Opinion
F062165
07-02-2012
THE PEOPLE, Plaintiff and Respondent, v. THOMAS EARL PUTNEY, Defendant and Appellant.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F10905950)
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Don D. Penner, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
On November 29, 2010, appellant Thomas Earl Putney was charged in a criminal complaint with possession of a dirk and dagger. (Former Pen. Code, § 12020, subd. (a).) The complaint further alleged three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). At his arraignment the following day, Putney pled not guilty to the charge and denied all allegations.
All undesignated statutory references are to the Penal Code.
On the date set for the preliminary hearing, December 17, 2010, Putney withdrew his not guilty plea and waived both his right to a preliminary hearing and his constitutional rights. He entered an unconditional no contest plea to the charge and admitted his three prior strikes. After Putney signed a change of plea form, the court accepted the plea, found it was made knowingly, intelligently and voluntarily and there was a factual basis for it. Defense counsel informed the court the change of plea was against his advice.
Putney was sentenced on January 21, 2011. The trial court denied defense counsel's Romero motion to strike two or all three of his prior strikes, and sentenced him to a term of 25 years to life. Putney filed a timely notice of appeal, but did not include a certificate of probable cause. This court subsequently granted his application for permission to seek a certificate of probable cause. Putney filed a request for a certificate with the trial court, which it granted.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
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On appeal, Putney contends (1) defense counsel was ineffective in failing to declare a doubt as to his competency, (2) the trial court abused its discretion in declining to grant his Romero motion, and (3) his sentence violates the prohibition against cruel and unusual punishment and the double jeopardy clause. We disagree and affirm.
FACTS
The following facts are derived from the probation officer's report. The incident occurred at Coalinga State Hospital, a secured maximum security forensic hospital that houses sexually violent predators, mentally disturbed offenders, and state prisoners with mental disorders. On November 19, 2010, hospital police officers observed four inmates engaged in suspicious behavior in the hallway. Officers heard several people yelling and a group of individuals exchanging punches with one another. One of those individuals, Putney's co-defendant, inmate Joseph Taylor, was seen holding a weapon. Taylor refused to drop the weapon when ordered to do so and continued running down the hallway chasing another inmate. Taylor approached an officer and lunged at him with the weapon, striking him in the center abdomen with what officers believed was a knife, and then continued to run down the hallway. Officers deployed pepper spray and eventually subdued Taylor, at which time he was found to be unarmed.
About 30 minutes later, another officer made contact with Putney. Although Putney initially denied having a weapon, officers searched Putney and found a homemade manufactured weapon six inches long on his person. The blade was flat, had a dark tint, and was sharpened on both ends. Putney told an officer he was just protecting his "homey," Taylor, and "I didn't use it, but would have."
According to the probation report, as a juvenile Putney had sustained petitions for arson (§ 452, subd. (b)), vehicle theft (Veh. Code, § 10851) and battery (§§ 242, 243, subd. (c)), and was committed to the California Youth Authority (CYA) in 1987. He was paroled from CYA in November 1988, and in March 1990, was discharged from CYA parole under dishonorable circumstances. One month later, he was arrested and convicted of a misdemeanor weapons charge (former § 12020, subd. (a)). This conviction was followed by a string of arrests and the following convictions: (1) possession of drug paraphernalia (Health & Saf. Code, § 11364) in July 1990; (2) fighting (§ 415) and misdemeanor weapons charge (former § 12020, subd. (a)), in August 1990; and (3) misdemeanor weapons charge (former § 12020, subd. (a)) in September 1990, for which he received two years probation.
Putney's three strike priors arose from offenses committed in 1990. Between June and August 1990, Putney forcibly raped and sodomized two young boys, ages four and nine. The nine-year-old boy suffered anal trauma and internal hemorrhoids as a result of Putney's forcible rape. The four-year-old, who suffered scarring on his anus, related that Putney threatened him, saying "he better not tell." In a psychological evaluation of Putney, performed by Dr. Ronald Byledbal, M.D. in February 1991, Putney was diagnosed as a pedophile. According to Dr. Byledbal, "the pedophilic oriented towards male victims has a higher recidivism and is more recalcitrant to treatment." In 1991, Putney was convicted of three counts of section 288, subdivision (a), and sentenced to 10 years in prison.
In 1992, while in prison, Putney was convicted of being a prisoner in possession of a weapon (§ 4502) and sentenced to an additional two years. In February 2003, Putney was found to be a sexually violent predator pursuant to Welfare and Institutions Code section 6600, and ordered to be confined for two years in a state hospital. From 2003 to the present offense, Putney has been under continual commitment at both Coalinga and Atascadero State Hospitals.
