Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN228428, Aaron H. Katz, Judge.
BENKE, Acting P. J.
Defendant Eugene E. Summers pleaded guilty to a robbery in violation of Penal Code section 211. He also admitted two serious felony prior convictions within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7, subdivision (c), and two felony "strike" convictions within the meaning of sections 667, subdivisions (b) through (i), 668, and 1170.12.
All section references are to the Penal Code.
At sentencing, the trial court denied Summers's Romero motion to dismiss/strike one or both of his prior felony convictions under section 1385, and sentenced him under the "Three Strikes" law to 35 years to life in state prison. On appeal, Summers argues the court abused its discretion in refusing to strike at least one of his two strike priors. He further argues his sentence of 35 years to life constitutes cruel and unusual punishment under the federal and California Constitutions. We disagree and affirm.
People v. Superior Court (1996) 13 Cal.4th 497 (Romero).
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of April 30, 2007, Summers walked into the California Community Bank located in Escondido, California, and handed a note to a bank teller stating, "I have a gun! 100s, 50s, 20s, I will shoot." Fearing for her safety, the bank teller placed money from her till on the counter. Summers took the cash and left the bank. As he was leaving, the bank teller activated the bank's alarm system. Another bank employee saw, through a bank window, Summers get in a Cadillac Deville and exit the parking lot. A 911 call was made.
Bank employee Mark Anderson arrived to work shortly after the robbery and was alerted of the situation via his cell phone. Anderson located the suspect's vehicle and began following it, relaying the information to Escondido police who apprehended Summers at gunpoint a short time later. Police found in Summers's vehicle the demand note, $2,860 taken during the robbery, three syringes, a plastic bindle containing .10 grams of heroin and clothes he wore during the robbery. After waiving his Miranda rights, Summers confessed to the crime and was taken into custody without incident.
Miranda v. Arizona (1966) 384 U.S. 436.
A complaint filed on May 2, 2007, charged Summers with one count of robbery under section 211. He also was charged with two strike priors, under sections 667, subdivisions (b) through (i), 1170.12 and 668, and two serious felony priors, pursuant to sections 667, subdivision (a)(1), 668 and 1192.7, subdivision (c).
On July 2, 2007, Summers pleaded guilty to robbery and admitted his strike priors and serious felony priors. On November 16, 2007, the court denied Summers's motion to strike one or both of his strike priors, and sentenced him under the Three Strikes law to a term of 25 years to life, with an additional five-year term to run consecutively for each of the prior serious felonies, for a total term of 35 years to life. Summers was given credit for time served of 231 days. Summers timely appealed the judgment.
DISCUSSION
I
Refusal to Dismiss/Strike the Prior Strike Convictions
Summers contends the court abused its discretion when it refused to strike one or both of his strike priors because he was outside the spirit of the Three Strikes law. We reject this contention.
Section 1385, subdivision (a) provides in part that a trial court "may, either of [its] own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." In Romero, the court concluded that section 1385, subdivision (a) permits a court to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) The Romero court emphasized that a "court's discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385(a), and is subject to review for abuse." (Romero, at p. 530.)
Romero noted the " 'amorphous' " concept of " ' " 'in furtherance of justice' requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People," ' " and concluded that "a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely 'to accommodate judicial convenience or because of court congestion.' [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if 'guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' [Citation.]" (Romero, supra, 13 Cal.4th at pp. 530-531.)
The court in People v. Williams (1998) 17 Cal.4th 148, 161 refined the standard for dismissing a prior strike " 'in furtherance of justice.' " It concluded, "[t]he court in question 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 [or she] had not previously been convicted of one or more serious and/or violent felonies." (Ibid.)
Finally, in People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony), the court held that a court's refusal to dismiss or strike a prior conviction allegation also is subject to review under the "deferential abuse of discretion standard." "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] 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." (Carmony, at pp. 376-377.)
"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. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.) "In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]." (Ibid.)
" 'It is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] . . . 'Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]. Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which [the defendant] falls once he [or she] commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable [person] could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Carmony, supra, 33 Cal.4th at p. 378.)
