Opinion
H023030.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. JERRY MONTANO, JR., Defendant and Appellant.
I. Statement of the Case
A jury convicted defendant Jerry Montano of two misdemeanor counts of being under the influence of phencyclidine (PCP), two misdemeanor counts of battery on a peace officer, and felony possession of methamphetamines. Thereafter, the court found that defendant had two strike prior convictions: a 1986 residential burglary and a 1990 assault with a deadly weapon. At sentencing, the court denied defendants request to dismiss his strikes or reduce his felony conviction to a misdemeanor. It then imposed a sentence under the "Three Strikes" law of 25 years to life for felony possession and concurrent six-month terms for each misdemeanor.
The offenses arose out of two separate cases based on two incidents, one on August 28, 1999, and the other on June 4, 2000. The two cases were consolidated and tried at the same time.
On appeal from the judgment, defendant claims the court erred at trial in giving CALJIC No. 17.41.1 and later at sentencing in refusing to dismiss his strike convictions or reduce his felony conviction to a misdemeanor. He claims his attorney was incompetent because he did not move to suppress evidence and failed to object when the court refused to dismiss defendants strikes or reduce his conviction. In addition, defendant claims the matter must be remanded for resentencing under Proposition 36, an initiative measure passed in the November 2000 General Election that mandates probation for drug treatment, rather than incarceration, for nonviolent drug offenders. (Prop. 36; see Historical and Statutory Notes, 51 Wests Ann. Pen. Code (2003 supp.) foll. § 1210, p. 221.) Last, defendant claims his life sentence violates the constitutional proscriptions against cruel and unusual punishment, double jeopardy, and punishment based on a persons status.
In addition to this appeal, defendant filed two petitions for writs of habeas corpus which we have considered with the appeal. In one petition, defendant reiterates one of his claims under Proposition 36. In the other, he claims there was insufficient evidence to support a finding that one of his prior felony convictions qualifies as a strike.
We find no merit to defendants claims on appeal and affirm the judgment.
In a separate order filed this day, we deny both petitions. (See Cal. Rules of Court, rule 24(b)(4).)
II. Facts
At around 3:00 a.m., on August 28, 1999, Officer Tim Hardie of the San Jose Police Department went to Ramsgate Street in San Jose in response to a call about a man and woman "yelling and screaming and fighting." When Hardie pulled up, he saw a woman and defendant in the driveway between parked cars and the garage door. Hardie asked them several times to come out to where he could see them, but they ignored him. Instead, defendant "kind of ducked down" in front of one of the cars, and the woman "stumbled into the house." Hardie approached defendant, but he moved behind a car. When Hardie moved one way toward defendant, defendant would move the other way, keeping the car between them. They played this "game" for a while, and then defendant entered a lawn area. Keeping his distance, Hardie ordered defendant to get on the ground, but defendant ignored him. By this time, Hardie concluded from defendants demeanor and conduct that he was under the influence of PCP.
At this point, fellow Officer Bellini arrived. Keeping their distance, both Hardie and Bellini repeatedly ordered defendant to the ground. In response, however, defendant slowly ran toward them head first with his arms outstretched. The officers grabbed and then wrestled defendant to the ground. Defendant forcibly resisted and was able to free himself and run. The officers caught up to him, but he resisted and fled down the street, raising his fists at them and ignoring their commands to stop. They chased and caught him once again, but as they tried to subdue him, he pushed and kicked them and escaped one more time. The officers continued to follow him and then saw fellow Officer Tiphayachana in a patrol car. They told him to stop defendant, and he then pursued and captured him but not before being kicked in the stomach. When Hardie and Bellini arrived, all three officers were able to overcome defendants resistance and take him into custody.
On June 4, 2000, Officers Isidro Bagan and Brodie Rivera went to 19th and Roosevelt Streets in San Jose in response to a call about a suspicious vehicle. They observed defendant sitting in a Chevy van with his hands on the steering wheel staring straight ahead. They asked him to get out, but he did not respond. Thinking he may not have heard them, they repeated the command and tapped on the window, but he continued to ignore them. As a result, the officers opened the door and had to pull defendant out of the vehicle. Given defendants condition, the officers concluded he was under the influence and arrested him. In defendants vest pocket, Bagan found a small but usable quantity of methamphetamines.
III. Giving CALJIC No. 17.41.1
Defendant contends the court committed reversible error in giving CALJIC No. 17.41.1. As given, this instruction advised the jury as follows: "The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the court of this situation."
Defendant claims the instruction violated his right to a verdict by an impartial and unanimous jury, interfered with the jurys independence, chilled its deliberative process, undermined its collaborative decision-making process, and abridged its power of nullification.
Defendants claims were rejected by the California Supreme Court in People v. Engelman (2002) 28 Cal.4th 436. We are bound by that decision. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal. Rptr. 321, 369 P.2d 937.)
However, in an exercise of its supervisory power, the court directed courts to discontinue giving the instruction. (People v. Engelman , supra, 28 Cal.4th at pp. 445-449.)
Moreover, the record does not suggest that giving the instruction was harmful. There is no evidence the jury was deadlocked; no evidence of a holdout juror; no evidence that a juror refused to follow the courts instructions; and no evidence that a majority of jurors threatened to report other jurors for misconduct. Moreover, the evidence of guilt was overwhelming, and the jury deliberated for only about half a day. Under the circumstances, it is not reasonably probable the jury would have returned a more favorable verdict had the court omitted the instruction. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
IV. Refusal to Dismiss Strikes or Reduce the Conviction to a Misdemeanor
Defendant contends that the court abused its discretion in not dismissing his strike prior convictions or reducing his current felony conviction to a misdemeanor. We disagree.
A trial courts discretion to dismiss strikes in furtherance of justice is "limited." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, 917 P.2d 628.) The court must consider both the constitutional rights of the defendant and the interests of society. (Ibid.) It may not dismiss a strike to accommodate judicial convenience, relieve court congestion, or respond to a guilty plea. (Id. at p. 531.) Moreover, without first considering the defendants background, criminal history, and the nature of his present offense, the court may not dismiss a strike because it disagrees with the harsh effects of a Three Strikes sentence. (Ibid.)