Putney told the probation officer that he was placed in foster care when he was nine years old after his grandmother physically abused him and he was left alone at home. Putney said his uncles sexually abused him when he was five and eight. Putney had a history of suicide attempts, beginning at age 12. He attempted suicide in 1991, and again while in prison in 1995 and 1999. Putney stated he had received different diagnoses ranging from bipolar to psychotic and schizophrenic disorders, and he had sometimes seen people and heard voices. At the time of the probation department report, Putney said he was not suicidal and was not receiving medication. In the past he had been off and on medication. He stopped taking medications three months before because he was getting extremely paranoid that the medication was hindering his thoughts and causing nerve damage.
When interviewed by the probation officer on December 29, 2010, Putney said he saw the fight; he did not see Taylor with a weapon and he did not give him one. Putney admitted having a knife himself and said it had been in his possession for over a year. He hid the knife in different places so he would not be caught with it. He claimed he needed a weapon for protection because he had been abused by staff, inmates and police officers over the years.
DISCUSSION
Ineffective Assistance of Counsel
Putney contends trial counsel rendered constitutionally ineffective assistance by failing to declare a doubt as to his competency and request a competency hearing. As the record contains no substantial evidence of incompetency and nothing to suggest a hearing would be favorable, his claim fails.
In order to successfully claim ineffective assistance of counsel, Putney must prove two components: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Putney cannot show deficient performance because there was insufficient evidence of incompetency to trigger counsel's obligation to declare a doubt. Indeed, "If an attorney has doubts about his client's competence but those doubts are not supported by medical reports or substantial evidence, he does not render ineffective assistance by forgoing an evidentiary hearing." (People v. Garcia (2008) 159 Cal.App.4th 163, 172 (Garcia), citing People v. Hill (1967) 67 Cal.2d 105.) "Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances." (People v. Freeman (1994) 8 Cal.4th 450, 509; see also People v. Weaver (2001) 26 Cal.4th 876, 931; People v. Frye (1998) 18 Cal.4th 894, 985, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 fn. 22.)
Putney asserts there was ample evidence of mental illness and questionable competence that required defense counsel to seek the advice of an expert to determine whether he was competent. But there is nothing on this record to suggest that Putney's competence was questionable. To establish incompetence, "[t]he evidence must indicate that defendant is incapable of comprehending the charges against him and of cooperating with counsel in his defense." (People v. Dudley (1978) 81 Cal.App.3d 866, 872.) In taking Putney's change of plea, the trial court asked Putney several times whether he understood the consequences of his plea; each time Putney responded that he did. In addition, the trial court specifically asked defense counsel if he was satisfied Putney understood the nature and terms of the plea and its consequences; defense counsel responded "I do, Your Honor." The court painstakingly questioned Putney on each of his constitutional rights to ensure he understood each right he was waiving; Putney answered each question directly and appropriately in the affirmative. Given Putney's responses, his background and history of mental illness do not support a finding of current incompetence. (People v. Hayes (1999) 21 Cal.4th 1211, 1281 ["Evidence regarding past events that does no more than form the basis for speculation regarding possible current incompetence is not sufficient."].)
The record also does not suggest that Putney was incapable of assisting counsel. Putney confirmed to the trial court before taking his change of plea that he had enough time to discuss the issue with his attorney, he understood his attorney adamantly disagreed with his decision, as well as the attorney's reasoning, but he did not agree with it "[f]or personal reasons." Defense counsel also confirmed that he had advised Putney numerous times about the consequences of the plea, which Putney would confirm if asked. At sentencing, defense counsel remarked that while talking with Putney, he found him to be "an intelligent individual." Nothing that occurred during the hearings in this matter suggests that Putney was incapable of comprehending the charges against him or of assisting defense counsel.
Moreover, Putney cannot establish the outcome would have been different if his trial counsel had declared a doubt as to his competency. "[Penal Code s]ection 1368 requires a competency hearing when the court declares a doubt as to competence. [Citation.] The court did not declare a doubt. A declaration of doubt by counsel alone is not sufficient to trigger a statutory right to a competency hearing. Section 1368 is written in terms of whether a doubt arises in the mind of the trial judge and is then confirmed by defense counsel. [Citation.] 'If . . . a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall . . . inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.' [Citation.] If, in response, 'counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing. [Citation.] 'A doubt in the mind of counsel, or anyone else other than the trial court is not sufficient to require a hearing on the issue of sanity under the statute.'" (Garcia, supra, 159 Cal.App.4th at pp. 169-170; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1111-1112 [judge not compelled to order competency hearing based on defense counsel's opinion the defendant might be incompetent; defendant's claim his trial counsel was ineffective for failing to request a competency hearing failed where record did not demonstrate a substantial doubt as to the defendant's competency].) Given the lack of substantial evidence of Putney's incompetence, there is no reasonable probability the outcome would have been different if counsel had declared a doubt as to his competence.
