reviewing his criminal record, it said Guevara has "not demonstrated a course of responsible conduct at any real period of his life, other than a couple of years."
Guevara has not shown that the trial court abused its discretion. Its finding that he falls within the spirit of the Three Strikes law is supported by the record. Guevara is a recidivist who has an extensive criminal history.
His prior convictions and probation and parole violations are as follows:
1992-conviction for robbery (§ 211); sentenced to two years in state prison.
March 1995 conviction for using or being under the influence of a controlled substance.
March 1995 conviction for failure to appear in court.
April 1995 conviction for felony grand theft.
August 1995 conviction for the fraudulent use of a telephone, a felony; sentenced to 16 months in state prison.
November 1997 probation violation; sentenced to 42 days in jail.
March 1998 probation violation; ordered to finish state prison term. September 1998 parole violation; ordered to finish prison term.
September 1998 conviction for using or being under the influence of a controlled substance; sentenced to 48 months summary probation and 120 days in jail.
September 1999 conviction for possession of a sawed-off shotgun; admitted a gang allegation that he possessed the weapon for the benefit of a criminal street gang; sentenced to 44 months in state prison.
April 2009-conviction for corporal injury to a fellow parent, a felony, and child endangerment, a misdemeanor.
In 2006, Guevara was arrested for the current crimes.
From this history, the trial court could reasonably infer that a substantial portion of Guevara's adult life involved committing crimes, serving multiple prison and jail sentences, and violating probation and parole conditions. He has been convicted of five felonies. Guevara notes that for his third strike offense the jury did not find that he inflicted great bodily injury to Maria D. True, but this offense was a crime involving violence and Maria D. suffered a nasal fracture and a nasal laceration.
Guevara claims the trial court should have dismissed the 1999 conviction for possession of a sawed-off shotgun and his admission of the gang allegation that he possessed that weapon for the benefit of a street gang. The court stated, "I don't think I can go behind this gang allegation and say, well, he really wasn't working for the gang." Guevara has not shown that the court's express and implied findings on this issue were erroneous.
Guevara argues that he made that plea in 1999 "without proper advisements and waivers as to the gang enhancement." But in a prior appeal by the People to this court (People v. Guevara (June 30, 2008, B204535) [nonpub. opn.]), we concluded that Guevara's "admission of the gang allegation was voluntary and intelligent." We rejected his claim that the 1999 conviction was constitutionally invalid, and we reversed the lower court's decision which had granted Guevara's motion to strike the 1999 strike conviction. Guevara's attempt to relitigate this issue is not meritorious.
Since 1992, Guevara has been a "revolving-door career criminal, " the type of defendant who falls directly within the purview of the Three Strikes law. (People v. Gaston, supra, 74 Cal.App.4th at pp. 312, 320.) He has not shown that the trial court abused its discretion. (Id. at p. 314.)
II. Cruel and Unusual Punishment
Guevara contends that his sentence constitutes "cruel and/or unusual punishment." We disagree.
A sentence that is so grossly disproportionate that it "shocks the conscience and offends fundamental notions of human dignity" violates the California Constitution's prohibition against cruel and unusual punishment. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.)
"When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." (Ewing v. California (2003) 538 U.S. 11, 25.) Under the Eighth Amendment, it is only in that "'rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.'" (Id. at p. 30.)
Guevara claims the Ninth Circuit's decision in Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755 demonstrates that his sentence is constitutionally disproportionate. Decisions of the lower federal courts may be persuasive, but we are not bound by them. (People v. Zapien (1993) 4 Cal.4th 929, 989.) Even so, Ramirez is distinguishable. There the Ninth Circuit held that a 25-year-to-life sentence under the Three Strikes law violated the Eighth Amendment because the "core conduct" of the third strike involved the defendant's act of shoplifting a $199 VCR. (Ramirez, at p. 768.) It concluded that the sentence was constitutionally disproportionate because the triggering offense was a minor and passive economic crime and distinguishable from crimes against a person.
But here, by contrast, Guevara's third strike felony conviction involved a crime of violence against a person. As the trial court noted, he knocked Maria D. unconscious. Her face was full of blood. His attack on Maria D. also showed his lack of concern for the safety of the baby she was holding. As the court noted, had the infant not fallen on top of Maria D., she "could have been killed."
In Ramirez, the Ninth Circuit noted that the defendant had never served a state prison term before committing the third strike. (Ramirez v. Castro, supra, 365 F.3d at pp. 768-769, 774-775.) By contrast, Guevara served three prior prison terms and was returned twice to custody for parole violations. Guevara's long criminal history shows that he is "'simply incapable of conforming to the norms of society as established by its criminal law.'" (Ewing v. California, supra, 538 U.S. at p. 29.) As noted in the probation report, by the age of 25, Guevara already had been convicted of four felonies. His "sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Id. at pp. 29-30.)
We have reviewed Guevara's remaining contentions and conclude he has not shown error.
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.