Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Super. Ct. No. 1099818, Hurl W. Johnson III, Judge.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
During a minor traffic stop, an officer noticed that defendant Arthur Ray Jones had a hypodermic syringe on his lap and that he appeared to be under the influence of drugs or alcohol. After a field sobriety test was administered, defendant was arrested. Before he was booked into jail, a small plastic bag containing a brown sticky substance was found in his sock. When asked what it was, defendant said it “looks like heroin.” He also admitted to another officer that he had used heroin that day. He was charged with felony possession of heroin and misdemeanor driving under the influence. The information also alleged three prior “strike” serious felony convictions (Pen. Code, § 667, subd. (d)), and five prior prison terms (§ 667.5, subd. (b)). When the case was called, defense counsel announced that defendant wished to have a court trial and would waive his right to a jury. However, in obtaining a jury trial waiver from defendant, the judge inadvertently asked if he was willing to waive a court trial, to which defendant responded “yes.” The mistake was immediately pointed out by defense counsel, the judge corrected his misstatement, and the case proceeded to trial by the court. Defendant was convicted on the drug possession count, and due to his prior serious felony convictions, he was sentenced to 25 years to life. On appeal, defendant contends as follows: (1) there was never an express waiver of jury trial, (2) there was insufficient chain of custody evidence regarding the heroin, (3) the trial court abused its discretion in failing to grant defendant’s motion to strike prior convictions, and (4) the sentence was in violation of constitutional safeguards against cruel and unusual punishment. We reject each of these contentions and will affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
BACKGROUND FACTS
On October 24, 2005, California Highway Patrol (CHP) Officer Vincent Villegas pulled over a minivan after he observed that the driver, later identified as defendant, was not wearing a seatbelt and the vehicle appeared to be weaving. When Officer Villegas approached the vehicle, he noticed a hypodermic syringe lying on defendant’s right leg. Also, defendant’s speech was slurred and there were other indications of intoxication. Several field sobriety tests were performed and when Officer Villegas concluded that defendant was intoxicated, he placed him under arrest.
After defendant was transported to the CHP office, Officer Chris Reeves, a certified drug evaluation expert, met with defendant. Officer Reeves noted such symptoms as slurred speech, drowsiness, confusion, constricted pupils, watery eyes and the presence of both old and “fresh” needle track marks. After conducting a number of tests, Officer Reeves came to the conclusion that defendant was under the influence of a narcotic such as heroin. Officer Reeves testified that defendant, after waiving his Miranda rights, admitted to taking heroin, Vicodin and Valium earlier that same day. Defendant also told Officer Reeves that he had been using heroin off and on for some 35 years.
Miranda v. Arizona (1966) 384 U.S. 436.
Officer Villegas then transported defendant to the Stanislaus County Jail. Defendant was searched, including removal of his shoes and socks, prior to entering the jail. When defendant removed one of his socks, a small plastic package “flicked” out and landed on the ground. Officer Villegas described it as a “small plastic wrapped bundle of a brown sticky substance.” “What’s this?” the officer asked, and defendant responded, “looks like heroin.”
Department of Justice criminalist Nancy Seger testified that she tested a substance given to her by Officer Villegas regarding a subject by the name of Arthur R. Jones, further identified by driver’s license number, for an offense date of October 24, 2005. Her tests confirmed that the substance, which weighed 0.11 grams, contained usable amounts of heroin.
The defense presented no evidence.
After hearing all the testimony and other evidence, the trial court found defendant guilty on count 1 for felony possession of heroin (Health & Saf. Code, § 11350), and not guilty on count 2 for misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)). The court also found all the prior conviction allegations true. Thereafter, at the sentencing hearing, the court denied defendant’s motion to strike the prior felony convictions. Probation was denied and defendant was sentenced to a term of 25 years to life. Defendant’s timely appeal followed.
DISCUSSION
I. Defendant Expressly Waived Jury Trial
At the outset of the proceedings, defendant’s attorney announced that defendant was willing to waive a jury trial and proceed with a court trial. The prosecutor likewise agreed to a court trial. The trial court then engaged in the following colloquy with defendant:
“THE COURT: Now, Mr. Jones, you understand you have a right to a jury trial on this alleged felony possession of controlled substance, Count I, which alleges you possessed heroin on or about the 24th day of October, 2005, and you’re also charged with misdemeanor driving under the influence of a drug or depressant as well for the 24th day of October, 2005. You have a right to have a jury trial. That means all 12 people in a jury by unanimous verdict have to determine whether or not you’re guilty or not guilty of the matter, and that means all 12 people would have to decide whether you committed these offenses or not. If you go by court trial, it would just be me, the Court, making a determination to determine whether or not you committed this offense or not. Understand that?