The Romero Motion
Putney contends the trial court abused its discretion when it denied his Romero motion. He argues he was outside the spirit of the three strikes law because the instant crime was a wobbler offense that did not involve sophistication, planning, violence or the infliction of harm, his prior convictions were remote, his record is devoid of any other serious or violent felonies before or after 1991, and he had a long term mental illness. We disagree.
The standard of review of the abuse of discretion aspect of the trial court's ruling is deferential. (People v. Carmony (2004) 33 Cal.4th 367, 371 (Carmony I); Romero, supra, 13 Cal.4th 497; § 1385.) Two fundamental precepts guide our review. First, the party challenging the sentence has the burden of clearly showing the sentencing decision was irrational or arbitrary. (Carmony I, at p. 376.) In the absence of the requisite showing, we will presume the court acted to achieve legitimate sentencing objectives and will allow the sentencing decision to stand. (Id. at pp. 376-377.) Second, we have no authority to substitute our judgment for that of the trial court, so we cannot reverse a sentencing decision merely because reasonable people might disagree. (Id. at p. 377.) "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." (Ibid.)
Since all discretionary authority is contextual, we look to the legal principles and policies germane to the trial court's ruling. (Carmony I, supra, 33 Cal.4th at p. 377.) The intent of the three strikes law was to restrict the discretion of the trial courts in sentencing repeat offenders. (Ibid.) The three strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but instead establishes a sentencing norm, carefully circumscribes the power of the trial courts to depart from the norm, requires an explicit justification of any ruling that departs from the norm, and creates a strong presumption that any sentence conforming to the norm is rational and proper. (Id. at pp. 377- 378.)
At the sentencing hearing, defense counsel orally moved to dismiss two or all three of the strike priors. Counsel argued this case was an appropriate one for relief because: (1) Putney's 1991 prior convictions were remote in time; (2) he had a history of mental illness, including bipolar and schizophrenic disorder; and (3) Putney was an intelligent individual who, if given a determinate sentence, could progress with treatment to the point of full rehabilitation, especially in light of the statement in the probation report that his recidivism rate was quite low. The prosecutor countered that Putney's 1991 convictions were for "horrific" crimes and while those crimes were older, Putney had been in custody continuously since then, this was not the first time he had a weapon while in custody, and he was a significant danger to the community and the type of individual for which the three strikes law was written.
The court denied the motion, stating: "The defendant in this case did say at the time that the knife was taken off of him, that while he hadn't used the knife he . . . indicated that he would have. He - as pointed out by the District Attorney, he has a prior conviction for a similar offense when he was serving his prison term on the strike allegations in 1992 - I believe that was at Folsom. I'm not sure - wherein he was convicted of possession of a weapon while serving that ten-year prison term. [¶] But by far the most important factor for the court is - are the facts as listed in the - or provided in the Probation report that summarizes the conduct behind those strike allegations and the convictions that he's admitted back in the 1990s. One victim in that case was a 9-year-old boy who suffered anal trauma and internal hemorrhoids as a result of the assault that he was a victim of at that time. The other victim was four years old. And the defendant threatened that four-year-old if he were to tell anyone about the crime that the defendant committed with respect to that particular victim. [¶] He has other criminal conduct and juvenile conduct that's set out in the probation report. And I do incorporate those statements by reference. [¶] But by far the most salient points for the court is the nature of the crimes - the nature of the strike allegations that he has admitted. I also know that from the probation report the defendant was abused as a child. Lost his father at the age of, I believe it was, six years old. He was in foster care from the age of 8 to approximately 18. He has also said he was sexually abused by his uncles at the age of five and eight. That there have been several suicide attempts. And he has been diagnosed with bipolar and schizophrenia and that he suffers from those mental diseases. [¶] On balance - and I also note that the strikes are 20 years old. But as pointed out again by the District Attorney Mr. Putney has been either in prison or restrained of his liberty at the Coalinga State Hospital since that time. And he has incurred another felony conviction after he was incarcerated on the strike cases and sentenced to state prison. [¶] Having all of those factors and consideration, I cannot say that this defendant is outside the spirit of the California Three Strikes law. And the invitation to exercise discretion under 1385 to strike any of those strikes is denied."
