Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA073706, Suzette Clover, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Mary Susan Anderson pleaded guilty to seven felony counts arising from the theft and use of credit cards and other items stolen on separate occasions from a resident of a nursing home, an elderly hospital patient and a nurse. Because she had numerous qualifying prior serious felony convictions, Anderson was sentenced to an aggregate state prison term of 35 years to life under the “Three Strikes” law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) On appeal Anderson contends the trial court abused its discretion by declining to dismiss her prior strikes in the interest of justice. (See § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) Alternatively, she argues the sentence constituted cruel and unusual punishment in violation of her federal and state constitutional rights. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The October 7, 2007 Crimes
On the evening of October 7, 2007 Anderson, wearing a white laboratory coat, entered an assisted living facility in Glendale, identified herself as Isabel Jones and told the front desk staff person she had come to collect blood samples from Carol Smith and another resident. She was directed to the room of Smith, who is an amateur watercolor artist and has several paintings hanging on the walls of her two-room apartment. Anderson asked Smith if she remembered Anderson from Glendale Memorial Hospital and said she had come to see Smith’s paintings. Anderson told Smith the hospital was planning a children’s room and wanted to use Smith’s paintings to decorate the room. Flattered, Smith showed Anderson the paintings in her apartment. When Anderson requested Smith’s personal information for the proposed display, Smith took her purse and wallet out of the nightstand and allowed Anderson to review her California identification card. Anderson asked if she could see more of Smith’s pictures, some of which were hanging in the library. As Smith, who uses a wheelchair, rolled into the hall, Anderson claimed she needed to wash her hands and walked back into Smith’s apartment. Smith waited in the hall. Several minutes later Anderson returned to the hall, and both women proceeded toward the library. At the library Anderson asked Smith to wait for her while she located her associate and walked toward the entrance of the facility. Smith became suspicious and rolled back to her apartment where she discovered her wallet was missing. About 30 minutes later, one of Smith’s stolen credit cards was used to charge $649 at a nearby retail store in Glendale. Smith identified Anderson from a photographic array (commonly called a “six-pack”) prepared by a Glendale police detective.
2. Anderson’s July 26, 2008 Arrest
On July 25, 2008 a retirement home caretaker entered her office in Torrance and found a woman rifling through her purse. Although the woman claimed she was looking for a beauty salon and immediately left, the caretaker provided a description of the woman to the Torrance police. Anderson, who matched the description, was spotted walking on a street in Torrance and was arrested. She had in her possession a credit card reported stolen from a 93-year-old patient at Santa Monica Hospital, on which she had fraudulently charged $964.31; a credit card stolen from a nurse who worked at the Little Company of Mary Medical Center in Torrance; and identification cards for three other people.
3. The Information, Plea and Sentencing
The charges arising from these events were consolidated in an amended November 4, 2009 information containing seven counts. Anderson was charged with one count of first degree and one count of second degree burglary (§ 459) (counts 3 and 4) in connection with the October 7, 2007 incident. She was charged with five additional felony counts, including one count of receiving stolen property (§ 496, subd. (a)) (count 6), two counts of theft (§ 484e, subd. (d)) (counts 7 and 9), one count of identity theft (§ 530.5, subd. (a)) (count 8) and one count of possession of a forged driver’s license (§ 470b) (count 10). It was specially alleged as to all counts that Anderson had suffered two prior convictions of a serious felony (burglary) within the meaning of the Three Strikes law and had served three separate prison terms for prior felony convictions within the meaning of section 667.5, subdivision (b). Additionally, as to count 3, it was alleged that Anderson had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1).
On November 6, 2009 Anderson pleaded guilty to all seven counts. A jury found true the allegations Anderson had suffered three prior serious felony convictions and had served two prior prison terms. In anticipation of sentencing, Anderson moved to dismiss the strike allegations in the interest of justice. (§ 1385; Romero, supra, 13 Cal.4th 497.) In support of the motion, Anderson maintained she suffers from schizophrenia (paranoid type), hallucinations and drug addiction and has experienced numerous hardships in her personal life, including prolonged sexual abuse as a child and as an adult, the murder of a sister and the death of a son in a drive-by shooting. She argued none of her crimes has involved violent conduct or targeted children, the presumed purpose of the Three Strikes law. Instead, Anderson stole credit cards through subterfuge and used them to purchase gas, groceries or items she could sell to support her drug addiction. Since getting out of prison in 2007, she has sought the assistance of residential drug addiction programs, dependency parenting and domestic violence classes and had received numerous certificates attesting to her completion of various programming stages. She has also completed training as a computer operator.
In a sentencing memorandum the People stressed the vulnerability and age of the victims targeted by Anderson, her exploitation of an apparent position of trust (medical caregiver) in gaining access to those victims, the sophistication of her planning and her persistent recidivism. (See Cal. Rules of Court, rule 4.421(a)-(c).) As the People pointed out, Anderson had been sentenced to a five-year state prison term for her first strike conviction of first degree residential burglary in 1990. She had been convicted of 15 felony counts of theft-related offenses in 2001, including a second strike conviction for first degree residential burglary, for which she received a sentence of nine years eight months. The People asserted Anderson is a career criminal who is past rehabilitation.
