Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge., Super. Ct. No. MCR021898.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. Lebel, Deputy Attorneys General for Plaintiff and Respondent.
Kane, J.
Defendant Michael Thomas Scott, a truck driver, was convicted of grand theft and vehicle theft after he failed to deliver a load of goods and disappeared with his employer’s truck. Pursuant to the “Three Strikes” law, he was sentenced to 25 years to life. On appeal, he contends (1) the trial court abused its discretion by denying his Romero motion to dismiss his prior convictions, (2) his 25-year-to-life sentence is cruel and/or unusual punishment, and (3) the trial court failed to hold the required hearing to determine whether defendant had the ability to pay a $250 presentence report fee, and the court’s implied finding that he had the ability to pay the fee was not supported by substantial evidence. Finding no merit in defendant’s contentions, we will affirm the judgment.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
PROCEDURAL SUMMARY
On February 2, 2006, the Madera County District Attorney charged defendant with the unlawful taking of a motor vehicle (Veh. Code, § 10851, subd. (a); count 1) and grand theft (Pen. Code, § 487, subd. (a); count 2). As to count 1, it was further alleged that defendant suffered a prior conviction for vehicle theft within the meaning of section 666.5. In addition, the information alleged that defendant suffered seven prior serious and/or violent felonies within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). A jury convicted defendant of both counts. The trial court found true the special allegations and sentenced defendant to 25 years to life in prison on counts 1 and 2, and stayed the sentence on count 2.
All statutory references are to the Penal Code unless otherwise noted.
FACTS
Defendant was employed by Destiny Transportation (the trucking company) in Phoenix, Arizona. On May 24, 2005, defendant picked up a load of goods from Safeway stores in Tempe, Arizona, and on May 27, 2005, delivered it to Safeway stores in Tracy, California. The same day, he picked up a load of goods in Tracy that he was supposed to deliver back in Tempe, but he did not arrive or contact the trucking company.
On June 3, 2005, five days after defendant’s expected delivery date, California Highway Patrol (CHP) Officer Baker was eating breakfast at the Pilot Truck Stop in Madera County. He received notification about the missing truck and while he was searching the area, the truck drove into the truck stop. Defendant waved at the officer through the open window and indicated he wanted to speak with him. Unbeknownst to the officer, defendant had contacted the trucking company and had been told to take the truck to the truck stop and turn it over. After checking defendant’s identification, the officer detained him.
Defendant told the officer he had arrived at the truck stop about five days earlier. He met a woman with whom he was going to have a liaison in the truck. At her request, he first went to the store above the truck stop and bought her some cigarettes. When he returned, the truck was gone. He believed the woman had been part of a scheme to steal the truck from the start. He said he did not report the stolen truck because he distrusted the police and did not believe they could find the truck any better than he could. The officer arrested defendant, inspected the truck and discovered it was almost empty. A trucking company representative picked up the truck and confirmed that almost all of the $38,000 load was missing.
Later that day, a CHP investigator contacted defendant in jail. Defendant told him he sold the load of goods for about $300 plus one and one-half ounces of cocaine. Defendant explained he had gotten involved with two people, Omar and Bill, who handled stolen merchandise and would kill him. The investigator believed defendant had given up the load of goods. The investigator did not find defendant’s story credible.
Defense Evidence
Defendant testified on his own behalf. He stated that this delivery was his first assignment for the trucking company. After he received his load in Sacramento, he headed back to Phoenix on Highway 99. He was tired so he stopped at the Pilot Truck Stop on a Friday evening. He shut down the truck and went to sleep. The next morning he ate breakfast and showered. He met a woman named “Cookie.” She had a backpack and she asked him if he was traveling south. Defendant gave her a ride to Fresno. En route, she changed her clothes in his sleeper compartment. In Fresno, defendant took her to a motel room and met her two friends, a woman and a man named “Breaker B.” Defendant smelled cocaine and became worried because he had tried to avoid that drug for about one year. Defendant and Cookie walked to Kentucky Fried Chicken and returned with some chicken. The others offered defendant cocaine and he agreed to buy some for $40. As the motel checkout time approached, they all decided to take Breaker B.’s pickup truck to the home of a man named “Peppy.” At Peppy’s house, defendant bought more cocaine. They all partied until Monday, at which point defendant had run out of money. His cohorts began acting less friendly because he was broke. They asked him if he could get more cash.