For example, in People v. Williams (1998) 17 Cal.4th 148, 948 P.2d 429, the trial court dismissed one of the defendants strikes because it was 13 years old and after committing it, the defendant did not commit another violent crime. The California Supreme Court, however, held that the trial court abused its discretion. (Id. at pp. 162-164.) The court noted that the defendant had a 19-year criminal history that included strike convictions for attempted robbery and rape as well as nonstrike convictions for spousal battery, possession of firearms, and driving under the influence. The court explained, that in exercising its discretion, the trial court should give no weight to "factors extrinsic to the [Three Strikes] scheme" and must accord "preponderant weight . . . to factors intrinsic to the scheme, such as the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. [Citation.]" (Id. at p. 161.) The critical determination is whether the defendant "may be deemed outside the schemes 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." (Ibid .)
More recently, in People v. Garcia (1999) 20 Cal.4th 490, 976 P.2d 831, the court further explained that "a defendants sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences." (Id. at p. 500.)
Defendant initially claims that the trial courts reliance on People v. Strong (2001) 87 Cal.App.4th 328, review denied June 13, 2001, (hereafter Strong) indicates that the court misunderstood the scope of its sentencing discretion and/or applied the wrong standard. We first review Strong.
There, the trial court dismissed the defendants strike conviction for assault with a knife, finding him outside the spirit of the Three Strikes law because (1) it was uncharacteristic of the defendant to commit such an offense and (2) he was 41 years old and statistically posed a reduced risk to society. (Strong, supra , 87 Cal.App.4th at p. 331.) The Court of Appeal held that the trial court abused its discretion. The court noted that (1) the defendant had a 22-year criminal history that included 12 misdemeanors and five prior felonies; (2) he had committed the five felonies during the previous eight years; and (3) he committed his current felony while on parole for his last strike conviction. Contrary to the trial courts finding, the appellate court found that these circumstances placed the defendant firmly within the spirit of the Three Strikes law because he was " the kind of revolving-door career criminal for whom the Three Strikes law was devised. " (Id . at p. 340, fn. omitted.) The court explained that "a defendant who falls squarely within the laws letter does not take himself outside its spirit by the additional commission of a virtually uninterrupted series of nonviolent felonies and misdemeanors over a lengthy period. After all, the Three Strikes law was devised for the revolving door career criminal, and was expressly intended to ensure longer prison sentences . . . for those who commit a felony as long as they were previously convicted of at least one strike. The fact that a defendant who qualifies for sentencing under the Three Strikes law is also a habitual offender can hardly act as mitigation so as to take him outside the spirit of that law. Likewise, middle age, considered alone, cannot take a defendant outside the spirit of the law; otherwise, the very factor that takes a defendant within the spirit of the law-a lengthy criminal career with at least one serious or violent felony-would have the inevitable consequence-age-that would purportedly take him outside it. Extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very statutory scheme within which he squarely falls and whose continued criminal career the law was meant to attack." (Id. at pp. 331-332, fns. omitted, italics added.)
Given the statement italicized above, defendant claims that Strong erroneously raised the applicable standard for dismissing a strike by requiring a trial court to find extraordinary circumstances. Thus, in relying on Strong, the trial court here misunderstood the scope of its discretion and/or applied the wrong standard. We reject defendants claim because he misreads Strong.
The purpose of the Three Strikes law is "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (Pen. Code, § 667, subd. (b); In re Cervera (2001) 24 Cal.4th 1073, 1080.) "There can be no doubt that the legislative purpose-to punish recidivist criminals more severely than others-is a proper goal. It has to do with preventing and punishing crime, and with protecting the public from criminals. The core idea is that those who have not drawn the proper lesson from a previous conviction and punishment should be punished more severely when they commit more crime." (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1329, italics added.)
Further statutory references are to the Penal Code unless otherwise specified.
For the purposes of the Three Strikes law, a recidivist offender is any defendant who is convicted of a felony and has at least one prior strike conviction. ( § 667, subd. (c).) Thus, for example, a defendant with one current felony and only one strike is presumptively within the spirit of the law, which mandates a harsh sentence. The court may make an exception to the general sentencing mandate only if the circumstances and interests of justice warrant treating the defendant as if he or she were a first time offender. In other words, even when a defendant only minimally qualifies as a recidivist under the Three Strikes law, dismissing a strike is permissible only when there are exceptional circumstances.
As noted, in considering factors intrinsic to the Three Strikes law, the trial court must give preponderant weight to, among other things, the nature and circumstances of the defendants prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. (People v. Williams, supra , 17 Cal.4th at pp. 160-161; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531.) It follows that when the evidence shows that the defendant not only minimally qualifies as a recidivist but also has a long criminal career and has repeatedly failed to reform, the defendants background, character, and prospects strongly militate against dismissal. Indeed, under such circumstances, the interests of justice favor a lengthy Three Strikes sentence because such habitual offenders and career criminals represent the prime target of the Three Strikes law. (See People v. Gaston (1999) 74 Cal.App.4th 310, 320; e.g., People v. Stone (1999) 75 Cal.App.4th 707, 717; People v. Thornton (1999) 73 Cal.App.4th 42, 49; People v. Barrera (1999) 70 Cal.App.4th 541, 554-555; People v. Humphrey (1997) 58 Cal.App.4th 809, 813; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054.)
In our view, therefore, the comments in Strong merely reflect the obvious. If it takes exceptional circumstances to depart from the Three Strikes sentencing mandate when a defendant only minimally qualifies as a recidivist, then it will necessarily take more compelling-i.e., extraordinary-circumstances to do so when the defendant is a classic recidivist offender. Thus, we do not find that Strong changes the underlying rules governing an exercise of discretion to dismiss a strike or raises the standard for doing so. Rather, we consider Strong to be fully consistent with the principles outlined by the California Supreme Court, especially the requirement that courts give preponderant weight to a defendants criminal background, character, and prospects.
Defendant alternatively claims that the court abused its discretion in refusing to dismiss at least one of his strikes or reduce his felony conviction to a misdemeanor. Again we disagree.
In People v. Myers (1999) 69 Cal.App.4th 305, the court explained that under the deferential standard for reviewing a trial courts exercise of discretion, "an appellant who seeks reversal must demonstrate that the trial courts decision was 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. 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 courts ruling, even if we might have ruled differently in the first instance. [Citation.]" (Id . at pp. 309-310.)
