Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. BLF004649 John J. Ryan, Judge. (Retired judge, Orange Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Patrick M. Ford, under appointment by the Court of the Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Donald W. Ostertag, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Defendant, Santiago Luis, Jr., argues: 1) the trial court abused its discretion when it denied defendant’s motion to dismiss his 19 strike priors in the interest of justice; and 2) the 25 years-to-life prison sentence under the three strikes law is cruel and unusual punishment under these circumstances. As discussed below, we affirm the judgment of the trial court.
Facts and Procedure
On May 18, 2007, defendant was an inmate at Ironwood State Prison. At about 8:00 p.m., defendant was walking around the exercise yard. There were about 200 other inmates in the yard. From a distance of several hundred feet, a prison guard lieutenant observed defendant bend over and pick up something from under a door that divided the yard from an overflow housing unit. The lieutenant radioed other officers in defendant’s vicinity and ordered them to detain and search him. The officers searched defendant. He had clenched his fist and was rolling something in his hand. Defendant dropped the package and an officer picked it up. The package contained 0.02 grams of tar heroin, which was the size of a match head and barely enough to qualify for possession rather than merely residue. Defendant was less than two years from being released after serving eight years of a 10-year sentence for possessing cocaine base for sale.
On May 28, 2009, a jury found defendant guilty of possessing heroin while in prison (Pen. Code, § 4573.6). In a bifurcated bench trial, the trial court found true that defendant had 19 prior strike convictions (§§ 667, subds. (c) and (e)(1), and 1170.12, subd. (c)(1)). The court also found true that defendant had four prison term priors (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On September 11, 2009, the trial court denied defendant’s motion to strike his prior strike convictions under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). That day the court sentenced defendant to a total term of 25 years to life. The court struck defendant’s four prison term priors. This appeal followed.
Discussion
1. Romero Motion
Defendant argues the trial court abused its discretion by refusing to dismiss any of his 19 prior strike convictions pursuant to section 1385 and Romero. We disagree.
A trial court’s decision to not dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony).) “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.”’ [Citations.] 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.’”’ [Citation.] 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.” (Id. at pp. 376-377, quoting 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 and People v. Preyer (1985) 164 Cal.App.3d 568, 573; see also People v. Myers (1999) 69 Cal.App.4th 305, 309 (Myers).)
The California Supreme Court explained, “In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Carmony, supra, 33 Cal.4th at p. 378, citing People v. Langevin (1984) 155 Cal.App.3d 520, 524 and People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); Myers, supra, 69 Cal.App.4th at p. 310.)
But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (Myers, supra, 69 Cal.App.4th at p. 310.) “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’ [citation], 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.” (Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The touchstone of the analysis must be “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.” (Williams, supra, 17 Cal.4th at p. 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Defendant contends the court should have granted his request to strike his 19 strike priors because he is a 53-year-old heroin addict suffering from Hepatitis C and a serious thyroid condition, who was caught with barely more than a trace of heroine. Defendant cites the lack of quality health care in the California prison system, the non-violent and minor nature of his current offense, and that he is past the primary age during which he is likely to re-offend. He also points out that 15 of his 19 strikes stem from a brief period in June and July of 1983, during which he stood outside a bar pretending to be a police officer, frisked patrons as they left, and took their money. Defendant did not use a gun during these robberies, and committed the crimes to pay for his heroin addiction.
However, defendant fails to point out that, after his conviction and prison sentence for the 1983 gun-free robberies, he was convicted of three more robberies in 1991, and possession for sale of cocaine base in 2002, for which he was serving a 10-year prison sentence when he was found possessing heroin in prison. Thus, even if one were to disregard the 15 robberies from 1983 based on their remoteness in time, defendant still had a significant record of committing crimes over a significant period of time.
Defendant was convicted of his first felony robbery and felony burglary in 1980, after a conviction for attempted burglary in 1978.
We cannot conclude the trial court abused its discretion in declining to strike any of defendant’s nineteen prior strike convictions. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion, used improper reasons, failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record clearly shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the factors as outlined in Williams.
2. Cruel and Unusual Punishment
Defendant contends that imposition of a 25 years-to-life sentence for possessing heroin in prison violates federal and state constitutional provisions against cruel and unusual punishment. Assuming, without deciding, that defendant preserved this issue for review, we disagree.