Later that day, a man named Elijah arrived. He and Breaker B. went into the back room and spoke. When they came out, Breaker B. asked defendant if he had access to cash. Because defendant was craving more cocaine, he told them he probably could get more money. Elijah then gave defendant $60 worth of cocaine, with the understanding that he would owe $120 for it. After defendant finished smoking the cocaine, Elijah asked him if he needed more cocaine. Defendant accepted more on credit until he owed Elijah $300.
On Tuesday morning, Elijah returned to Peppy’s house. Elijah and Breaker B. talked, then Elijah asked defendant why he had made no effort to pay him. Defendant said it was going to take time. At that point, Elijah hit defendant on the side of his face and said, “I ought to beat your ass for lying to me. You can’t get no money.” Elijah’s nephew was also present and defendant noticed he had a sawed-off shotgun. Defendant became frightened and he claimed he could get the money. The other men talked for about 15 minutes, then came back and asked defendant for his truck keys. Defendant was reluctant but he relinquished the keys. They all drove to the truck. Defendant, accompanied by Elijah’s nephew and his gun, got in the truck and drove it to another location in Fresno. When defendant parked the truck and got out, Elijah made him get in the back seat of the car and wait about an hour. At that time, Elijah’s father arrived and inspected the truck’s load. He asked for the truck’s manifest and defendant provided it. After about 15 minutes, the men locked the truck, got in the car and drove back to Peppy’s house. They gave defendant more cocaine and he stayed the night.
The next morning, defendant was getting nervous. Elijah came to Peppy’s house and they got into the car and returned to the truck. When they came back to the house, Elijah’s father asked him when the load of goods was supposed to have been delivered and if he thought the trucking company had reported it stolen. Defendant told him it was expected on Monday and it probably had been reported. Elijah’s father told defendant he wanted some of the load because defendant owed Elijah money and Elijah owed his father money. Defendant told him he could have the whole load because he was afraid the men might harm or kill him due to the money he owed. He thought turning over the entire load would satisfy the debt and save his life.
Defendant drove the truck into the country, surrounded by cars driven by Elijah and the others. They arrived at a house and a rental truck drove up. Elijah’s nephew still had the shotgun and two other men also carried guns. The men backed the rental truck up to the truck and transferred part of the truck’s load to the rental truck. At this point, defendant was no longer fearful because he felt the focus had shifted from him to his truck’s load of goods. He got back into the truck and they drove to a truck stop and parked the truck. He got in a car and was returned to Peppy’s house. Defendant still did not have the keys to his truck.
Defendant was unsure what to do so he called Elijah’s father, who made him wait several hours before meeting him and taking him to his truck. Elijah’s father gave defendant his keys, cell phone and company radio, and told him, “whatever [you] do[, you] better get the hell out of Fresno and don’t come back.” Defendant went to Klein’s Truck Stop, ate some of the remaining goods in the truck and slept overnight. The next morning he called the trucking company and said the load of goods had been stolen. The trucking company instructed him to take the truck to the Pilot Truck Stop, about 15 minutes away, and meet a CHP officer there. When defendant arrived, he saw the officer and flagged him down. Defendant was afraid to tell the officer the truth, so he made up a story. The story defendant later told the CHP investigator was also untrue. Defendant did not know if he could trust the police to look for the people who really stole the load of goods. Defendant testified that at the time of trial he was still afraid of Elijah and the others. He never intended to sell the load of goods or to trade it for drugs. He had been free of drugs for a year and he simply could not help himself when the temptation arose.
DISCUSSION
I. Denial of Romero Motion
Defendant contends the trial court abused its discretion by refusing to dismiss his prior felony conviction allegations because the court “did not fully understand the scope of its discretion.”
The Three Strikes law “‘was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.) “‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (Ibid.) “Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so.” (Id. at p. 378.)
If the trial court decides to depart from this sentencing norm, the court may dismiss a prior felony conviction allegation. (§ 1385; Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) But, because the Three Strikes law creates a strong presumption that any sentence conforming to its sentencing norm is both rational and proper, only in limited circumstances will a trial court abuse its discretion by deciding not to dismiss a prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 378.)