In ruling on defendants request, the court first noted that defendant had an "extensive criminal" history. The record supports the courts finding. Defendants criminal career spans 17 years, from 1984 to the current offense in 2001. During this time, defendant amassed over 25 misdemeanors for driving and being under the influence, battery on a peace officer, brandishing a weapon, petty theft, unauthorized entry, false personation, providing false identification, and driving without a proper license. He also has five felony convictions for burglary, assault with a deadly weapon, escape, petty theft with a prior, and possession of drugs. In addition, defendant has been granted formal probation six times but has repeated probation violations for committing new offenses, failing to appear, using drugs, and failing to complete treatment programs. He similarly has been placed on parole three times and violated parole, most recently with his current offenses. Indeed, defendants last offense occurred when he was free on bail after his arrest for the incident in August 1999.
After reviewing police reports and probation reports, the trial court observed that defendant had a tendency to minimize his misconduct and thus has "never" accepted responsibility for them, often challenging police reports as inaccurate or claiming that witnesses lied. Again, the record supports this observation.
In his statement in the probation report for a 1986 burglary, to which he pleaded no contest, defendant denied committing the crime and claimed he had been falsely accused. At that time, he also lied about his criminal history and use of drugs.
In a report prepared in 1988 for a probation violation hearing based on arrests for a variety of offenses, including burglary, being under the influence of drugs or alcohol, resisting arrest, false identification, and attempted escape, defendant complained that the prosecutor filed charges even though the victim of the alleged burglary - his girlfriend - retracted her charges. He also claimed that it was necessary to escape from jail because the guards refused to protect him.
A report prepared in 1994 for another probation violation hearing based on defendants failure to report to his probation officer, failure to complete drug counseling, using drugs, and being involved in an altercation at a Mervyns store, defendant told the probation officer that his failure to report was due to a broken leg, for which, however, he failed to provide any evidence. He claimed he was unable to complete counseling because of a "family emergency," which he never explained. He denied using drugs despite test results to the contrary. And he claimed that no charges were filed after the incident at Mervyns, even though he pleaded guilty to petty theft.
In the probation report for the current offenses, defendant denied that he charged at and battered the arresting officers, claiming instead that he simply approached the officers with his hands up, and they tackled him to the ground. He also denied that the drugs found in his pocket were his. He claimed the police fabricated the report.
Given the nature and extent of defendants criminal history and failure on probation and parole, the trial court further found that defendant "presented a continuous danger to the community." Indeed, the court noted that defendant was involved in a new incident while in custody for his current offenses. The probation report relates that "on December 19, 2000, [defendant] failed to follow orders by leaving an interview room and exhibited aggressive behavior by clinching his fists towards correctional staff and stating, Im on trial and dont give a fuck about sitting down. While placing restraints on the defendant, he attempted to pull away from correctional officers. While placed in a room, he began kicking the door and banging on a glass window. Due to this conduct the defendant was placed in a higher security level."
We note that when the trial court mentioned the recent jail incident, defendant claimed he was the victim, stating, "Your honor, please. I had five months no drug program, free of staff, you know staff issues. This issue was a police officer-Ive been in red for four and a half months, no complaints by an officer. The officer just wrote that report. I didnt even get an infraction until this incident. No paperwork at all, just wrote me up. I didnt do anything to that officer. Actually [I] got hurt by that officer. Im not-" At that point, the court interrupted defendant, stating, "Unfortunately your record doesnt backup [sic] your statements."
The probation officer further stated, "An inspection of the defendants previous history reflects that he has possessed dangerous weapons, has assaulted individuals, repeatedly stolen property, drove under the influence of alcohol, and has been abusing controlled substances." Given his record, failure to take advantage of opportunities for rehabilitation on probation and parole, financial instability, and drug dependence, the probation officer considered defendant to be a "a continued threat to society." The court agreed that defendants criminal history and background and his repeated failure on probation and parole and persistent drug addiction demonstrated that he had "gained no perceptible insight into [his] own behavior" and had never demonstrated an ability to conform it to the behavior of a law abiding citizen.
In sum, the trial court found that when viewed in light of the interests of justice, the circumstances were not so compelling or extraordinary as to warrant dismissing a strike or reducing defendants conviction and treating him as a first time offender.
On appeal, defendant takes issue with the courts view that he "never" accepted responsibility for his criminal behavior. He notes that often he pleaded guilty and thereby acknowledged wrongdoing at an early stage of the proceedings. However, the trial court was familiar with defendants criminal history, including his pleas. Moreover, even if the word never was technically inaccurate, the court was essentially stating that the numerous instances where defendant denied or minimized his misconduct demonstrated a propensity to avoid accepting full responsibility for it.
Defendant claims the courts findings that he was unable to conform his behavior and presented a danger to society are empty and meaningless "rubrics." As noted, however, these findings are supported by the record.
Defendant claims the court erroneously believed that he denied "charging" at Hardie and Bellini. According to defendant, there is no evidence that he charged, and his statement to the probation officer-i.e., that he simply approached the officers with his arms up and they tackled him-was consistent with Hardies testimony at trial.
Hardie testified that defendant "charged kind of in between us." "He wasnt moving very quickly because they have real diminished capacity, so it was kind of slowly. But he ran at us kind of with his arms kind of an up kind of, his arms up kind of not over his head, up to his head kind of just running at us." In all, the record establishes that defendant refused to comply with the officers commands and, to avoid being arrested, raised his arms, and headed toward them. Even if defendants statement to the probation officer is not inconsistent with Hardies testimony, his statement minimizes his conduct and fosters false impression.
Defendant next claims the trial court ignored circumstances that mitigated his batteries. He argues that before the incident escalated to the point where he forcibly resisted arrest, Hardie had unlawfully detained him and was exercising his constitutional right to resist unlawful police conduct. This claim is also meritless because, as we explain more fully below (see discussion, post, pp. 18-20), the record does not support a finding that defendant had been unlawfully detained.
Finally, defendant notes evidence that from 1982 to 1989, he worked continuously at a paving company. He notes that he has marketable skills as a machine operator, landscaper, construction worker, and machinist, and while incarcerated, he developed skills in welding, automotive repair, and hazardous waste disposal. He further points out that correctional staff gave him positive evaluations in 1994 and 1995, just before he was released on parole, which, he claims, show that he is intelligent and behaves with civility when treated properly. Last, he notes that he obtained temporary work after his release on parole in 1996.
