Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-506332.
SIMONS, J.
Defendant Orlando Dewin Johnson (appellant) appeals the 25-years-to-life sentence imposed after the jury convicted him of receiving stolen property (Pen. Code, § 496d, subd. (a)), he pled no contest to misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)), and the trial court found true 10 prior strike allegations and three prior prison term allegations. Appellant’s sole contention on appeal is that his sentence constituted cruel and unusual punishment. We disagree and affirm.
The court stayed the sentence on the three prior prison terms.
BACKGROUND
Since this appeal raises only a sentencing issue, we provide a brief recitation of the facts. In the early morning of February 21, 2007, a Petaluma police officer stopped a van driven by appellant for a Vehicle Code violation. The officer then noticed the van’s ignition and steering column were damaged and there was no place to insert the key into the ignition. The officer also noticed that the driver’s side door handle had been torn off, there were pry marks on the door, and the door’s locking mechanism was missing. The van had been stolen from a Vallejo church and appellant did not have permission to drive it.
DISCUSSION
Appellant contends the 25-years-to-life sentence imposed in this case constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution.
The prohibition against cruel and unusual punishment under the federal Constitution is applicable in noncapital cases only in exceedingly rare or extreme cases involving sentences that are grossly disproportionate to the offense, described as a “ ‘narrow proportionality principle.’ ” (Ewing v. California (2003) 538 U.S. 11, 20-21 (Ewing.) The issue is whether the sentence is “ ‘grossly disproportionate’ ” to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin).) The United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists against claims of cruel and unusual punishment. (See Lockyer v. Andrade (2003) 538 U.S. 63 (Andrade) [two 25-years-to-life terms for two separate thefts of videotape worth approximately $150]; Ewing, at pp. 18, 30 [25-years-to-life term for theft of three golf clubs each worth $399]; Harmelin, at pp. 960, 965, 994-995 [life without possibility of parole for possession of a large quantity of cocaine].)
The record before us reveals that nine of appellant’s 10 prior strike convictions were armed robberies committed in 1984 when he was 17 years old. The 10th strike prior was a second degree robbery committed in 1988. In 1994, he was convicted of forgery (Pen. Code, § 470), and in 1999 he was convicted of sale or transportation of a destructive device (Pen. Code, § 12303.6). In addition, he suffered 10 parole violations between 1998 and 2005. He admitted current use of cocaine, and methamphetamine, occasional use of marijuana and prior recreational use of Valium, Codeine and Vicodin. In recommending the 25-years-to-life sentence, the probation department’s presentence report states, “Although given many opportunities to remain in the community on grants of state parole, [appellant] re-offended or committed parole violations time and time again, resulting in his having spent the bulk of his adult life in incarceration. Although notable that the most violent and serious offenses occurred when he was much younger, his repeated failures at rehabilitation appear to indicate an unwillingness or inability to maintain a lifestyle beyond criminal means.”
In support of his cruel and unusual punishment claim, appellant makes several arguments. First, the triggering offense, receiving stolen property, was neither a violent nor serious felony and was not committed with violence or the threat of violence. Second, nine of his 10 strike priors were committed almost 25 years before the current offense, while he was a minor, and the 10th strike prior was committed 19 years prior to his current offense. And, he argues the forgery was a nonviolent offense and he had only a “relatively minor role” in the Penal Code section 12303.6 offense. He also notes that the sentencing court stated, “I am not worried about him committing a crime.... He just doesn’t seem to be at that stage any longer where he is going to commit a violent crime.” Finally, he argues the sentence imposed on him is far greater than the sentence that could be imposed for “voluntary manslaughter, rape, mayhem, robbery, kidnapping and sexual assault on a minor, ” and California’s “Three Strikes” law is the most stringent in the country. Appellant’s arguments are unavailing.
The purpose of the Three Strikes law is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Although nine of appellant’s 10 strike priors were committed while he was a juvenile, and the 10th was committed 19 years before the instant offense, appellant did not stay crime free in the interim. He was convicted of felonies in 1994 and 1999 and violated parole 10 times between 1998 and 2005. Moreover, “society’s interest in deterring criminal conduct or punishing criminals is not always determined by the presence or absence of violence. [Citations.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 826.) Clearly, he is being punished for his recidivism.
Appellant appears to compare his situation with that addressed in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony). In that case, the court concluded that a Three Strikes sentence of 25 years to life imposed for the defendant’s failure to register as a sex offender violated the federal and state constitutional prohibitions against cruel and/or unusual punishment. (Id. at pp. 1078-1079.) The court found that the defendant had originally registered, and that his failure to reregister was a “harmless technical violation of a regulatory law.” (Id. at p. 1072.) Carmony expressly declined to consider “the appropriateness of a recidivist penalty where the predicate offense does not involve a duplicate registration.” (Id. at p. 1073, fn. 3.)
Appellant also compares his situation with that in Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755 (Ramirez), Reyes v. Brown (9th Cir. 2005) 399 F.3d 964 (Reyes), Banyard v. Duncan (C.D.Cal. 2004) 342 F.Supp.2d 865 (Banyard), and Duran v. Castro (E.D.Cal. 2002) 227 F.Supp.2d 1121 (Duran). The Ramirez defendant’striggering crime was petty theft, and he had two prior robbery convictions that the court found amounted to petty theft. (Ramirez, at pp. 757-758, 768.) In Reyes, the triggering crime was falsifying a driver’s license application. (Reyes, at pp. 965-966.) Most of the defendant’s criminal history was minor and nonviolent, but he did have a prior armed robbery conviction. (Id. at pp. 967-968.) The Ninth Circuit did not conclude his 26-years-to-life sentence was cruel and unusual punishment. Instead, because the record did not establish whether the prior robbery was a “ ‘crime against a person’ ” or involved violence, it remanded the matter. (Id. at pp. 969-970.) In Banyard, the triggering crime was possession of a single-use quantity of cocaine and the defendant had two prior serious felonies, one of which the court found amounted to petty theft. (Banyard, at pp. 867, 875-876.) The district court concluded that the defendant’s criminal history was far less serious than in Andrade and Ewing, and the 25 years-to-life sentence was cruel and unusual punishment. (Banyard, at p. 881.) In Duran, the triggering offense was simple possession of heroin and the defendant had two prior kidnapping convictions stemming from the same incident. (Duran, at p. 1124.) The district court concluded that the defendant’s 25-years-to-life sentence was grossly disproportionate. (Duran, at pp. 1131-1132, 1136.)
Aside from the fact that we are not bound by these federal cases (see People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), they and Carmony are factually distinguishable. Appellant’s criminal history was lengthy, included numerous serious and violent offenses, and his triggering offense was not a mere technical regulatory violation. He also admits substance abuse problems which do not bode well for his ability steer clear of future criminality. Therefore, we cannot conclude that his sentence is grossly disproportionate for purposes of analysis under the Eighth Amendment. Thus, we need not discuss appellant’s arguments about intrastate and interstate comparisons regarding his Eighth Amendment claim. (See People v. Meeks (2004) 123 Cal.App.4th 695, 707, citing Harmelin, supra, 501 U.S. at p. 1005; accord, People v. Haller (2009) 174 Cal.App.4th 1080, 1091-1092.)
DISPOSITION
The judgment is affirmed.
We concur., JONES, P.J., BRUINIERS, J.