Opinion
B165102.
11-5-2003
THE PEOPLE, Plaintiff and Respondent, v. MARTIN BACA RAYA, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Brad D. Levenson and Xiomara Costello, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Martin Baca Raya appeals from his judgment of conviction. He was convicted by jury verdict of assault with a firearm, robbery (two counts), and felon in possession of a firearm. He raises a single issue on appeal: that his aggregate sentence is constitutionally excessive under the federal and California Constitutions. Since we do not find that it is excessive, we shall affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
No challenge is made to the sufficiency of evidence to support the convictions. The following summary is based on the record, read in the light most favorable to the judgment. (See People v. Lewis (1990) 50 Cal.3d 262, 266.)
Late in the afternoon of Saturday, December 20, 2001, appellant shopped at a Ralphs grocery market in Sunland, not far from where he was living. He unloaded groceries he had selected from a cart and placed them on the table for checking at the cash register. Unaccountably, he began banging the register with a closed fist while his purchases were being scanned by a checker. Ernesto Vera, the checker (and store manager), saw that appellant was buying a six-pack of beer and a bottle of wine. Besides appellants unusual conduct, his eyes were red, and it appeared to Vera that he had been drinking. Market management had issued instructions not to sell alcoholic beverages during the holiday season to customers who appeared to be intoxicated. (It was five days before Christmas.) Vera asked appellant, in English and in Spanish, if he had been drinking; appellant said that he had not been. Vera then asked why appellants eyes were red. Appellant replied that he was the devil. Appellant then extracted two bottles of beer from the six-pack container, opened one with the cap of the other, and proceeded to drink. (According to appellants account of the same event at trial, he opened one bottle with another, drank some beer, then said, "Now Im drinking.")
Appellant took the groceries that had not yet been scanned and placed them in the cart, where they joined the bagged groceries already there. Appellant then took the cart in hand and left the store without paying for the groceries. Vera and another employee, Patrick Yates, followed him outside. In the meantime, the bagger called 9-1-1 to summon police. Outside the store, Vera and Yates saw appellant heading out of the parking lot, pushing the store cart loaded with groceries. They ran after him to retrieve the groceries, Yates running in front of Vera. Yates caught up with appellant and tried to wrest the grocery cart away from him. He told appellant that he was taking the groceries back because appellant had not paid for them. The struggle lasted 15-25 seconds, ending when appellant stepped away from the cart. Appellant then reached with his left hand to the small of his back and pulled out a stainless steel or chrome semiautomatic pistol. He extended his arm, pointing the pistol directly at Yates, who was two and one-half to five feet away with only the cart between them. Appellant rudely ordered Yates to back off, which Yates did, being in fear of his life. Vera and Yates watched appellant push the cart across an intersection and down a street. Both Vera and Yates were in uniform as Ralphs employees and were wearing badges that identified them as such.
Police arrived when Vera and Yates returned to the store. They broadcast a bulletin of the robbery with a description of appellant. Two officers, searching the neighborhood in response to the broadcast, saw an empty shopping cart in an alley. They drove to the area, which was one-half to three-quarters of a mile from the market. Just then appellant bolted through a fence leading from the rear yard of a house into the alley. Seeing the officers, he started rambling, saying that he had been shooting rats. He led the officers to a garage in the yard from which he had emerged. Inside the open door, Officer Parker saw that the garage had been fitted out as a living quarters. The lights were on. The officer saw the Ralphs grocery cart full of groceries. An automatic pistol and the stock of a rifle were lying on top of a bed. Either that rifle or another on the bed had a fixed bayonet. Walking inside, the officer found a stainless steel .45 pistol, an SKS Russian rifle with two rounds in the magazine, an APO semiautomatic 9mm pistol, and nearly 20 rounds of assorted ammunition. The walls and ceiling were pock marked with bullet holes, and the walls had what appeared to be stab marks.
Appellant was arrested and charged with two counts of second degree robbery (Vera was the victim in Count 1 and Yates in Count 2), assault with a firearm (on Yates; Count 3), and felon in possession of a firearm. Three prior serious felonies were alleged in this Three Strikes case. Appellant was convicted on all counts and waived jury trial on the enhancements alleged against him, all of which were found true. His motion to strike some or all of the prior convictions alleged for sentencing purposes was denied. He was sentenced to an aggregate term of 45 years to life. (This was comprised of 25 years to life on Count 2 (robbery of Yates; Pen. Code, § 211), 10 years for use of a firearm in the robbery; Pen. Code, § 12022.53, subd. (b)), and 10 years for each of two prior prison terms. (Pen. Code, § 667, subd. (a).) He received the same sentence for Count 1 (robbery of Vera), with that term to run concurrent. The sentence for felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) also was concurrent. The sentence for the assault was stayed pursuant to Penal Code section 654.
He filed a timely notice of appeal.
DISCUSSION
As we have stated, the only ground asserted on appeal is that the punishment is excessive under the state and federal Constitutions. We are met at the outset with respondents argument that appellant should not be heard to raise this ground because he failed to assert it at trial. Appellant makes no reply.