Defendant argues his sentence is cruel and unusual under the California Constitution because he is an addict who possessed a minimal amount of heroin. Defendant’s claim that his three-strike punishment is disproportionate to the circumstances of the offense and the offender is without merit. Although defendant accurately characterizes his offense as one involving “minimal drug possession, ” his sentence was not calculated merely on the basis of his current offense, but on the basis of his recidivist behavior. (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
A. Analysis Under the Federal Constitution
The United States Supreme Court has upheld three-strikes sentencing, even when applied, as here, to a person convicted of a nonviolent third strike. In Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108], the defendant had four strike prior convictions (id. at p. 19), plus a number of non-strike priors. (Id. at pp. 18-19.) While still on parole, he stole three golf clubs, worth a total of $1,200. (Id. at pp. 17-18.) As a result, he was sentenced under California's three strikes law to 25 years to life. (Id. at p. 20.)
A plurality of three justices held that this did not constitute cruel and unusual punishment. They explained: “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, supra, 538 U.S. at p. 25 (plur. opn. of O’Connor, J.).) They noted: “In weighing the gravity of Ewing’s offense, we must place on the scales not only his current felony, but also his long history of felony recidivism.” (Id. at p. 29.) The plurality concluded: “Ewing’s 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.)
Justices Scalia and Thomas, concurring in the judgment, would have held that the Eighth Amendment does not require proportionality at all. (Ewing v. California, supra, 538 U.S. at pp. 31 (conc. opn. of Scalia, J.), 32 (conc. opn. of Thomas, J.).) Accordingly, a majority of the Supreme Court not only upheld Ewing’s sentence, but would have upheld a three-strike sentence in all but an “‘exceedingly rare’” case. (Id. at p. 21; see also Lockyer v. Andrade (2003) 538 U.S. 63, 73-76 [123 S.Ct. 1166, 155 L.Ed.2d 144].)
This is not such a case. As we held earlier in this opinion, defendant falls squarely within both the letter and the spirit of the three strikes law. Ewing teaches us that the Eighth Amendment does not prohibit California from choosing to “incapacitat[e]” such a recidivist offender. (Ewing v. California, supra, 538 U.S.at p. 25 (plur. opn. of O’Connor, J.).)
Defendant relies on Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755. There, the Ninth Circuit held that a three-strikes sentence of 25 years to life constituted cruel and unusual punishment (id. at pp. 767-773) where (1) the strikes consisted of what was essentially shoplifting, committed with barely sufficient force to constitute robbery (id. at p. 757), and (2) the current offense was a nonforcible shoplifting, resulting in a conviction for petty theft with a prior (Pen. Code, § 666). (Castro, at pp. 757-758.) The court concluded, “[T]his is the extremely rare case that gives rise to an inference of gross disproportionality....” (Id. at p. 770.) Here, by contrast, and as discussed above, defendant’s more recent convictions include three counts of robbery in 1991, along with possessing cocaine base for sale in 2002, fifteen robbery convictions in 1983, a burglary and robbery conviction in 1980, and attempted burglary in 1978. Defendant has an extremely long history of committing burglary and robbing people to maintain his long-term, and apparently ongoing, drug habit. We therefore conclude that defendant’s sentence is not cruel and unusual punishment under the federal Constitution.
B. Analysis Under the State Constitution
Under the state constitutional standard, “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.)
As long as a punishment is proportionate to the defendant’s individual culpability (“intracase proportionality”), there is no requirement that it be proportionate to the punishment in other similar cases (“intercase proportionality”). (People v. Horning (2004) 34 Cal.4th 871, 913.) Accordingly, the cruel-and-unusual determination may be based solely on the offense and the offender. (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) and cases cited.)
Here, the outstanding characteristic of both the offense and the offender was recidivism. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Based on such recidivism, a three-strike sentence-even for a nonviolent drug offense-“is not constitutionally proscribed.” (People v. Stone (1999) 75 Cal.App.4th 707, 715.)
We therefore also conclude that the sentence in this case did not constitute cruel and unusual punishment under state law.
Disposition
The judgment is affirmed.
We concur: McKINSTER J., KING J.