Given all of the evidence, defendant argues that on balance, it presents a "mixed picture." He is a "misdemeanant recidivist with some tendency to sporadic belligerent flare-ups" who, at the same time, "had assumed educational initiative and job responsibility on his own and also conducted himself affirmatively and positively in prison." Defendant claims that under the circumstances, probation for drug treatment and counseling were more appropriate than incarceration, and the potential benefits of such treatment outweighed societys interest in punishing defendant harshly for simple possession. We are not persuaded.
Defendants work skills and prison reviews do not, as a matter of law, outweigh the evidence of his habitual criminality, drug use, and failure on probation and parole. Indeed, despite defendants native intelligence and work skills his criminal career continued unabated after his release from prison. Under the circumstances, the court could reasonably conclude that defendants prospects for successful rehabilitation and reintegration into society were poor.
In sum, the record does not establish as a matter of law that defendant does not come within the spirit of the Three Strikes law, and defendant has failed to convince us that the trial courts ruling was arbitrary or irrational.
V. Remand under Proposition 36
Defendant contends the matter must be remanded for resentencing in light of Proposition 36. He acknowledges that his prior prison term and current misdemeanor battery conviction involving physical injury or the threat of physical injury rendered him ineligible for probation and mandatory drug treatment under the Proposition 36. (See § 1210.1, subd. (b).) However, he argues that the trial court was unaware that under section 1385, it had the discretion to disregard the prior prison term and misdemeanor battery convictions and thereby make him eligible. This claim lacks merit.
Initially, we agree with defendant that his record would render him ineligible under Proposition 36.
Under section 1210.1, subdivision (b), the mandatory provisions for probation and drug treatment in Proposition 36 do not apply to a variety of persons whose current offense is a qualifying a nonviolent drug possession offense. Those ineligible persons include "(1) Any defendant who previously has been convicted of one or more serious or violent felonies . . ., unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense, or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person." (§ 1210.1, subd. (b)(1), italics added.)
The five-year period referred to in section 1210.1, subdivision (b)(1) is the five years immediately prior to the commission of the current "nonviolent drug possession offense." (People v. Superior Court (Martinez) (2002) 104 Cal.App.4th 692, 702.) Here, defendant committed his "nonviolent drug possession offense"-possession of methamphetamines (see § 1210, subd. (a) [defining the term]-on June 4, 2000. However, the record shows that on June 4, 1995, five years before defendant committed the offense, he was still in prison serving his sentence. Moreover, the circumstances surrounding his two convictions for misdemeanor battery on peace officers establish that they involved the threat of physical injury-i.e., kicking the peace officers. These batteries also occurred within five years of his current nonviolent drug possession offense.
We further note that section 1210.1, subdivision (b) also excludes "(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." ( § 1210.1, subd. (b)(2), italics added.) Section 1210, subdivision (d) provides, "The term misdemeanor not related to the use of drugs means a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in paragraph (1)."
In addition to drug possession, defendant was convicted of two counts of misdemeanor battery on a peace officer. Misdemeanor battery involves unlawful touching, and defendant committed the batteries while aggressively resisting a lawful arrest. The fact that defendant was under the influence at the time was a collateral circumstance that did not make his offenses "related" to the possession, use, or transportation of drugs. Indeed, a contrary view is unreasonable. Proposition 36 was designed to reduce drug use and dependence and improve public health and safety. (Prop. 36, §§ 2 & 3.) However, if being under the influence of drugs when committing a misdemeanor automatically transformed it into a qualifying "misdemeanor related to the use of drugs," then one could ensure his or her future eligibility simply by making a point to take drugs before engaging in misdemeanor conduct. In our view, it would be irrational to give the phrase "misdemeanor related to the use of drugs" an interpretation that had the effect of encouraging misdemeanor offenders to use drugs.
The issue of whether misdemeanor resisting arrest constitutes a "misdemeanor related to the use of drugs" is currently pending before the California Supreme Court in People v. Ayele (2002) 102 Cal.App.4th 1276, review granted January 15, 2003 (S111522).
Returning to defendants claim that the court misunderstood the scope of its discretion, we note that defendant was sentenced on May 8, 2001. Proposition 36 did not become effective until July 1, 2001. (Prop. 36, § 8.) Thus, even if one assumes the court had discretion to disregard the circumstances that rendered defendant ineligible, the court could not have applied Proposition 36 because it was not yet effective.
Defendant claims that to avoid a violation of equal protection, Proposition 36 must be deemed applicable to not only those convicted before the law became effective but also those convicted thereafter whose judgments are not yet final. Thus, he seeks remand because Proposition 36 is now effective and his judgment is not yet final. However, the California Supreme Court recently rejected this equal protection claim in People v. Floyd (2003) ___ Cal.4th ___ .
An equally fundamental flaw in defendants claim is its premise-i.e., that a trial court has discretion under section 1385 to disregard the facts that render a defendant ineligible under Proposition 36. Recently, in In re Varnell (2003) 30 Cal.4th 1132, the California Supreme Court rejected this notion. There, as here, the defendant was charged with possession of drugs, and it was further alleged that he suffered a prior strike conviction and served a prior prison term. Although his strike and prison term rendered him ineligible under Proposition 36, he urged the trial court to exercise discretion under section 1385 to make him eligible. The trial court dismissed the strike but concluded that the fact of his strike and resulting prison term still rendered him ineligible. However, in an opinion granting defendants petition for a writ of habeas corpus, the appellate court held that a trial court has discretion to disregard historical facts in determining whether the defendant was eligible. As noted, the California Supreme Court disagreed and reversed the appellate court. The Supreme Court held that "a trial courts power to dismiss an action under section 1385 extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation." (Id. at p. 1139.) This included historical facts concerning a defendants criminal history that render him or her ineligible under Proposition 36.
VI. Ineffective Assistance of Counsel
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsels performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, " but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. " [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal. Rptr. 732, 590 P.2d 859.)
A. Motion to Suppress
Defendant claims counsel was incompetent in not moving to suppress the evidence of the observations that led Hardie to conclude that defendant was under the influence of PCP and thus give him probable cause to arrest. Defendant argues that before Hardie made these observations, Hardie had unlawfully detained him. Thus, the observations and the subsequent arrest were tainted by Hardies unlawful police conduct.