Respondents argument is well taken. In his opening brief, appellant asserts that he raised the constitutional issues. But he did not. His brief, as well as his counsels statement to the trial court, argued only that some or all of the prior convictions alleged for sentencing purposes should be dismissed under Penal Code section 1385; neither the state or federal Constitution was mentioned. The closest appellant came to a constitutional argument was his general assertion that "Neither the instant offense, nor defendants history warrant the imposition of a sentence committing the defendant to state prison for 25 years to life" (sentencing memorandum), and that defense counsel believes "that this case even when considered with my clients past history does not warrant a life sentence." (Argument at sentencing hearing.)
Nevertheless, in order to forestall a later claim of inadequate representation by trial counsel we shall consider the merits of appellants appellate argument. (See People v. Mattson (1990) 50 Cal.3d 826, 854.)
Appellant concedes that the recent decision of the United States Supreme Court in Ewing v. California (2003) 538 U.S. 11 forecloses his Eighth Amendment claim. He is quite correct in this, for the reasons stated in that case. Appellant also presses a claim under article I, section 17 of the California Constitution, which precludes "cruel or unusual punishments." California courts review cruel or unusual punishment claims under the three-part analysis announced in In re Lynch (1972) 8 Cal.3d 410: comparison of the nature of the offense and the offender; comparison of the penalty imposed with punishment for other, more serious crimes in the same jurisdiction; and comparison of the punishment imposed with punishment for the same offense in other jurisdictions. (Id. at pp. 426-427.)
Each of the Lynch factors requires consideration of the punishment imposed in light of appellants recidivism, since it is appellants criminal history that led to his being sentenced as a three-striker, resulting in a 25-year-to-life base term, and a 10-year enhancement for two prior serious felony convictions. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
We have examined that history. It does appellant no credit. The sentencing materials show the following, in summary: conviction of two counts of kidnap/robbery in 1984 (the crimes were committed when appellant was 17 years of age; he was tried as an adult), for which he received a three-year state prison sentence; conviction of possession of a controlled substance in 1988, for which he received a two-year prison sentence; conviction of home invasion robbery committed in 1989, for which he received an eight-year prison sentence. In the 16 1/3 years between the first of these crimes and the last (the present crimes), appellant was incarcerated 13 2/3 years for these crimes alone (there were others), and was at liberty no more than 1 1/2 years, part of which was while on parole. We are informed that he was on probation when he committed the present offenses.
In briefing, defense counsel argues that appellant never harmed anyone. This is not true; the sentencing materials indicate that he beat a victim of the 1984 kidnap/robbery into unconsciousness. In this case, he deliberately exited a grocery store without paying for merchandise in his possession (he testified that he did pay, but, obviously, that evidence was discredited by the jury). He then refused to relinquish the groceries he had taken when return was demanded by a uniformed store employee. He next pulled a pistol and aimed it point blank at the employee. The lethal danger presented by that kind of confrontation is painfully obvious. At his residence a small armory was discovered, which appellant possessed in defiance of the law against possession of a firearm by a felon such as himself.
Defense counsel argues that appellant has a substance abuse problem, and had been drinking when the crimes in this case were committed. He probably had been drinking, but he obviously was in control of what he did, acts which included arming himself before going to the store, then using the firearm to complete his theft. (We note that trial counsel obtained an order for appointment of a physician for appellant, but nothing more appears in the record with respect to that.)
With respect to comparison of appellants crimes with other more serious crimes, appellant points out that first degree murder carries a term of 25 years-to-life, which is less than the aggregate 45 years-to-life sentence he received. (Pen. Code, § 190, subd. (a).) The statement is true as far as it goes (as are similar arguments made about rapists and child molesters), but it ignores the effect of recidivist punishment and the enhanced term for use of a firearm, each of which is applicable to murderers as well as armed robbers.
Appellant also relies on People v. Dillon (1983) 34 Cal.3d 441, a case in which the Supreme Court directed reduction of a murder conviction to voluntary manslaughter. The comparison does not help him. In contrast to appellant, the 17-year-old minor in Dillon had no criminal record and, as viewed by a majority of the court, had acted impetuously and in panic in shooting a marijuana farmer. (See People v. Young (1992) 11 Cal.App.4th 1299, 1310.) (We also note that, while Dillon often is cited in criminal cases, there is only a single decision certified for publication of which we are aware that has followed the Dillon holding in reducing a punishment, and that case was ordered decertified by the Supreme Court.)
Appellant offers no argument with respect to the third Lynch factor, calling for comparison of the punishment imposed here with that for defendants convicted of the same crime (and with the same enhancements) in other jurisdictions. We have no basis to conclude that the comparison would demonstrate the punishment here to be constitutionally excessive. Even if a comparison yielded some disparity, the California Constitution does not require that, in prescribing punishment, the Legislature conform to the majority rule or least common denominator of penalties nationwide. (People v. Wingo (1975) 14 Cal.3d 169, 179.) "Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct." (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
Finally, we observe that the circumstances of the crime, which we have described, and particularly appellants serious history of crime and repeated failure to reform, indicate that he is well within the "spirit" of the Three Strikes law. (See People v. Williams (1998) 17 Cal.4th 148, 160.) He is, in fact, the "kind of revolving-door career criminal for whom the Three Strikes law was devised." (People v. Gaston (1999) 74 Cal.App.4th 310, 320; People v. Strong (2001) 87 Cal.App.4th 328, 336.) It therefore is understandable why present appellate counsel did not reprise appellants argument at trial about application of Penal Code section 1385.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (C.S.), P.J., and CURRY, J.