“THE DEFENDANT: Yes.
“THE COURT: Understand a jury could come back, all 12 could come back, say you’re not guilty or all 12 come back, say you are guilty or not be able to reach a decision, can’t reach a decision, that is a mistrial situation. Understand that?
“THE DEFENDANT: Yes.
“THE COURT: There won’t be a mistrial if the Court does it. The Court will make a determination you’re guilty or not guilty. Understand that?
“THE DEFENDANT: Yes.
“THE COURT: And if you give up your right to a jury trial, you don’t give up your right or rights, the right to confront, cross-examine witnesses, subpoena power of the Court to compel the attendance of witnesses, documents you need to help in your defense, right to any defense, you have the right to remain silent, not to incriminate yourself, require the prosecution to prove the case against you beyond a reasonable doubt. Still going to have to do all of that stuff at a court trial. Understand that?
“THE DEFENDANT: Yes.
“THE COURT: Now, with that in mind, are you willing to give up your right to a court trial on the alleged two charges and alleged prior convictions against you? [Italics added.]
“THE DEFENDANT: Yes.
“THE COURT: All right. And, [defense counsel], you’re satisfied you’ve had sufficient time to discuss the waiver of the court trial with your client, and he understands and is willing to waive; is that correct?
“[DEFENSE COUNSEL]: Court said ‘waiver of court trial, ’ waiver of jury trial.
“THE COURT: Waiver of jury trial. Thank you.
“[DEFENSE COUNSEL]: I discussed that.
“THE COURT: Thanks for correcting me on that. [¶] People also willing to waive their right to jury trial on these matter[s]?
“[PROSECUTOR]: Yes.
“THE COURT: Find you made a knowing, voluntary, intelligent waiver of rights, understand the nature of the jury trial versus a court trial. Find you made a willful, voluntary waiver of a jury trial, the matter to proceed to court trial on the alleged two counts and alleged prior convictions.”
There was no objection to the court’s ruling on this matter.
A criminal defendant may waive fundamental rights, including the right to a jury trial. (People v. Collins (2001) 26 Cal.4th 297, 305.) A defendant’s waiver of the right to jury trial, as with other fundamental rights, may be accepted by the court only if the waiver is knowing, intelligent and voluntary. (Colorado v. Spring (1987) 479 U.S. 564, 573; New York v. Hill (2000) 528 U.S. 110, 114-118; People v. Smith (2003) 110 Cal.App.4th 492, 500.) The waiver must be taken from the defendant personally (People v. Montoya (2001) 86 Cal.App.4th 825, 829), and it must be an express waiver of the right to a jury trial (People v. Ernst (1994) 8 Cal.4th 441, 445). Thus, the waiver will not be implied from conduct or circumstances. (Ibid., citing People v. Holmes (1960) 54 Cal.2d 442.)
In determining the existence of waiver, no specific formula is required: “‘In determining whether there has been an effective waiver of a jury trial in favor of a court trial, the cases do not require a specific formula or extensive questioning beyond assuring that the waiver is personal, voluntary and intelligent. [Citations.]’ [¶] Waiver is ordinarily a question of fact. The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. (See People v. McArthur (1992) 11 Cal.App.4th 619, 627.)” (People v. Smith, supra, 110 Cal.App.4th at pp. 500-501.)
In Holmes, after the defendant’s counsel indicated the defendant would waive jury trial, the court instructed the prosecutor to take the waiver. The prosecutor asked the defendant if he understood his right to a jury, which the defendant acknowledged. However, no express waiver was made by the defendant. The Supreme Court reversed because the defendant “did not express in words a waiver of his right to a jury trial, and it has been uniformly held that the waiver must be so expressed and will not be implied from a defendant’s conduct.” (People v. Holmes, supra, 54 Cal.2d at pp. 443-444.)
In Ernst, the defense counsel mistakenly represented to the judge that a waiver of jury trial had already been taken, and the defendant was convicted following a court trial. On appeal, the prosecutor conceded that the defendant never expressly waived his right to a jury trial, but argued that such a waiver may be implied from the totality of circumstances. The Supreme Court rejected this contention and reversed due to failure to obtain an express waiver of jury trial from the defendant. (People v. Ernst, supra, 8 Cal.4th at pp. 445-448.)