A defendant has the right to seek review of a trial court’s decision not to dismiss a prior conviction. (People v. Carmony, supra, 33 Cal.4th at p. 376.) The trial court’s decision is reviewed under the abuse of discretion standard, and the burden is on defendant to show that the court’s decision was “‘“irrational or arbitrary.”’” (Ibid.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) “For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (Id. at p. 378, italics added.) “‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.”’” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Here, at the sentencing hearing, the trial court stated the following:
“[Defendant], on a personal level, in custody and sober is a very pleasant person and he’s always been very respectful of the Court. But the facts are that this crime involved the actual taking or damage of great monetary value. The loss was $40,000. The defendant abused his position as an employee of Destiny Trucking to acquire that property. When he came in contact with law enforcement he told conflicting stories about what had occurred in the case.
“In terms of his prior record, in 1983 he did in fact carry out a series of muggings with his co-defendant throughout San Francisco over a week-long period of time in the spring of 1983. There were five separate victims of those robberies. [¶] In 1991 he committed a robbery with a handgun of an airport shuttle van. There were two victims in that case, one of which the D.A. terms was elderly…. He … went to prison and then received several violations of parole. [¶] He has been addicted to drugs his entire life. He’s been unable to overcome that addiction. His addiction to cocaine was part and parcel of this crime.
“Based on those facts, [defendant], the Court must follow the Three Strikes Law. The Court does not find that you are outside that Three Strikes Law. The request to strike six of his seven prior strike convictions is denied.” (Italics added.)
Relying on the italicized phrase above, defendant argues the trial court believed it had no discretion to grant defendant’s Romero motion. We cannot agree with defendant’s reading of this passage. The trial court clearly was considering and weighing various factors to determine whether defendant fell outside the spirit of the Three Strikes law and the court concluded he did not, as the court’s next statement reflects. In other words, the court was exercising its discretion. The court’s use of the auxiliary “must” simply reflects the court’s feeling that, in light of all the facts, it could not justify departing from the sentencing norm of the Three Strikes law and was compelled to impose sentence according to that law. Nowhere in this record do we find a suggestion that the trial court believed it had no discretion to dismiss defendant’s prior conviction allegations. Furthermore, the trial court’s decision not to dismiss the priors did not exceed the bounds of reason or rationality and thus was not an abuse of discretion.
II. Cruel and/or Unusual Punishment
Defendant contends his prison sentence of 25 years to life constitutes cruel and/or unusual punishment under the state and federal Constitutions (Cal. Const., art. I, § 17; U.S. Const., 8th Amend.), particularly because he is a 54-year-old diabetic who is incapable of working.
A. California Standard
A sentence is unconstitutional according to California law 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.) In order to challenge a sentence as cruel and unusual the defendant has a considerable burden to overcome. (People v. Wingo (1975) 14 Cal.3d 169, 174.) The doctrine of separation of powers is firmly settled in the law of California, and the determination of sentencing is a legislative function. (Ibid.) The validity of enactments will not be questioned “‘unless their unconstitutionality clearly, positively, and unmistakably appears.’” (Ibid.)
To determine whether a sentence is disproportionate, courts should (1) consider the nature of the offense and the offender, (2) compare the punishment with punishments imposed for more serious crimes in California, and (3) compare the punishment with punishment imposed for the same crime in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.) Applying these factors, we conclude defendant’s punishment is not cruel or unusual under California law because it is not disproportionate to his crimes.
1. Nature of the Offense and the Offender
Defendant argues his “current crime was a non-violent unsophisticated theft offense and [he] made an effort to mitigate the harm from it.” He maintains that his age, drug addiction and poor health render the 25-year-to-life sentence unconstitutional.
Under this factor, we evaluate the totality of the circumstances, including defendant’s motive, involvement, the manner of commission of the crimes, the consequences of his acts, and his individual characteristics such as age, prior criminality, and state of mind. (People v. Lucero (2000)23 Cal.4th 692, 739.)
