Opinion
E052343
12-02-2011
THE PEOPLE, Plaintiff and Respondent, v. EDY BERREONDO, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. BLF004347)
OPINION
APPEAL from the Superior Court of Riverside County. Randall Donald White, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Edy Berreondo appeals his c onviction of two counts of conspiracy (Pen. Code, § 182, subd. (a)) to bring drugs into a prison in violation of Penal Code section 4573. He contends that his three-strikes sentence is disproportionate to his crime, and thus constitutes cruel and unusual punishment. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant is an inmate at Ironwood State Prison. In June 2006, a correctional officer monitoring a telephone call between defendant and another party heard defendant asking the other party to "bring in some stuff," or some similar language. Her suspicions aroused, the correctional officer notified Officer Juan Gutierrez of the Investigative Services Unit. Officer Gutierrez began an investigation, listening to defendant's telephone calls. Gutierrez also took note of the telephone numbers of defendant's contacts, and cross-referenced them with defendant's visitor list and other inmates' telephone contacts.
Officer Gutierrez activated the recording and monitoring system to listen to the call that had aroused the correctional officer's suspicions. Defendant was speaking to someone named "Angie." The telephone number of that call corresponded to a person on defendant's visitor list, Norma Angelica Estrada. At the time, Estrada was defendant's girlfriend; she is now defendant's wife.
The conversation between defendant and Estrada was to the effect that Estrada had brought some contraband into the prison one week earlier, and defendant was attempting to persuade Estrada to do so again. Officer Gutierrez called up the recordings for any other calls made to Estrada's telephone number, and continued to monitor all calls to that number until July 2, 2006. Gutierrez recognized the voices of both defendant and Estrada on the recordings in that time frame.
There were also recorded calls from another inmate who was housed on defendant's unit, Alex Enriquez. These calls were to Enriquez's brother, Carlos.
All the calls, both those between defendant and Estrada, and those between Enriquez and his brother, outlined the steps, albeit in somewhat coded language, for Estrada to procure more drugs from Carlos Enriquez, and to bring them to defendant during a scheduled visit at the prison in a few days. In some of the calls, defendant and Estrada referred to Carlos Enriquez's telephone number, and in other calls Enriquez passed Estrada's telephone number to his brother, thus showing a connection among all the participants.
After listening to the calls, Officer Gutierrez obtained a warrant to search Estrada. On July 2, 2006, Estrada was in the visitor processing area of the prison, and an officer escorted her into Gutierrez's office. They confronted Estrada, saying they had reason to believe she was attempting to smuggle drugs into the prison. At first, Estrada denied everything. After presenting her with the search warrant and playing a recording of her calls with defendant, however, Estrada admitted that she had contraband. Estrada produced a clear plastic bag and some money during a search. Estrada was then turned over to the local police agency for arrest.
The plastic bag contained five balloons. Four of the balloons contained a white crystalline substance that looked like methamphetamine. The fifth balloon contained what appeared to be marijuana. The substances tested positive for methamphetamine and marijuana. The combined weight of all the drugs was 17.51 grams.
On her arrest, Estrada agreed to talk to police. She admitted bringing the drugs into the prison at defendant's request. She had hidden them in her waistband. Estrada did not receive anything for doing this, and she had only decided about one week earlier to do this for defendant. Defendant had told her where to go to pick up the drugs. The police conducted another preliminary test on the substances, which came back positive for methamphetamine and marijuana. It was stipulated at trial that two of the balloons were analyzed at the laboratory and found to contain methamphetamine. The marijuana was not analyzed at the laboratory.
After these events, defendant was charged with two counts of conspiracy to bring a controlled substance into a prison; one count related to the methamphetamine, and the other count related to the marijuana. The information alleged as overt acts in support of the conspiracy (1) defendant's telephone calls on June 15, 2006, to Estrada, to make arrangements to deliver the drugs, (2) defendant's telephone call to Estrada on June 27, 2006, also to make arrangements for the drug delivery, (3) defendant's telephone call to Estrada on July 1, 2006, confirming the arrangements to deliver the drugs, and (4) Estrada's entry into the prison with the drugs.
The information also contained a number of special allegations, including a strike prior based on defendant's 1999 conviction of robbery, a second strike prior based on defendant's 2001 conviction of carjacking, a third strike prior based on defendant's 2001 conviction of attempted robbery, and a fourth strike prior based on defendant's 2001 conviction of assault with a firearm.
The information further alleged that defendant had served a prior prison term, and alleged a number of factors in aggravation.
An amended information later alleged, as additional overt acts, the four telephone calls between Alex Enriquez and Carlos Enriquez leading up to the drug delivery by Estrada.
A jury found defendant guilty of both counts, and the trial court found the prior conviction allegations true in a bifurcated trial.
After conviction, defendant asked the trial court to exercise its discretion to dismiss the 1999 strike prior. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The trial court declined to do so and proceeded to sentencing. The court sentenced defendant to 25 years to life on count 1, plus one year for the prison term prior, and a concurrent term of 25 years to life on count 2. As a state prisoner serving a sentence on another conviction, defendant was not entitled to any presentence custody credits.
Defendant has now appealed, raising challenges to his sentence.
