Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F08518
BLEASE, J.
Defendant Jerry Lee Walker pled no contest to assault with a deadly weapon (Pen. Code § 245, subd. (a)(1); all further statutory references are to the Penal Code unless otherwise indicated) and two counts of possession of a sharp instrument in prison (§ 4502, subd. (a)), and admitted eight prior strike convictions. (§ 667, subds. (b)-(i).) Probation was denied and defendant was sentenced to two consecutive terms of 25 years to life in state prison.
Defendant appeals, claiming the trial court abused its discretion by denying his motion to dismiss his prior strike convictions and that his sentence constituted cruel and unusual punishment. We shall affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Following an altercation with another inmate, defendant was found in possession of “an inmate-manufactured weapon”--a seven-inch “round metal stock” with a sharpened point on one end and packing tape wrapped around the other end. Defendant resisted correctional officers as they attempted to restrain him following the fight. The other inmate suffered three small puncture wounds to his neck. On a separate occasion more than a year later, officers conducting a search of defendant’s cell discovered a four and one-half inch “inmate-manufactured stabbing weapon” and a three and one-half inch “section of a hacksaw blade” under the inner sole of one of defendant’s shoes.
Defendant had eight prior strike convictions. In 1973, he was convicted of first degree burglary. (§ 459) Three years later, he was convicted of assault with a deadly weapon (§ 245), two counts of kidnapping (§ 209), and four counts of robbery (§ 211), all occurring on a single day at various locations against several victims. Defendant was serving indeterminate, consecutive life sentences on these convictions when the current offenses were committed.
Prior to sentencing, defendant filed a motion seeking dismissal of seven of his eight prior strike convictions. He argued that his 1976 convictions were a “single course of conduct” and that it “would be an unjust result” if he were sentenced on all of his prior convictions because he was only 21 years old when he committed his first strike, had been incarcerated since 1976, and “had led a mostly uneventful life while incarcerated . . . .”
In their opposition, the People noted that, since being incarcerated, defendant had violations for incidents of mutual combat with another inmate, “assault on staff,” “using force/violence,” and destruction of state property. He also had numerous incidents relating to possession, use, and trafficking of drugs and alcohol.
The trial court denied defendant’s motion, noting he had “a consistent history of criminal conduct” in terms of “what he went to prison for and what he’s charged with.” The court stated it did not see how “the interest of justice is served where [defendant] has taken a weapon and stabbed another person in prison,” and concluded there was not “a legally sufficient argument” to warrant striking defendant’s prior convictions.
DISCUSSION
I
Appellant claims the trial court abused its discretion by failing to dismiss his prior strike convictions. We discern no error.
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, . . . the 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 . . . .” (People v. Williams (1998) 17 Cal.4th 148, 161.) “Preponderant weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (Ibid.)
“‘[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.”’” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
The trial court’s determination of whether to dismiss a strike is subject to the deferential standard of abuse of discretion. (People v. Williams, supra, 17 Cal.4th at p. 162.) “[A]n appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. . . . 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.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
In the present matter, the trial court’s denial of defendant’s motion to dismiss his strike was neither irrational nor arbitrary. Relying on defendant’s serious history of criminal conduct and his current charges, the court concluded that striking defendant’s prior convictions was not warranted.
Defendant argues “[i]t should . . . be considered an abuse of discretion to deny Romero relief in a case where prior convictions are remote by [a] great length of time.” While it is true that “a prior conviction may be stricken if it is remote in time,” “the trial court should not simply consult the Gregorian calendar with blinders on.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) Defendant committed a series of violent felonies less than a year from when he was paroled on his first strike conviction. That he has not acquired a criminal conviction since his 1976 convictions is not impressive, as he has been in prison since that time. And despite his incarceration, he still became involved in drugs, alcohol, and violent behavior, culminating in the current dangerous and violent offenses. Thus, in defendant’s case, the passage of time since his strike convictions did not represent “a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways.” (Ibid.)
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529, the California Supreme Court held that a trial court may strike a prior felony strike conviction on its own motion pursuant to section 1385, subdivision (a).
Defendant attempts to minimize the significance of his current offenses by pointing out that the record does not reveal who the aggressor was in his altercation with the other inmate. Defendant claims the offense may have been “based merely on excessive force[] used against an attacker.” But regardless of whether defendant initially was the aggressor, the fact remains that defendant possessed inmate-manufactured weapons on two occasions, which he used when the opportunity presented itself.