In the present case, as distinguished from both Holmes and Ernst, defendant did make an express waiver of his right to a trial by jury. The trial court’s entire colloquy with defendant was to confirm that defendant personally understood what he was giving up by waiving “[his] right to a jury trial.” [Italics added.] When, at the end of this discussion with defendant, the court inadvertently misspoke and used the words “court trial” in asking defendant if he was willing to give up “[his] right, ” there could be no doubt what right the court was referring to. Defendant expressly responded “yes” to the court’s query, whereupon defense counsel offered a prompt corrective statement to clarify the waiver was of jury trial, not court trial, and the court thanked him for making the correction. In other words, there was an obvious misstatement that was promptly corrected, and in context there was no potential for misunderstanding. The court then announced that defendant had made a knowing and voluntary waiver of jury trial, to which ruling there was no objection. Upon this record, we conclude defendant’s “yes” was an express waiver of his right to trial by jury.
II. The Chain of Custody Evidence Was Sufficient to Support the Conviction
Next, defendant argues there was insufficient evidence to allow the trial court to conclude the substance tested by the criminalist was the same as was seized from defendant by Officer Villegas. We disagree.
“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Bolden (2002) 29 Cal.4th 515, 553.) While defendant couches his argument in terms of federal due process, the standard of review is to the same effect. (People v. Rodriquez (1999) 20 Cal.4th 1, 11.) Under principles of federal due process, the reviewing court asks, after viewing the evidence in the light most favorable to the prosecution, whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted.)
According to defendant, the chain of custody evidence was insufficient to support the conviction because Officer Villegas never explained what he did with the “item” he seized from the floor during the booking search. We conclude that although the officer did not explicitly state the process he followed concerning this item, other testimony adequately supplied what was lacking.
First, we note that the so-called item is what Officer Villegas described as “a small plastic wrapped bundle of a brown sticky substance.” The bundle was discovered during the pre-booking search when defendant flung it out of his sock. Defendant was asked “what’s this?” and he responded, “looks like heroin.”
Second, Department of Justice criminalist Seger testified that she had an opportunity to test a substance that was “given to [her] from the California Highway Patrol from an Officer Villegas regarding a subject named Arthur R. Jones, ” specifically regarding “an offense date of October 24th, 2005.” She also indicated a specific California driver’s license number was provided. The trial judge concluded that “[b]ased upon the way the questions [were] asked the criminalist, I find that the drugs that were seized were taken by Officer Villegas and given to the DOJ for analysis.”
In light of the above testimony, including the criminalist’s very specific affirmations at trial that when Officer Villegas gave her the substance, certain identifying indicia were provided such as the subject’s name, date of the offense, and driver’s license, we conclude there was sufficient evidence for the trial court to conclude beyond a reasonable doubt that the item seized from defendant was the same heroin that criminalist Seger tested. This ground for appeal fails.
III. Denial of Motion to Strike Priors Was Not Abuse of Discretion
Defendant contends the trial court abused its discretion in refusing to strike or dismiss his prior convictions, resulting in a sentence of 25 years to life for possession of 0.11 grams of heroin. Defendant also argues the court may have applied inappropriate criteria and/or improperly conducted “its own investigation” into the circumstances of the priors. As more fully discussed hereafter, we find these arguments to be without merit.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the California Supreme Court explained that under section 1385, subdivision (a), a trial court may, in the furtherance of justice, strike or vacate an allegation or finding under the “Three Strikes” law that a defendant has previously been convicted of a serious and/or violent felony. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.) The court’s exercise of discretion in the furtherance of justice “requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People.” (Id. at p. 530, italics in original.)
Sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i).
In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court articulated the standard for striking prior convictions under the Three Strikes law, as follows:
“We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (People v. Williams, supra, 17 Cal.4th at p. 161, italics added.)
The trial court’s decision whether or not to strike a prior conviction for purposes of the Three Strikes law is subject to review under the deferential abuse of discretion standard. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434.) Under this standard, the ruling will be upheld unless it “‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams, supra, 17 Cal.4th at p. 162.) As more fully explained in People v. Carmony (2004) 33 Cal.4th 367:
“In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] 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.”’ (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez), quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ (Alvarez, at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.) Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.
“Because ‘all discretionary authority is contextual’ (Alvarez, supra, 14 Cal.4th at p. 978), we cannot determine whether a trial court has acted irrationally or arbitrarily in refusing to strike a prior conviction allegation without considering the legal principles and policies that should have guided the court’s actions. We therefore begin by examining the three strikes law.
“‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ (Romero, supra, 13 Cal.4th at p. 528.) To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.] [¶] … [¶]
“… Because the circumstances must be ‘extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ (Strong, supra, 87 Cal.App.4th at p. 338), the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case -- where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ -- the failure to strike would constitute an abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at pp. 376-378.)
At the sentencing hearing in the present case, defendant brought a Romero motion to strike his prior serious felony convictions. The three prior convictions occurred in 1968, consisting of instances of oral copulation by force (§ 288, subd. (b)) and sodomy by force (former § 286.1) perpetrated while defendant was in the Fresno County Jail, the sordid details of which are recounted in People v. Jones (1970) 10 Cal.App.3d 237, 241-242. Defendant argued that these felony convictions occurred “almost 40 years ago” and constituted a single period of aberrant behavior in his youth. He claimed he was not a “violent recidivist” but a drug addict who should be put in a program. He contended that his criminal record “shows a decreasing level of criminality consistent with a battle with drug addiction, ” and at age 59, he poses little or no danger to society. For these reasons, defendant argued that a sentence of 25 years to life was “grossly disproportionate.”
People v. Superior Court (Romero), supra, 13 Cal.4th 497.
In opposition to the motion, the prosecutor emphasized that defendant is “a lifelong criminal, ” whose crimes include 28 separate incidents of criminal behavior ranging from brutal sexual assaults to thefts, batteries, drug infractions and multiple violations of parole, and that defendant has spent much of his adult life in jail or prison. Because defendant is a recidivist offender, the prosecutor argued he clearly fell within the intent of the Three Strikes law and the priors should not be stricken.
On June 8, 2006, the trial court considered and denied defendant’s Romero motion. Following oral argument, the court noted it had reviewed the moving and opposing papers, the probation report, the section 969b packet and the appellate court ruling in defendant’s prior “strikes” case. The court acknowledged the age of the 1968 felonies, but also considered that “there were two separate victims” in the time period in which defendant committed those serious crimes. And even considering that it may have been “an aberrant period, ” the court concluded that defendant’s prospects were “horrible” because he’s “never been able to stay out of prison, ” and his situation had spiraled downhill due to his drug addiction. The court then summarized defendant’s more recent convictions and prison time, beginning in the 1980’s. Among them was a 1997 drug offense for possession of heroin in violation of Health and Safety Code section 11350 (the same as in the instant case) in which defendant received an eight-year prison sentence. Once defendant got out of prison, he was arrested again for the very same offense. Moreover, contrary to defendant’s characterization of the present conviction, the court noted “[i]t is a serious offense … [i]t’s possession of drugs.” In sum, defendant’s criminal record demonstrated that he is a person who “can’t stay out of trouble.”
“[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Although defendant now claims willingness to undergo treatment for his drug problem, the trial court had a reasonable basis for declining to strike the priors in light of defendant’s past history of repeat offenses. It is clear that defendant simply did not learn his lesson, even after serving extensive prison time for drug violations.
In the course of explaining its ruling on the motion, the court noted that the reason defendant received only eight years for the 1997 drug conviction was a plea deal in which the district attorney agreed to strike two of the priors, so “[h]e’s already had the advantage of asking the Court to have strikes stricken against him.” That is, it appeared to the court that defendant was given a “chance” back in 1997, and “wasn’t able to keep his end of the bargain.” Defendant seizes upon the court’s comments and asserts that reversible error occurred because the existence of the plea agreement was an improper factor and it was not a fact proven at trial but was the result of an improper investigation by the court.
These remarks were prefaced with the statement that “if anyone had bothered to go look at that file, ” so it seems the court may have reviewed the court file in the 1997 conviction. We note that nothing in the evidentiary record herein concerning priors expressly mentioned the 1997 plea agreement. A certified docket sheet from the 1997 conviction was submitted to the court but does not state that any priors were stricken pursuant to a plea agreement. It does, however, indicate defendant pled guilty to the possession of heroin count and to only one prior under section 667, subdivision (d). The 1997 conviction is also referred to in the probation report, but the existence of a plea bargain is not mentioned therein.