Here, defendant’s substantial criminal background makes him “precisely the type of offender from whom society seeks protection by the use of recidivist statutes.” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1415, overruled on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn.8.) Defendant has engaged in criminal activity for approximately 12 years and he had suffered nine felony convictions before committing the current crimes. In 1983, he served a prison term for several counts of robbery. In 1988, he was granted probation for a drug-related felony. In 1992, he served a prison term for armed robbery, after which he violated parole and was returned to prison four times during the course of only 16 months. “There is no indication defendant desires to reform or to change his criminal behavior.” (People v. Ingram, supra, at p. 1415.) “Fundamental notions of human dignity are not offended by the prospect of exiling from society those individuals who have proved themselves to be threats to the public safety and security.” (Id. at p. 1416.)
Although defendant’s crimes may have been motivated by his substance abuse, his drug problem does not suggest his criminal propensity is less of a threat to society. On the contrary, substance abuse can provide a powerful criminal compulsion. “Quite apart from the pernicious effects on the individual who consumes illegal drugs, such drugs relate to crime in at least three ways: (1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture. [Citation.]” (Harmelin v. Michigan (1991) 501 U.S. 957, 1002-1003.) Defendant’s substance abuse problem does not justify his criminal proclivity and commission of serious felonies; moreover, it does not make his sentence disproportionate.
As defendant acknowledges, 25-year-to-life Three Strikes sentences have been upheld in similar nonviolent theft cases. (See, e.g., Ewing v. California (2003) 538 U.S. 11, 30-31 [theft of $1,200 worth of golf clubs]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [theft of $150 worth of video tapes]; People v. Romero (2002) 99 Cal.App.4th 1418, 1424, 1433 [magazine theft].) Defendant cites People v. Carmony (2005) 127 Cal.App.4th 1066 [Three Strikes sentence for failure to update sex offender registration held disproportionate], but defendant’s case is distinguishable because defendant did not passively violate a regulatory provision.
In light of the nature of the offense and the offender, defendant’s sentence does not shock the conscience or offend human dignity.
2. Punishment for More Serious Crimes in California
Defendant contends his sentence is disproportionate because only first degree murderers would receive a harsher sentence and because his sentence is substantially longer than sentences imposed for more significant crimes, such as second degree murder and voluntary manslaughter.
First, for purposes of determining the proportionality of defendant’s sentence, we do not compare his sentence to the sentence imposed on a first-time offender. “[I]t is proper to punish a repeat offender more severely than a first-time offender. The proper comparison would be to a recidivist killer, whose punishment would be the same as defendant’s.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) Second, defendant’s punishment is based on his status as a third strike offender. “[T]he three strikes law punishes not only his current offenses, but also his recidivism. California statutes imposing more severe punishment on habitual criminals have long withstood constitutional challenge.” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.)
3. Punishment for Similar Offenses in Other Jurisdictions
Defendant argues his sentence is unconstitutional because most other jurisdictions apply recidivist laws more leniently. California’s Three Strikes law, however, is consistent with the national trend of applying increased sentences to repeat offenders. (People v. Ingram, supra, 40 Cal.App.4th at p. 1416.) While California’s punishment scheme is among the most extreme, this does not mean it is unconstitutional. (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) “This state[’s] constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code.” (Ibid.) “It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons ‘advance[s] the goals of [its] criminal justice system in any substantial way.’” (Ewing v. California, supra, 538 U.S. at p. 28.)
B. Federal Standard
Defendant also contends his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The United States Supreme Court has held that a sentence violates the Eighth Amendment proscription against cruel and unusual punishment if a sentence is grossly disproportionate. (Lockyer v. Andrade, supra, 538 U.S. at p. 71.) Only an extraordinary case will constitute a constitutional violation. (Id. at p. 77.) In considering a federal constitutional challenge, the steps of the analysis are virtually identical to those applied by California courts under the state Constitution (People v. Ayon (1996) 46 Cal.App.4th 385, 396, overruled on another ground in People v. Deloza (1998) 18 Cal.4th 585, 593-595), and “the federal Constitution affords no greater protection than the state Constitution” (People v. Martinez, supra, 71 Cal.App.4th at p. 1510). Our review of United States Supreme Court jurisprudence on this subject reveals no violation of the federal prohibition against cruel or unusual punishment. (See Lockyer v. Andrade, supra, 538 U.S. at pp. 76-77; Ewing v. California, supra, 538 U.S. at pp. 30-31; Rummel v. Estelle (1980) 445 U.S. 263, 266 [life sentence under Texas recidivist statute for obtaining $120.75 by false pretenses after previous convictions for credit card fraud and passing a forged check did not violate federal Constitution].)