On appeal, Putney reiterates most of the arguments he made to the trial court, i.e. that his prior convictions are remote, his crime was not serious, he suffered from a long term mental illness, and it had been 19 years since his last offense. The trial court, however, rejected each of these contentions and found Putney's ongoing pattern of criminality confirms he still represents a danger to society. Since he fails to discharge his burden on appeal of clearly showing the sentencing decision was irrational or arbitrary, we will presume the court acted to achieve legitimate sentencing objectives and will allow the sentencing decision to stand.
Cruel and Unusual Punishment
We also reject Putney's claim that his 25-year-to-life sentence was constitutionally disproportionate. In determining whether punishment is constitutionally disproportionate, the courts examine the nature of the offense and offender, the punishment the same jurisdiction imposes for other offenses, and the punishment other jurisdictions impose for the same offense. (Solem v. Helm (1983) 463 U.S. 277, 290-291, overruled on another ground by Harmelin v. Michigan (1991) 501 U.S. 957, 964-965; In re Lynch (1972) 8 Cal.3d 410, 425-427.) A punishment involving "unnecessary and wanton infliction of pain" or "grossly out of proportion to the severity of the crime" violates the Eighth Amendment. (Gregg v. Georgia (1976) 428 U.S. 153, 173.) A punishment "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity" violates article I, section 17 of the California Constitution. (In re Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.)
California statutes imposing harsher punishment on recidivists have long withstood constitutional challenge. (See People v. Weaver (1984) 161 Cal.App.3d 119, 125-126, and cases cited.) Putney argues his possession of the knife in the present case was a wobbler offense which involved no violence or physical harm, and when considered in conjunction with his background, character, and prior offenses, it is clear that his 25-year-to-life sentence shocks the conscience and is grossly disproportionate. We disagree. 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." (Rummel v. Estelle (1980) 445 U.S. 263, 284-285.) Defining that point in one's life and setting that time are both "matters largely within the discretion of the punishing jurisdiction." (Id. at p. 285.) Putney's sentence constitutes neither cruel and unusual punishment under the federal Constitution nor cruel or unusual punishment under the state Constitution. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; see Ewing v. California (2003) 538 U.S. 11, 20-31; Lockyer v. Andrade (2003) 538 U.S. 63, 66-77; People v. Martinez (1999) 71 Cal.App.4th 1502, 1516-1517.)
Double Jeopardy
Putney contends his sentence violates the double jeopardy clause because his past offenses were the only significant factor which supported his 25-year-to-life sentence under the three strikes law. We disagree.
The double jeopardy clause does not prohibit the imposition of enhanced punishment under a recidivist statute. (Witte v. United States (1995) 515 U.S. 389, 400; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1520 (White Eagle).) "Recidivist statutes do not impose a second punishment for the first offense in violation of the double jeopardy clause of the United States Constitution. [Citation.] Moreover, the double jeopardy clause does not prohibit the imposition of multiple punishment for the same offense where the legislature has authorized multiple punishment." (White Eagle, supra, at p. 1520.)
In support of his double jeopardy objection, Putney cites People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II), in which the court stated: "Past offenses do not themselves justify imposition of an enhanced sentence for the current offense. [Citation.] The double jeopardy clause prohibits successive punishment for the same offense. [Citations.] The policy of the clause therefore circumscribes the relevance of recidivism. [Citations.] To the extent the 'punishment greatly exceeds that warranted by the aggravated offense, it begins to look very much as if the offender is actually being punished again for his prior offenses.'" (Id. at p. 1080.)
While the court in Carmony II loosely peppered its analysis with double jeopardy terminology, it decided the case on the grounds of cruel and unusual punishment (Carmony II, supra, 127 Cal.App.4th at p. 1089.) "'It is axiomatic that cases are not authority for propositions not considered.'" (Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1153.) Thus, Carmony II does not stand as authority for the proposition that a three strikes sentence may violate double jeopardy proscriptions. Moreover, the court in Carmony II recognized that recidivists could be punished more severely than first time offenders without violating the prohibition against double jeopardy. (Carmony II, supra, at p. 1079.)
Here, Putney was convicted of being in possession of a knife after sustaining previous convictions for committing lewd or lascivious acts (§ 288, subd. (a)) and being in possession of weapon while in prison (§ 4502). Thus, Putney continues to show that he is a recidivist, making the enhancement of his sentence under the three strikes law particularly appropriate. The imposition of Putney's current sentence, pursuant to the three strikes law, does not violate double jeopardy proscriptions.
DISPOSITION
The judgment is affirmed.