The record here does not reveal the reason for counsels omission; nor does it show that the failure to do so was per se unreasonable.
For purposes of Fourth Amendment analysis, a detention is justified if police have a reasonable suspicion that the defendant is engaged in criminal conduct, and a detention occurs only if, in view of all the circumstances surrounding the police conduct, a reasonable person would have believed that he was not free to leave. (United States v. Place (1983) 462 U.S. 696, 702, 77 L. Ed. 2d 110, 103 S. Ct. 2637; People v. Hughes (2002) 27 Cal.4th 287, 328; In re James D. (1987) 43 Cal.3d 903, 911-912, 239 Cal. Rptr. 663, 741 P.2d 161; In re Tony C. (1978) 21 Cal.3d 888, 892.)
We glean the evidentiary basis for a potential pretrial motion from the preliminary hearing testimony. At that time, Hardie testified that when he arrived at the Ramsgate Street residence, defendant and a woman were in front of cars parked in the driveway. The woman was almost unable to walk. Hardie asked defendant a few times to come out into the open, but he did not do so. Hardie moved up the driveway and when he got to one side of a car, defendant moved to the other. Hardie testified that at that time, he suspected that defendant was under the influence because he ignored Hardies requests, he was starring at Hardie, his body had rigidity, and his movements were slow and deliberate. Hardie further testified that eventually, defendant jumped out from behind the cars and onto a lawn area. He continued to stare at Hardie and swayed back and forth. At that point, another officer came, and they told defendant to get down. The reason for this order was Hardies conclusion that defendant was under the influence and intended to take him into custody.
Given Hardies preliminary hearing testimony, counsel reasonably could have concluded that a motion based on a claim of unlawful detention would have been rejected. Indeed, the record does not suggest that defendant was unlawfully detained before Hardie entertained a reasonable suspicion that defendant was high on drugs. Although Hardie directed defendant to come out from behind the parked cars so he could see him and later ordered defendant to get down on the ground, defendant did not comply with either demand or otherwise act as if he were detained or thought he was not free to leave. Indeed, he evaded Hardie and eventually fled.
Hardies trial testimony does not change our analysis and conclusion because it would have made the motion even less likely to succeed because it demonstrates that his initial command for defendant to come into the open-a command defendant ignored-was reasonable under the circumstances: Hardie had been dispatched to the address to investigate a reported domestic disturbance; it was 3:00 in the morning; and defendant was in an obscured position in the driveway. Indeed, defendant concedes as much.
We reject defendants view that the detention occurred when Hardie issued his commands. A command is not a detention. Rather, for purposes of Fourth Amendment analysis, a seizure "requires either physical force . . . or, where that is absent, submission to the assertion of authority." (California v. Hodari D. (1991) 499 U.S. 621, 626, 113 L. Ed. 2d 690, 111 S. Ct. 1547, original italics; 623; Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 [a detention occurs "only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . ."]; e.g., People v. Glaser (1995) 11 Cal.4th 354, 361, 902 P.2d 729 [detention where defendant obeyed command to get on the ground].) Where, as here, one ignores a command, he or she has not been restrained.
"It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court." (People v. Mendoza (2000) 78 Cal.App.4th 918, 924; see, e.g., People v. Osband (1996) 13 Cal.4th 622, 678, 919 P.2d 640; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450.) Such is the case here. (Cf. People v. Milner (1988) 45 Cal.3d 227, 237-238, 246 Cal. Rptr. 713, 753 P.2d 669 [failure to renew motion to suppress].)
B. Objection to Strong
Defendant claims that counsel was incompetent because he failed to challenge the trial courts reliance on Strong, supra, 87 Cal.App.4th 328 at sentencing.
The record does not disclose why defense counsel failed to object, and, in light of our discussion of Strong above (ante, pp. 6-9), we believe counsel reasonably, and correctly, could have concluded that the trial court would reject a claim that Strong was wrongly decided.
VII. Cruel and Unusual Punishment
Defendant contends that his life term for possession of a small amount of methamphetamine violates the constitutional proscriptions against cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
A punishment is excessive under the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909.) A punishment may violate article I, section 17 of the California Constitution 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, 105 Cal. Rptr. 217, 503 P.2d 921, fn. omitted.)
In determining whether a particular punishment is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291, 77 L. Ed. 2d 637, 103 S. Ct. 3001; In re Lynch, supra, 8 Cal.3d at pp. 425-427; People v. Martinez (1999) 71 Cal.App.4th 1502, 1509-1510.)
A. Nature of Offense and Offender
Defendant claims his current crime does not warrant a life sentence because his possession of a miniscule amount of methamphetamine for personal use was harmless to others and "trivial," and at the time of arrest he was "cooperative" with police and nonviolent.
The record undermines defendant claim. Although in this particular instance defendant did not forcibly resist police officers, he did not cooperate with repeated requests by police to exit his vehicle and had to be pulled out of it. Moreover, when police first approached, defendant was under the influence of methamphetamine and PCP, sitting in the drivers seat holding the steering wheel of a vehicle parked in a neighborhood where he did not live. In the probation report, defendant admitted that before his arrest, he drank beer and smoked PCP. Thus, the circumstances reasonably indicate that defendant had been driving under the influence and well might have done so again but for his arrest. When viewed in this context, defendants current offense does not appear so harmless or "trivial." (Cf. People v. Martinez, supra, 71 Cal.App.4th at p. 1510 [rejecting similar possession committed while driving under the influence].)
Defendant denied that he was in the drivers seat.
In any event, the length of defendants sentence is not attributable solely to his conviction for simple possession. Under recidivist statutes, a new offense is deemed aggravated by the fact that it was committed by a repeat offender. (See Witte v. United States (1995) 515 U.S. 389, 400, 132 L. Ed. 2d 351, 115 S. Ct. 2199.) Thus, defendants sentence is based on his commission an aggravated form of possession: possession by a recidivist offender.
In this regard, defendant claims that although there may be criminals whose criminal history is so grave it justifies a life sentence for possession of drugs, his criminal background does not.
Focusing first on his strike offenses, defendant argues that their remoteness diminishes the gravity of his recidivism. We disagree.