III. Ability to Pay Presentence Report Fee
Defendant lastly contends the $250 presentence report fee was unlawfully imposed because the trial court failed to conduct a hearing to determine whether defendant had the ability to pay the fee and failed to take a knowing and intelligent waiver of that hearing. He further argues the court’s implied finding that he had the ability to pay was not supported by substantial evidence. The People counter that defendant has forfeited this issue and that the record nevertheless reflects substantial evidence of his ability to pay.
Section 1203.1b provides that in any case in which a presentence report is prepared, the court “shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost” of preparing the report. (§ 1203.1b, subd. (a).) In addition, the probation officer “shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (Ibid.)
Section 1203.1b further provides that if the defendant fails to waive the right to a court determination of his ability to pay, “the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs ....” (§ 1203.1b, subd. (b).)
In this case, the trial court ordered defendant to pay the $250 cost of the presentence report pursuant to section 1203.1b, as recommended in the probation officer’s report. Apparently, the court did not make an express finding that defendant had the ability to pay this amount, and did not hold a hearing to determine his ability to pay. Defendant, however, had notice that the probation department recommended imposition of the presentence report fee in the amount of $250. Nevertheless, he did not object to the fee, nor did he ask for a court determination of his ability to pay or a hearing on the issue. His failure to object to the fee or the lack of a hearing forfeited his procedural challenge on appeal. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072, 1076 (Valtakis).)
The California Supreme Court has established, in a long line of cases beginning with People v. Walker (1991) 54 Cal.3d 1013 and continuing through People v. Welch (1993) 5 Cal.4th 228, People v. Scott (1994) 9 Cal.4th 331 and People v. Gonzalez (2003) 31 Cal.4th 745, that nonjurisdictional sentencing issues not raised in the trial court are forfeited on appeal. In Valtakis, the court held that this rule applies to assessments imposed pursuant to section 1203.1b. The court concluded that the statutory requirement of a knowing and intelligent waiver of the defendant’s right to a hearing applies only in the trial court and does not affect the normal rule that failure to object forfeits appellate review. (Valtakis, supra, 105 Cal.App.4th at pp. 1071-1072, 1076.)
We need not decide whether defendant’s challenge to the sufficiency of the evidence supporting his ability to pay was similarly forfeited (see, e.g., People v. Stowell (2003) 31 Cal.4th 1107; People v. Butler (2003) 31 Cal.4th 1119; People v. Lopez (2005) 129 Cal.App.4th 1508) because, even assuming the claim is properly before us, we see no merit in it. Despite defendant’s assertions that he is too old and too sick to work, he was employed at the time he committed the crime. It is therefore unclear why he believes he will not be capable of working while in prison. Furthermore, the record shows that defendant’s wife received $500 per month in Social Security Income. Moreover, as in People v. Staley (1992) 10 Cal.App.4th 782, “[t]he trial court had an opportunity to observe defendant, and we presume the court discerned no such disabling characteristics. If there were any such latent impediments, defendant would be in the best position to know of and develop that information. Since he failed to object to imposition of the … fee or to request a hearing on his ability to pay, we assume there are no such impediments.... [¶] [T]he record supports an implied determination of ability to pay.” (Id. at p. 786.) Accordingly, we reject defendant’s claim that the record contains insufficient evidence to support such a finding.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Hill, J.
Imposition of the assessment in the absence of a hearing or a waiver does not result in a sentence that is unauthorized and therefore in excess of the court's jurisdiction. A sentence is unauthorized only if it could not lawfully be imposed under any circumstance in the particular case. Such an error is reviewable on appeal in the first instance only because it is independent of any factual issues presented by the record at sentencing. (People v. Scott, supra, 9 Cal.4th at p. 354.) In Valtakis, as in the present case, the assessment could have been lawfully imposed if the defendant had waived his right to a determination of ability to pay or if the court had held a hearing to make that determination. Thus, the error in imposing the assessment was procedural only and did not result in an unauthorized sentence. (Valtakis, supra, 105 Cal.App.4th at p. 1072.) It is therefore the kind of sentencing error to which the forfeiture rule applies. (Ibid.; People v. Scott, supra, at pp. 351, 356.)