The record indicates Anderson had previously been convicted of a second strike count of grand theft of personal property (§ 487, subd. (a)), a prior conviction allegation the jury found to be true, and had pleaded guilty to 19 (rather than 15) felonies in January 2003 based on crimes committed in 2001.
In sentencing Anderson, the court dismissed the strike allegations as to counts 6 to 10 under section 1385 but imposed a term of 25 years to life on count 3, with two consecutive five-year terms for the prior serious felony convictions. The court imposed a term of 25 years to life on count 4 but stayed the term pursuant to section 654. The court imposed the two-year middle term for count 6 (to run concurrently) and selected the middle term of two years on counts 7-10 but stayed those terms pursuant to section 654.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Refusing To Dismiss the Prior Strike Convictions on Count 3
Section 1385, subdivision (a), vests the court with discretion to dismiss a prior conviction, including a qualifying strike conviction, “in furtherance of justice.” (Romero, supra, 13 Cal.4th at p. 530; People v. Williams (1998) 17 Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law... or in reviewing such a ruling, 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 [Three Strikes] 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.” (Williams, at p. 161.)
We review the trial court’s decision not to dismiss a prior strike allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “[T]he 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. [¶]... [¶]... ‘[I]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations.... 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 he squarely falls once he 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 people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.)
Anderson contends her prior strikes, like the crimes involved in the current case, were neither violent nor dangerous, a characterization echoed by the trial court, and thus outside the primary purpose of the Three Strikes law. She also notes the length of the sentence—35 years to life—effectively ensures she will spend the rest of her life in prison. She claims her situation is akin to that in People v. Garcia (1999) 20 Cal.4th 490 (Garcia), in which the Supreme Court upheld the trial court’s decision to strike the defendant’s prior serious felony convictions in the interest of justice. Garcia’s criminal history included five prior burglaries charged as strikes, which occurred in separate incidents over a short period of time. (Id. at pp. 493-494.)
Anderson was 51 years old at the time of sentencing and will not be eligible for parole until she is approximately 77 years old.
Garcia does little to assist Anderson. The Supreme Court in Garcia concluded the trial court has discretion to dismiss a prior strike conviction allegation with respect to one count but not others. (Garcia, supra, 20 Cal.4th at pp. 503-504.) By striking the allegation with respect to only certain counts, the Garcia trial court reduced the sentence from 58 years to life to 31 years to life, still a substantial sentence. The Supreme Court declined to conclude that decision “‘[fell] outside the bounds of reason.’” (Id. at p. 503.)
The decision in People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff)similarly does not assist Anderson. Cluff had been convicted of several counts—all strikes—of molesting young boys. He served a substantial prison term and registered as a sex offender but was later convicted of failing to update his sex offender registration on an annual basis pursuant to a law that took effect five years after he had been paroled. He was sentenced to 25 years to life pursuant to the Three Strikes law. (Id. at p. 994.)
Here, the trial court agreed to dismiss the strikes as to counts 6 to 10 pursuant to the rationale of Garcia, supra, 20 Cal.4th 490, as requested, but declined to dismiss them as to counts 3 and 4. The court acknowledged the crimes were not violent or dangerous but stated “the factors in aggravation do not support striking the strikes as to counts 3 and 4.” Unlike Garcia, Anderson’s crimes did not occur over a single period of aberrant behavior; to the contrary, Anderson’s criminal history commenced more than 20 years ago and has reignited every time she is released from prison. Although Anderson’s personal burdens may warrant compassion, the fact remains she has engaged in serious criminal behavior for the last 20 years despite the best efforts of numerous social service organizations to address her psychiatric impairments and her drug addiction. Within those 20 years, she has been convicted of 30 felony offenses. She has been in and out of prison throughout this period and was on parole when she was arrested in July 2008. Notwithstanding her stated intent to overcome the challenges facing her, she is a chronic offender who resorts to the same criminal pattern within months, if not weeks, of her release from custody. We may rue the absence of effective intervention for someone with Anderson’s challenges, but the trial court did not abuse its discretion in sentencing her under the statutory scheme.
Anderson points out the decision to dismiss the strike allegations as to the lesser counts (counts 6-10) had minimal effect on her overall sentence and thus vitiated her showing of factors in mitigation. Had the court dismissed even one strike allegation as to count 3, the sentence would have remained significant but would not have amounted to a life sentence.
This point is well-taken, but, in light of the multiple aggravating factors, there was no abuse of the trial court’s discretion in electing to dismiss the strike allegations only as to the subsidiary counts.
2. Anderson’s Sentence Does Not Violate the Federal or State Constitutions’ Prohibitions Against Cruel and/or Unusual Punishment
Anderson contends her sentence of 35 years to life in prison, when viewed in light of her personal characteristics and the severity of her criminal conduct, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and cruel or unusual punishment in violation of the California Constitution.