We conclude there was no reversible error. First of all, defendant has failed to present any authority for the proposition that a trial court may not consider whether there were former plea agreements in which priors were stricken. In our view, such information would potentially be relevant to a Romero motion, since it might assist the court in ascertaining whether a defendant is a repeat offender who has failed to learn from prior judicial punishment, or has failed to take advantage of prior leniency from the court. (See, e.g., Advisory Committee Comment to California Rules of Court, rule 4.421 [“Facts concerning the defendant’s prior record and personal history may be considered”]; and 4.421(b) [relevant “factors relating to defendant” enumerated].) Thus, defendant has not shown the court’s discretion was exercised based on an illegitimate factor.
Defendant’s main point of contention is with the method by which the court obtained the information regarding the plea bargain. However, any such error was waived by defendant’s failure to object in the trial court proceedings. (People v. Scott (1994) 9 Cal.4th 331, 348, 354 [waiver doctrine applies to failure to raise claims of error concerning procedural or factual flaws in trial court’s statement of reasons for its sentencing choices]; People v. Brown (2000) 83 Cal.App.4th 1037, 1041-1042 [same].) Moreover, the error, if any, was not prejudicial in this case. First, the background information regarding the 1997 conviction was only one factor among many cited in the court’s ruling. It appears the court was primarily concerned about defendant’s long criminal history and his inability to refrain from criminal conduct. Second, whether or not the eight-year sentence in the 1997 conviction came as a result of a plea agreement (with dismissal of priors), the crux of the court’s observation remains true. Namely, defendant failed to take advantage of less severe sentences in the past. That is, defendant had a fair opportunity at the time of his 1997 conviction, when he received an eight-year sentence, to learn his lesson and begin to act responsibly. Since he failed to do so then, the court was not inclined to strike the priors now. Under the circumstances, any error in regard to the court’s method of learning of the 1997 plea was harmless under any standard. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)
Defendant notes cases in which independent investigations by judges have been held to constitute violations of due process or judicial misconduct. (See Noble v. Kertz & Sons Feed & Fuel Co. (1945) 72 Cal.App.2d 153, 158 [reversible error where judge independently viewed accident scene without parties’ consent and observations were basis for decision]; Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518, 536 [judge’s investigation of hit and run scene without notice to parties was judicial misconduct]; People v. Handcock (1983) 145 Cal.App.3d Supp. 25, 32 [same].)
We conclude the trial court did not abuse its discretion in denying defendant’s Romero motion. Given defendant’s extensive criminal history spanning several decades, his repeated parole violations and recidivism, and his past unwillingness or inability to control his illegal drug use, the court’s decision was not irrational or capricious. “‘It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions.’” (People v. Romero, supra, 99 Cal.App.4th at p. 1434.) This ground for appeal fails.
IV. Defendant Waived Claim of Cruel and/or Unusual Punishment
For the first time, defendant contends his sentence of 25 years to life constitutes cruel and/or unusual punishment within the meaning of the state and federal constitutions. (Cal. Const., art. I, § 17; U.S. Const., 8th Amend.) The People argue the issue was not preserved for appellate review. We agree.
Claims of cruel and unusual punishment in violation of constitutional standards involve fact-specific determinations about the offense and the offender, and must be raised in the trial court to avoid waiver. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Although defendant urged the trial court to exercise its discretion to dismiss prior strikes, and in so doing argued that the sentence would otherwise be excessive or disproportionate, defendant never claimed the sentence would violate the constitutional prohibitions against cruel and/or unusual punishment. We conclude defendant has waived the issue and therefore his appeal on this ground fails.
Nevertheless, even if defendant had preserved the issue he would not have prevailed, for the reasons briefly noted below.
Under the state constitutional standard, a prison sentence may constitute cruel and/or unusual punishment if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) Especially relevant to this determination is an examination of the nature of the offense and the offender, “‘with particular regard to the degree of danger both present to society.’” (People v. Dillon (1983) 34 Cal.3d 441, 479.) In assessing the nature of the offense, the court considers the totality of the circumstances surrounding the commission of the crime, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts. (Ibid.) In analyzing the nature of the offender, a court should consider “the defendant’s individual culpability as shown by factors such as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.)
Defendant argues that the sentence of 25 years to life is grossly disproportionate to the crime of possession of heroin. He emphasizes that he committed the serious violent felonies a long time ago (in 1968), and his criminal behavior since that time has been of a less serious nature. According to defendant, the more recent convictions indicate what is typical for a lifelong but nonviolent drug addict. Further, defendant argues that because of his age (59 years), the punishment is basically a life sentence for a passive and nonviolent offense of possession of heroin.