Remoteness may be a mitigating factor if a prior conviction is followed by a significant period of blameless conduct. (See, e.g., People v. Humphrey, supra, 58 Cal.App.4th at p. 813 [decision to dismiss strike conviction]; People v. Gaston, supra, 74 Cal.App.4th at p. 321 [same].) Here, however, defendants strikes are simply the most serious offenses in continuous criminal career that started before the burglary and continued well after the assault.
Defendant argues that his strike offenses were merely "technical" violations of the law and not "exceptionally egregious." Concerning the burglary, he notes that there was no forced entry, and he was not violent. According to defendant, the burglary was further mitigated by the fact that he was only 21 years old at the time, he took one piece of video equipment, the residence was the home of his girlfriends relatives, which he had visited frequently, and he had recently been ordered to participate in treatment for his drug addiction. We are not persuaded.
Every residential burglary-including a so-called "technical burglary"-is considered a serious felony. ( § 1192.7, subd. (c)(18).) And although defendant did not enter by force-he climbed through a bedroom window-or use violence, residential burglary always involves a potential danger of violence if, upon entry, the intruder comes upon unsuspecting inhabitants, or if unsuspecting inhabitants come home to find an intruder. (See People v. Montoya (1994) 7 Cal.4th 1027, 1042, 1043, 874 P.2d 903 [burglary laws aimed at danger to others caused by entry and continued presence].) Finally, defendants age, his reaction to an order for drug treatment, his decision to burglarize a home into which he had previously been welcomed, and the fact he took only one item do not represent compelling mitigation, especially given the fact that defendant was on probation at the time of the burglary.
Defendant claims the assault was mitigated by the fact that it occurred "in the circumstances of a drinking brawl." Defendant also notes that he pleaded guilty but did not admit that he started the brawl.
The record refutes defendants sanitized view of the assault. The police reports of the incident and the probation report in this case reveal that defendant and the victim were drinking at the victims house. At one point, defendant became hostile and demanded that a woman inside come out and drive him home. When the victim blocked defendants entry, they started to argue, defendant pulled out a five-inch buck knife, and then stabbed the victim in the arm. He immediately fled, but police caught him a short time later with the knife on him. When arrested, defendant gave a false name. Moreover, the victim received eight stitches, lost the normal use of his arm for three weeks, and was unable to return to work. The record further reveals that defendant committed the offense only six months after being released on parole.
Defendant next focuses on his nonstrike felonies and misdemeanors and claims they do not reveal a dangerous career criminal but only a " scofflaw, " whose culpability is substantially mitigated by his long history of alcoholism and drug addiction. This argument is meritless.
In People v. Martinez, supra, 71 Cal.App.4th at p. 1511, this court rejected a similar request to view persistent drug addiction as a mitigating circumstances. We noted that " drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment. [Citation.]" (Accord, People v. Cuevas (2001) 89 Cal.App.4th 689, 704; People v. Downey (2000) 82 Cal.App.4th 899, 919; People v. Gaston, supra, 74 Cal.App.4th at p. 322.)
Here too, defendant has made little effort toward and shown no real commitment to drug rehabilitation. Indeed, defendant has been on probation, in prison, or on parole almost continuously for many years, but, as the trial court appropriately observed, he has gained no insight into his behavior and shown no ability to control his behavior.
Moreover, as discussed above, the record supports the trial courts finding that defendant represents a "continuous danger to the community." Defendant battered a peace officer in 1986 and did so again thirteen years later in this case. His prior convictions in 1984, 1986, 1987, and 1989 for driving under the influence and the circumstances of his arrest for possession in 2000 reflect conduct that poses a substantial danger to the health and safety of others. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 261-262, 198 Cal. Rptr. 145, 673 P.2d 732; People v. Schofield (2001) 90 Cal.App.4th 968, 973.)
Defendant has also used a knife on more than one occasion. In addition to his strike conviction for assault, the record reveals that in 1987, defendant refused to pay a cab fare, punched the driver, and brandished a knife. Defendant was later convicted of misdemeanors for theft and threatening with a weapon.
In sum, we reject defendants mitigated view of his current offense, his strikes, and his other criminal convictions. Our review of defendants offense and background convince us that his life sentence is not unconstitutionally disproportionate.
B. Intra-Jurisdictional Comparison
Defendant argues that because his life sentence is greater than or equal to that imposed for more serious offenses such as murder, kidnapping, and other violent crimes, its disproportionality is "self-evident."
However, a comparison between a repeat offender like defendant and a first time offender is inapposite. It is proper to punish repeat offenders more harshly than first time offenders. Indeed, in Rummel v. Estelle (1980) 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, the defendant was given a mandatory life sentence for stealing $ 120.75 and having prior convictions for fraud involving $ 80 worth of goods and of passing a forged check for $ 28.36. (Id. at p. 265.) In rejecting his claim that the sentence under a recidivist statute was grossly disproportionate to the severity of his current offense, a majority of the United States Supreme Court explained that the primary goals of a recidivist statute 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 persons 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. . . . 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.)
More recently, in Ewing v. California (2003) 155 L. Ed. 2d 108, 538 U.S. ___, , a plurality of the United States Supreme Court reaffirmed Rummell and rejected the defendants claim that the 25-year-to-life sentence for grand theft-he stole three golf clubs worth $ 399 apiece-constituted cruel and unusual punishment. There, in addition to the defendants current offense, he had prior misdemeanor and felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of drugs, trespass, and unlawful possession of a firearm. Although defendants criminal history, comprising five felonies and 27 misdemeanors and numerous probation and parole violations, may appear less serious than that in Ewing, the plurality opinion does not suggest that the facts before it were the minimum necessary justify a life sentence.
C. Inter-Jurisdictional Comparison
Defendant claims, in essence, that because his punishment is so much harsher than what he would receive under recidivist statutes in the vast majority of other states, the punishment is disproportionate and unconstitutional.
This court rejected the same claim in People v. Martinez, supra, 71 Cal.App.4th at p. 1516, and we do so again. Simply put, the fact that some other jurisdictions might impose a more lenient sentence does not convince use that Californias interest in incapacitating and deterring recidivist offenders does not justify imposing a life sentence for an offense committed by a recidivist offender like defendant.
In sum, having considered defendants sentence in light of the relevant considerations, we reject defendants claim that it is so disproportionate, shocking, and offensive to fundamental notions of human dignity.