Noting that possession of a sharpened instrument by an inmate is a “strict liability” crime (see, e.g., People v. Evans (1969) 2 Cal.App.3d 877 and People v. Steely (1968) 266 Cal.App.2d 591), defendant maintains that lengthy sentences are inappropriate for such offenses. But whereas in the cases relied on by defendant, the weapon was possessed under circumstances involving a possibly innocent explanation, here, defendant possessed weapons that were either concealed or used as a weapon, refuting any possible innocent explanation that might have mitigated his conduct at sentencing.
Likewise unavailing is defendant’s effort to downplay the seriousness of his strike convictions. He claims that the 1976 offenses “can be viewed as a single crime.” To the contrary, eight hours separated defendant’s robbery at a fast food restaurant and the carjacking offense. The next robbery occurred at a cafe in “a nearby town.” Defendant also points to the fact that “no one other than an accomplice was injured . . . [a]nd the amounts stolen in the robberies were minor.” However, defendant discharged a firearm during two of the incidents. The fact that the offenses could have had graver consequences for the victims does not detract from the very serious nature of these offenses.
Defendant’s strike convictions were extremely serious, and his conduct in prison since the commission of those offenses reflects continuing deviant behavior. The express purpose of the three strikes law is to guarantee longer prison sentences for habitual criminals who commit any felony following the conviction of a serious or violent felony. (People v. Strong (2001) 87 Cal.App.4th 328, 337.) Thus, defendant’s sentence does not reflect punishment “merely on the basis of his current offense but on the basis of his recidivist behavior.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) Even “the nonviolent or nonthreatening nature of [a] felony cannot alone take the crime outside the spirit of the law.” (People v. Strong, supra, at p. 344.) Here, defendant’s behavior was violent, with one of the offenses constituting a new strike conviction. (§ 1192.7, subds. (c)(13) & (c)(23).)
Under these circumstances, the trial court reasonably concluded that defendant could not be deemed outside the spirit of the three strikes law, in whole or in part. In other words, this is not “an extraordinary case--where the relevant factors . . . manifestly support the striking of a prior conviction and no reasonable minds could differ . . . .” (People v. Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, the trial court did not abuse its discretion in denying defendant’s motion to dismiss his prior strike convictions.
II
Defendant also claims his sentence constituted cruel and unusual punishment in violation of the California and United States Constitutions. Defendant has forfeited this claim.
Defendant did not assert in the trial court that sentencing him under the three strikes law would constitute cruel and unusual punishment. He now relies on language in People v. Williams, supra, 17 Cal.4th at page 160, to claim that implicit in a Romero motion is a request that the trial court consider whether the sentence constitutes cruel and unusual punishment under the state and federal constitutions.
In discussing the term “furtherance of justice” as used in section 1385, the court in Williams noted a suggestion in Romero that the rights of the defendant to be balanced against society’s interests when exercising discretion to dismiss a strike conviction “includ[ed] the guaranties against disproportionate punishment” contained in the state and federal constitutions. (People v. Williams, supra, 17 Cal.4th at pp. 160-161.)
However, while analysis under section 1385 “‘“requires consideration . . . of the constitutional rights of the defendant”’” (People v. Romero, supra, 13 Cal.4th at p. 530), this does not absolve a defendant from expressly making a claim that sentencing under the three strikes law constitutes cruel and unusual punishment to preserve the claim for appeal. The analysis under section 1385 is not the equivalent of the constitutional analysis we are required to undertake when reviewing a pure claim of cruel and unusual punishment.
“The legal claims, despite similarities, have substantial differences. A contention that a particular statutory punishment is cruel or unusual for the particular offense and offender is not the same as a contention the trial court abused its discretion in choosing among certain prescribed statutory punishments. The ultimate issue under a cruel or unusual punishment analysis is whether the sentence ‘shocks the conscience and offends fundamental notions of human dignity.’ [Citation.] Thus, for instance, a hearing on a claim of cruel or unusual punishment involves issues generally outside the Penal Code section 1385 analysis. These issues include a ‘comparison of the challenged penalty with punishment prescribed in the same jurisdiction for different offenses which must be deemed more serious,’ and ‘comparison of the challenged penalty to punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.’” (People v. Cole (2001) 88 Cal.App.4th 850, 868-869 (Cole).)
As Cole makes clear, litigation under section 1385 does not substitute for litigation under the constitutional provisions prohibiting the imposition of a cruel and unusual sentence. Consequently, defendant’s failure to object to his sentence on the basis that it was cruel and unusual punishment forfeits the issue for purposes of appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., HULL, J.