The People counter it is not merely the current crime that has earned defendant’s sentence under the Three Strikes law, but his extensive criminal history and recidivism. We fully agree. In reviewing the proportionality of the punishment, it is appropriate to give considerable weight to the fact that defendant is “a frequent repeat offender who seemingly has not learned from past incarceration.” (People v. Martinez, supra, 71 Cal.App.4th at pp. 1510-1511.) In Martinez, a defendant was convicted of possession of methamphetamine, and the court upheld the life sentence imposed under the Three Strikes law based on his recidivism. (Ibid.) The same conclusion is appropriate in this case. “‘Recidivism in the commission of multiple felonies poses a manifest danger to society[, ] justifying the imposition of longer sentences for subsequent offenses. [Citations.]’” (People v. Stone (1999) 75 Cal.App.4th 707, 715 [sentence of 25 years to life for drug conviction not cruel and unusual punishment given the defendant’s recidivism].) As we summarized in People v. Cooper (1996) 43 Cal.App.4th 815 at pages 823-824:
“Under the three strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. (Rummel v. Estelle (1980) 445 U.S. 263, 284.) 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. Like the line dividing felony theft from petty larceny, the 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.’ (Id. at pp. 284-285.)”
Similarly, the prohibition under the federal constitution against cruel and unusual punishment is applicable to noncapital cases only in exceedingly rare or extreme cases involving sentences that are grossly disproportionate to the offense -- which is described as a “narrow proportionality principle.” (Ewing v. California (2003) 538 U.S. 11, 20, 30 [lead opn. of O’Connor, J.]; Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
In Ewing, the Supreme Court upheld a Three Strikes sentence, even when applied concerning a nonviolent third strike. The defendant had stolen three golf clubs worth $1,200 as his third strike offense, and was sentenced to 25 years to life. (Ewing v. California, supra, 538 U.S. at p. 20.) The Supreme Court explained that the sentence did not constitute cruel and unusual punishment: “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.” (Id. at p. 25.) Further, the Supreme Court explained that the legislative goal of punishing recidivist offenders more harshly is justified: “In weighing the gravity of [the defendant’s] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. 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: ‘[I]t 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.’ [Citation.] To give full effect to the State’s choice of this legitimate penological goal, our proportionality review of [the defendant’s] sentence must take that goal into account.” (Id. at p. 29.) The court concluded the defendant’s sentence in that case “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.)
Based on the above summary of the applicable constitutional standards, we conclude that even had defendant preserved this issue on appeal, he could not prevail because of his extensive criminal record and recidivism. Defendant’s criminal conduct as an adult began in 1966 and continued unabated, except in periods of incarceration, to the time of his present conviction, and includes at least 28 separate incidents of criminal behavior. He has spent much of his adult life in prison, and is clearly a habitual, recidivist offender who has not been deterred by his periods of incarceration and has refused to learn any lesson from prior punishment. Since the time of his violent sexual attacks perpetrated in 1968, he has demonstrated again and again that he is unwilling to refrain from criminal conduct that is dangerous to society, including thefts, batteries, driving under the influence, multiple drug offenses and multiple violations of parole. And although defendant downplays the seriousness of his current heroin possession conviction, we cannot ignore that such offenders often revert to serious crimes to support their addiction and pose a further danger to others by driving under the influence. Defendant’s sentence of 25 years to life, when considered in light of his criminal history and recidivism, was not so grossly disproportionate as to violate the prohibition against cruel and unusual punishment under either state or federal standards.
In appellate review on grounds of cruel and/or unusual punishment, as long as a punishment is proportionate to the defendant’s individual culpability, there is no requirement that it be proportionate to the punishments imposed in other similar cases. (People v. Stanley (2006) 39 Cal.4th 913, 966-967.) Accordingly, the determination in this case may be based solely on consideration of the offense and the offender. (See, e.g. People. v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; People v. Meeks (2004) 123 Cal.App.4th 695, 707 [only necessary to consider secondary criteria in rare case that comparison leads to inference of gross disproportionality].) In any event, defendant has not shown his sentence is disproportionate to other recidivist offenders with similar criminal records. (See People v. Goodwin (1997) 59 Cal.App.4th 1084, 1094.)
In conclusion, defendant waived his claim that the sentence imposed was cruel and/or unusual in violation of the state and federal constitutions. His appeal therefore fails due to this failure to preserve the issue on appeal. But even if he had preserved the claim, he would not prevail for the reasons explained herein above.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Gomes, Acting P.J.
Hill, J.