Duran v. Castro (E.D. Cal. 2002) 227 F. Supp. 2d 1121, cited by defendant in post-briefing letter, does not alter our analysis and conclusion. First, decisions by federal trial courts are not binding on California Courts of Appeal. (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal. Rptr. 457, 460 P.2d 129.) More fundamentally, we disagree with Durans analytical approach in determining whether a sentence violates the Eighth Amendment.
D. Double Jeopardy
Defendant notes that if the court had simply imposed second sentences for each of his prior felony and misdemeanor convictions, in violation of the double jeopardy proscription against multiple punishment, his sentence would be shorter than the life term he received under the Three Strikes law. He argues that if such a lesser sentence violates the double jeopardy, then, out of respect for the intent and purpose of that constitutional provision, we must conclude that a greater sentence violates the constitutional proscription against cruel and unusual punishment. More succinctly, he argues, "What is expressly forbidden under one constitutional provision cannot be condoned under another."
As explained in North Carolina v. Pearce (1969) 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 "the Fifth Amendment guarantee against double jeopardy . . . consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." (Italics added, fns. omitted.)
Defendant provides no direct authority for his novel analysis. However, he finds it implicit in Solem v. Helm, supra, 463 U.S. 277, where the court stated that the focus concerning whether a sentence is excessive, must be on the current offense because the defendant "already has paid the penalty for each of his prior offenses." (Id. at p. 296, fn. 21.) However, the decision in Solem does not suggest that the Double Jeopardy Clause sets a quantitative constitutional limit on the length of a sentence imposed under a recidivist statute for a new offense. Moreover, we reject such a proposition.
As noted, a new offense is deemed aggravated by the fact that it was committed by a repeat offender. (See Witte v. United States (1995) 515 U.S. 389, 400, 132 L. Ed. 2d 351, 115 S. Ct. 2199.) For this reason, harsher sentences imposed under such statutes do not implicate the double jeopardy because such sentences are not considered a new jeopardy or additional penalty for prior crimes. (See Monge v. California (1998) 524 U.S. 721, 728, 141 L. Ed. 2d 615, 118 S. Ct. 2246.) The fact that the defendant has already served a term for a prior offense does not lessen the aggravated nature of the current offense.
Second, the link defendant tries to make between a violation of double jeopardy and a sentence that is cruel and unusual is at best rhetorical. A second punishment of any length violates the double jeopardy. Thus, the length of defendants hypothetical sentence in violation of double jeopardy is not particularly relevant in determining whether a sentence is too long. Moreover, in calculating that hypothetical sentence, defendant ignores the significance of his recidivism as an aggravating factor.
E. Punishment for Being a Recidivist Offender
Defendant notes that the maximum sentence for possession of methamphetamines is three years. (See Health & Saf. Code, § 11377, subd. (a); § 18.) Given his sentence of 25 years to life, defendant asserts that 22 years of it represent punishment for being a recidivist offender. Citing Robinson v. California (1962) 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417, he contends that punishing his status as a recidivist constitutes cruel and unusual punishment. This claim is meritless.
In Robinson, the United States Supreme Court invalidated a law that made being addicted to drugs a crime. According to the court, the law was flawed because it punished a persons status as a drug addict-i.e., his or her illness or disease-rather than the commission of a particular act that the state has a legitimate interest in preventing. (Robinson v. California, supra, 370 U.S. at pp. 666-667; see In re Foss (1974) 10 Cal.3d 910, 921, 112 Cal. Rptr. 649, 519 P.2d 1073.) We note, however, that ones status as an addict does not provide blanket immunity from prosecution and punishment. Rather, a person may be punished for conduct related to, motivated by, or resulting from his or her addiction, such as possessing, using, selling, and being under the influence of drugs or disorderly conduct. (Robinson v. California, supra, 370 U.S. at p. 664; see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1104-1105, 892 P.2d 1145; cf. Powell v. Texas (1968) 392 U.S. 514, 533, 20 L. Ed. 2d 1254, 88 S. Ct. 2145 [proper to punish public drunkenness even if conduct is involuntary or compulsive due to alcoholism]; Guevara v. Superior Court (1998) 62 Cal.App.4th 864, 871 [upholding statute proscribing unlawful sexual intercourse by person who is HIV positive because punishment directed at unlawful sexual conduct and not status of perpetrator as HIV carrier].)
Defendants claim has far reaching implications: It would render any enhanced punishment under a recidivist statute per se unconstitutional because part of it would punish the defendants status as a recidivist. We note, however, that notwithstanding Robinson, the United States Supreme Court has repeatedly upheld recidivist sentences and the policies behind recidivist statutes, most recently in Ewing v. California, supra, 538 U.S. ___ .
In any event, defendants claim is flawed because, in essence, he views his sentence as comprising a three-year base term for possession and a 22-year "enhancement" for being a recidivist. As noted, however, defendants entire sentence was for possession. Although the duration of defendants sentence is derived from his strikes, which aggravated his offense, the sentence itself is imposed for his current unlawful conduct. (See People v. DeSimone (1998) 62 Cal.App.4th 693, 700.)
VIII. Dual Use/Double Punishment
Citing Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 for the proposition that any fact which increases a penalty for a crime beyond the statutorily prescribed maximum is an element of the offense and as such must be submitted to the trier of fact and proved beyond a reasonable doubt, defendant claims the trial court made recidivism an element of felony possession when it relied on recidivism in declining to reduce possession to a misdemeanor. Defendant next notes that the court also used his recidivism to impose a Three Strike sentence that exceeds the prescribed three-year penalty for felony drug possession. Citing People v. Edwards (1976) 18 Cal.3d 796, 135 Cal. Rptr. 411, 557 P.2d 995, defendants claims that the dual use of his recidivism as an element of an offense and as a ground to aggravate it violate the double jeopardy protection against multiple punishment. We disagree.