Federal courts have consistently rejected claims that life sentences imposed on recidivists like Anderson violate the ban on cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution. (Ewing v. California (2003) 538 U.S. 11, 29 [123 S.Ct. 1179, 1189-1190, 155 L.Ed.2d 108] [“In weighing the gravity of [defendant’s] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions.”]; Lockyer v. Andrade (2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 1174, 155 L.Ed.2d 144]; Harmelin v. Michigan (1991) 501 U.S. 957, 965 [111 S.Ct. 2680, 115 L.Ed.2d 836]; Rummel v. Estelle (1980) 445 U.S. 263, 284 [100 S.Ct. 1133, 63 L.Ed.2d 382].)
In Graham v. Florida (2010) ___ U.S. ___ [130 S.Ct. 2011, 176 L.Ed.2d 825] (Graham), the Supreme Court recognized that punishments prohibited as unconstitutionally disproportionate to the offense generally fall in two classifications: Those that are categorically prohibited, and those that are prohibited based on the facts of a particular case. (Id. at pp. 2021-2022.) We construe Anderson’s challenge as the latter.
California appellate courts have likewise rejected claims that sentences imposed under recidivist statutes violate the prohibition against cruel or unusual punishment contained in the California Constitution. (People v. Cooper (1996) 43 Cal.App.4th 815, 820, 826-827; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Under state law Anderson must overcome a “considerable burden” in challenging her penalty as cruel or unusual (People v. Wingo (1975) 14 Cal.3d 169, 174), demonstrating that the punishment is so disproportionate to the crime for which it was imposed it “shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) In assessing these claims Lynch identified three factors for reviewing courts to consider: (1) the nature of the offense and the offender; (2) how the punishment compares with punishments for more serious crimes in the jurisdiction; and (3) how the punishment compares with the punishment for the same offense in other jurisdictions. (Id. at pp. 425-427.)
The first prong of the Lynch test does not support a finding of disproportionality. Anderson is a third-strike defendant who has 30 felony convictions reflected in this record. She has quickly reoffended each time after being released from custody, and all attempts at rehabilitation have failed. As we have explained, Anderson is being punished for both her current offenses and her prior criminal behavior under a California statutory scheme that expressly mandates more severe punishment for habitual criminals. Statutory schemes mandating increased punishment for recidivists have long withstood challenges on the ground they constitute cruel or unusual punishment. (See, e.g., People v. Cooper, supra, 43 Cal.App.4th at pp. 826-827; People v. Kinsey, supra, 40 Cal.App.4th at pp. 1630-1631; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.)
With respect to the second prong under Lynch, Anderson notes that murderers have received less onerous punishment than her sentence here. Again, that may be true for a one-time offender, but it is not true for a recidivist offender.
As to the third prong of Lynch, Anderson points to 11 jurisdictions in which her crimes would not have been characterized as violent or even serious. Implicitly, however, her research suggests 38 other jurisdictions have classified her crimes similarly to California’s scheme. The broad discretion granted the states by the United States Supreme Court to impose harsh sentences for crimes similar to Anderson’s is nowhere more evident than in Rummel v. Estelle, supra, 445 U.S. at pages 284 to 285, in which the Court rejected the Eighth Amendment challenge of a Texas man sentenced to life imprisonment for three convictions of credit card or check fraud totaling approximately $120.
We are not without sympathy for Anderson’s predicament. Nonetheless, the threshold for finding a particular sentence to be cruel and unusual is prohibitively high. Anderson has not demonstrated her case is that “exquisite rarity” where the sentence is so harsh as to shock the conscience or offend fundamental notions of human dignity. (See People v. Kinsey, supra, 40 Cal.App.4th at p. 1631.) Accordingly, there is no basis to find the sentence unconstitutional under either the United States or California Constitutions. (Lockyer v. Andrade, supra, 538 U.S. at p. 77; People v. Cooper, supra, 43 Cal.App.4th at pp. 826-827.) Her state prison sentence of 35 years to life was properly based on her current crimes, her recidivist behavior and her lack of progress toward rehabilitation. (See, e.g., Cooper, at pp. 825-826.)
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.
The Court of Appeal vacated Cluff’s sentence and remanded the case to the trial court to conduct a new Romero hearing. (Cluff, supra, 87 Cal.App.4th at p. 1005.) The appellate court explained that the trial court had denied the Romero motion in reliance on an unsupported inference that the new offense was not, in fact, a mere technical violation of a newly revised statute, but that Cluff had knowingly and deliberately failed to update his registration for the purpose of concealing his true residence from law enforcement. (Id. at pp. 1002-1004.) After analyzing the evidence in the record, the Court of Appeal concluded the trial court’s adverse inference was not supported by substantial evidence and the lower court had abused its discretion by denying the motion on that ground. (Ibid.) The trial court made no such erroneous inference here.