Here, after reviewing Summers's motion to dismiss/strike his prior strike convictions, his probation report and the prosecution's statement in aggravation brought under section 1170, subdivision (b), the trial court denied Summers's motion, observing:
"I have now had an opportunity to read the people's motion as regards to the Romero request to strike one of Mr. Summers' strikes. I have also given careful consideration to the basis for striking the strike, primarily whether or not Mr. Summers falls outside the sentencing scheme of the three strikes law and in so doing the court is obligated to look at a variety of factors including the offense itself, Mr. Summers' past history and Mr. Summers' personal circumstance. In so doing I have the opportunity to look at the extent to which Mr. Summers has engaged in criminal behavior, the pattern of that criminal behavior, the age of the strikes, prior strikes, and other criminal conduct that Mr. Summers has engaged in, and looking at all of those circumstances, Mr. Summers, I am unable to find any justification from your perspective to strike any strike as pertains to you. [¶] Quite frankly, sir, I don't understand why you continue to engage in the criminal behavior you engage in. But time and time again you are given opportunities to be placed on probation. You are given opportunities to reform. And time and time again you have failed to reform. [¶] In fact, as is clearly documented in the probation report, at the time you engaged in the most recent robbery, you were on federal probation in a rehabilitation program, decided to walk away from that program and primary [sic] because you claim that you weren't able to pay your bills and decided to commit this final robbery. I feel there is just absolutely no justification given the circumstances of your past criminal behavior, the circumstances of the current offense and opportunities that you have had to rehabilitate where you have squandered those opportunities that would justify . . . a determination that you fall outside the sentencing scheme and thus strike one of your prior robbery convictions. So therefore, your request is denied."
The record shows the trial court was aware of its discretion under section 1385, and that it considered whether Summers fell outside the sentencing scheme in the Three Strikes law. The court noted that at the time Summers committed the most recent robbery, he already was on federal probation for bank robbery; that he was in a rehabilitation program, which his probation report noted was for heroin addiction; and that he decided to "walk away" from that program and "squander[] those opportunities" simply because he was unable to pay his bills. His probation report notes Summers acknowledged that "he keeps repeating the same conduct (bank robbery) in pretty much the same fashion; that he should be 'wiser with age and not come up with the same crazy solution.' "
The record also shows Summers has a lengthy criminal record, dating back to when he was a minor. Defendant admitted he was arrested/convicted in the State of New York for theft, vandalism, burglary or robbery, and grand larceny and was incarcerated there from December 1985 to October 1988.
In addition, his felony strike priors arise from two separate bank robberies. In 1992 he was convicted of robbery and sentenced to 80 months in federal prison. In 2001 he again was convicted and sentenced to 70 months in federal prison for robbery. In both those instances, as well as in his most recent bank robbery, he used a demand note threatening to use a gun. Summers also was convicted of petty theft with a prior in 1998 and was sentenced to two years in California state prison.
Defendant has not pointed to any evidence in the record suggesting or showing "extraordinary" circumstances exist that would justify striking one or both of his prior strike convictions. (See Carmony, supra, 33 Cal.4th at p. 378.) Nor has he argued that the court considered any impermissible factors in refusing to strike his prior strike convictions. Based on the evidence in the record and the court's "careful consideration" of the various factors in light of such evidence, we conclude the court did not abuse its discretion in refusing to strike one or both of his prior strike convictions.
II
Cruel and Unusual Punishment
Summers next contends his sentence of 35 years to life is cruel and unusual punishment under the federal and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17.) We disagree.
The Eighth Amendment to the United States Constitution "prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271.) But the "gross disproportionality principle reserves a constitutional violation for only the extraordinary case." (Lockyer v. Andrade (2003) 538 U.S. 63, 77 (Lockyer) [two consecutive 25 years to life terms for two petty thefts not grossly disproportionate].) Under the California Constitution, punishment is disproportionate if it "shocks the conscience" considering the offender's history and the seriousness of his offenses. (In re Lynch (1972) 8 Cal.3d 410, 424.)
This is not one of the rare cases in which the sentence is grossly disproportionate to the severity of the crime, or the punishment is so severe that it shocks the conscience. Summers is not being punished merely for the current offense, but also for his recidivism. (People v. Mantanez (2002) 98 Cal.App.4th 354, 366 (Mantanez); People v. Romero (2002) 99 Cal.App.4th 1418, 1432.) As already noted, Summers's criminal record is extensive. Moreover, his commission of criminal acts has not been deterred by probation, parole or even by incarceration, as evidenced by his most recent robbery when he was still on federal probation after being convicted in 2002 for a similar crime.
When faced with recidivist defendants, California courts consistently have found the Three Strikes law does not constitute cruel and unusual punishment. (Mantanez, supra, 98 Cal.App.4th at p. 359; see also Ewing v. California (2003) 538 U.S. 11, 29-30.) Summers's sentence conforms to sentences for repeat offenders under the Three Strikes law and is proportionate to sentences for repeat offenders. (E.g., People v. Romero, supra, 99 Cal.App.4th at p. 1433 [25 years to life for theft of magazine]; Lockyer, supra, 538 U.S. at p. 77 [25 years to life for stealing videotapes valued at approximately $150].) We thus conclude his sentence of 35 years to life does not constitute cruel and unusual punishment under the federal and California Constitutions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.