Defendants reliance on Apprendi is misplaced. The prescribed punishment for possession is imprisonment in a county jail for a period of not more than one year or in the state prison for 16 months, or two or three years. (Health & Saf. Code, § 11377, subd. (a); § 18.) The courts decision not to reduce possession to a misdemeanor did not itself increase the punishment beyond the statutorily prescribed maximum. Moreover, defendants "recidivism" is merely shorthand for his history of prior convictions. In Apprendi the court held that any fact "other than the fact of a prior conviction" that increases the penalty for a crime beyond the prescribed statutory maximum is in essence an element and as such must be submitted to a jury, and proved beyond a reasonable doubt. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490, italics added.) Under the circumstances, therefore, we reject the initial premise of defendant claim-i.e., that his recidivism was an element of felony possession. (See Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154 [rejecting claim that because prior conviction is element, it must be proved at preliminary hearing].)
Defendant concedes that "technically" his prior convictions "qua prior convictions fell outside Apprendis precise holding." (Original italics.) However, he suggests that the exception for prior convictions is "incompatible with Apprendis superseding reasoning" and should be disregarded. We must disagree.
Defendants reliance on People v. Edwards, supra, 18 Cal.3d 796 is also misplaced. There, the court held that where a prior conviction is an element of a specific crime-there, being a ex-felon in possession of a firearm-the same conviction may not be used to increase the minimum sentence for the crime under a more general statute that provides increased minimum terms for persons who, among other things, have suffered previous or multiple convictions. (Id. at p. 800.)
First, we note that a violation of the rule in Edwards is not based on the Double Jeopardy Clause or any other constitutional principle. Rather, it was developed to effectuate legislative intent and does so via the canon of statutory interpretation that a specific statute governs over a more general statute. For example, where a general statute increases punishment for use of a deadly weapon or being an ex-felon and a specific statute punishes assault with a deadly weapon or possession of a firearm by an exfelon, courts find a legislative intent for the specific statute to control where use or possession are elements of the offense and for the general statute to apply where use or possession are merely additional circumstance of the offense. (In re Shull (1944) 23 Cal.2d 745, 750, 146 P.2d 417; People v. Tillman (1999) 73 Cal.App.4th 771, 781.)
There is some question concerning whether the Edwards rule survived the enactment of the determinate sentencing law. (People v. Baird (1995) 12 Cal.4th 126, 131, 906 P.2d 1220, and cases cited there.)
RUSHING, P.J., Concurring.
I concur in the result but write separately to express my views about People v. Strong (2001) 87 Cal.App.4th 328 (Strong). Specifically, I question Strongs use of the word "extraordinary" within its statement that "extraordinary must the circumstances be by which a career criminal can be deemed to fall outside the spirit of the very statutory scheme within which he squarely falls and whose continued criminal career the law was meant to attack." (Id. at pp. 331-332.)
I believe Strongs use of the term "extraordinary" does not accurately describe the test trial courts should use when deciding whether or not to strike a prior strike conviction. The California Supreme Court has never embraced the position that "extraordinary" circumstances must be present before a trial court may be justified in exercising its discretion under Penal Code section 1385, subdivision (a). Instead, the words used by the California Supreme Court, with which we are all familiar, are whether or not the defendant "may be deemed outside the schemes 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 (1998) 17 Cal.4th 148, 161, 948 P.2d 429.) Factors to be considered include "the nature and circumstances of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character and prospects. [Citation.]" (Id. at p. 161.) In People v. Garcia (1999) 20 Cal.4th 490, 976 P.2d 831, the California Supreme Court described the issue by stating that "a defendants sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. [Citation.]" (Id. at p. 500, italics added.)
Besides the fact that the California Supreme Court has never stated that "extraordinary" circumstances are a prerequisite for the trial courts decision to strike a prior conviction in furtherance of justice, examination of the meaning of the word "extraordinary" shows that its use in these situations adds an improper slant to the straightforward language articulated by the California Supreme Court. Websters Third New International Dictionary (1993) at page 807 defines "extraordinary" as (among other things): "exceptional to a very marked extent: most unusual: far from common . . . very outstanding . . . very remarkable . . . rarely equaled." (Italics added; see also San Bernardino Community v. Meeks (1986) 187 Cal. App. 3d 457, 463, fn. 1, 231 Cal. Rptr. 673.) By using the word "extraordinary," Strong inserts an extra obstacle into the equation, wrongly applies a label when none is authorized, and invents a category that is based upon an inaccurate premise. Under Strong, it could be that a trial court could see two different defendants in one week who happen to fall outside the spirit of the "Three Strikes" scheme; would that situation mean the trial court could exercise its discretion as to neither of them, because their situations could not be considered "extraordinary?" For these reasons, I believe Strongs use of the term "extraordinary" should be viewed as nothing more than a rhetorical flourish, rather than an accurate reflection of the boundaries of the trial courts discretion under section 1385, subdivision (a).
Moreover, even if the alleged dual use of defendants recidivism somehow constituted double punishment, double jeopardy does not categorically proscribe cumulative punishment under different statutes. Rather, in the "multi-punishment" context, double jeopardy precludes a court from imposing cumulative sentences for the same conduct only when the Legislature fails to specifically authorize such punishment. (See Jones v. Thomas (1989) 491 U.S. 376, 381, 105 L. Ed. 2d 322, 109 S. Ct. 2522; Missouri v. Hunter (1983) 459 U.S. 359, 366, 74 L. Ed. 2d 535, 103 S. Ct. 673.)
For example, in People v. Sipe (1995) 36 Cal.App.4th 468, the defendant pleaded guilty to escape while charged with a felony and admitted the underlying prior conviction for burglary, and the court sentenced him under the Three Strikes law. On appeal, the court rejected his claim because his prior conviction was an element of the escape, its additional use to impose a Three Strikes sentence was unconstitutional double punishment. (Id. at p. 488.) The court explained that even if the dual use of the prior conviction constituted cumulative punishment, it had legislative authorization and, therefore, was constitutionally permissible. (Id. at p. 489; cf. People v. Tillman, supra, 73 Cal.App.4th 771 [rejected challenge to dual use of prior conviction for sexual offense as element of crime of failing to register as sex offender and trigger for sentence under Three Strikes law].)
Last, we also reject defendants claim that the use of his prior convictions to impose a Three Strikes sentence constitutes a second punishment for those offenses. As noted above, defendants sentence is not additional punishment for old offenses but aggravated punishment for a new offense. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1520 ["Recidivist statutes do not impose a second punishment for the first offense in violation of the double jeopardy clause of the United States Constitution"].)
IX. Disposition
The judgment is affirmed.
I CONCUR: Elia, J.