ANALYSIS
Defendant's overall argument is that his sentence of 25 years to life is grossly disproportionate to his offense. He challenges the sentence in two main ways: First, he makes a two-pronged procedural (Romero) attack on the third-strike sentence: (1) his attorney was incompetent in asking the trial court to consider dismissing only the oldest "strike" prior, and (2) the court should have considered mitigating evidence to treat defendant as outside the third-strike sentencing scheme. Second, even if the third-strike sentence was procedurally proper, the sentence violates the Eighth Amendment as it is grossly disproportionate to defendant's offense. We reject each claim in turn.
I. Defendant's Claim of Ineffective Assistance of Counsel Is Without Merit
Defendant argues that his trial counsel rendered constitutionally ineffective assistance in failing to request the trial court to dismiss all of his strike priors, instead of addressing his request solely to the oldest strike conviction.
Counsel did file a request, pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, asking the court to exercise its discretion to dismiss the oldest prior. Counsel pointed out that defendant had been a minor at the time of the robbery he was convicted of in 1999. (He was 18 when convicted.) Counsel also noted that the first strike was remote in time. Otherwise, counsel contended that the current offense was minor because the quantity of drugs was small, the current offense was not a serious or violent felony, as statutorily defined, and that a third-strike punishment was disproportionate to the severity of the current offense.
At the hearing, the court noted that the strikes resulted from two prior instances of crime, the robbery conviction in 1999, and the three remaining convictions all arose out of one incident in 2001. The court found that both strike incidents, 1999 and 2001, were instances of violent felonies, and so denied the request to dismiss a strike prior.
Defendant now contends that his counsel was incompetent in addressing the request for dismissal solely to the oldest strike prior. In order to prevail on a claim of ineffective assistance of counsel (IAC), a defendant must demonstrate both that his or her counsel's representation fell below an objective standard of reasonableness, and that but for counsel's error, it is reasonably probable that the defendant would have realized a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
Defendant argues that "[d]efense counsel failed to argue that at least two of [defendant's] other strikes from the carjacking incident should also be stricken. It appears as though counsel was acting under the mistaken belief that a defendant can only obtain one strike per incident or case and that he believed that [defendant] only had two strikes; one arising from the 1999 incident and one arising from the 200[1] incident." Thus, appellate counsel argues, defendant's trial counsel was ineffective for asking for dismissal only of the 1999 prior, as the court would still have had three alleged strike priors, all arising out of the same incident in 2001. Appellate counsel contends that the trial attorney should have "presented the facts of the 2001 case, . . . and argued that those strikes should also be stricken because they really all amounted to a single act." (See People v. Burgos (2004) 117 Cal.App.4th 1209 [although qualifying strike convictions stayed pursuant to Pen. Code, § 654 may be treated as separate strikes, it is possible for the trial court to abuse its discretion in refusing to strike one of two prior convictions which arose from a single act]; see also People v. Scott (2009) 179 Cal.App.4th 920, 931 [construing Burgos to mean that, when two strike convictions arise out of the same act, the trial court is not required to dismiss one of them, but must consider the fact of their arising from a single act as one factor in a Romero analysis].)
The argument is unavailing. Not only must a defendant show that trial counsel's representation was deficient, the defendant must also establish prejudice. The defendant bears the burden on both prongs of the Strickland analysis (People v. Pope (1979) 23 Cal.3d 412, 425), and failure on either prong will defeat the IAC claim. (Strickland v. Washington, supra, 466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Boyette (2002) 29 Cal.4th 381, 430-431.)
The record before us is silent as to the reason why defense counsel elected to petition the court to dismiss only the 1999 conviction. Where the record is silent, the appellate court is left simply to speculate on counsel's tactical choice or other potentially articulable reason for pursuing a particular action. Defendant must show that there is simply no satisfactory explanation for counsel's action. (See People v. Anderson (2001) 25 Cal.4th 543, 569.) Defendant has made no such showing here. The focus of counsel's Romero request was on defendant's juvenile conviction; this focus sheds some light on the possible reason for counsel's tactical choice. Counsel may well have believed that the trial court would be more likely to consider dismissing an offense committed while defendant was a juvenile.
We need not be detained by an extended evaluation of counsel's performance, however, because defendant also clearly fails on the prejudice prong. His 1999 conviction was for robbery, a serious and violent felony. Defendant may have committed that crime when he was a minor (age 17), but he was tried as an adult and sentenced, at age 18, to two years in state prison. About two years later (i.e., the approximate span of defendant's prison sentence), he committed the carjacking, which resulted in convictions for conspiracy to commit carjacking (Pen. Code, § 182, subd.(a)(1)), carjacking (Pen. Code, § 215, subd. (a)), attempted robbery (Pen. Code, §§ 211, 664), and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). There was, in effect, no break whatsoever in defendant's criminal career. The 2001 charges resulted in a substantial state prison term of 17 years. Defendant was in fact serving this sentence in prison at the time of the current offenses.
Even if trial counsel had asked the court to consider dismissing two of the three 2001 strike priors, the court emphasized that defendant's criminal career included the commission of at least two separate incidents (1999 and 2001) of violent crime. What the court did was essentially the same as what defendant claims counsel should have done: It treated defendant as if he had two episodes of violent crime, rather than four separate strike priors. (See People v. Burgos, supra, 117 Cal.App.4th 1209, 1216-1217.) There is no probability on this record that the result would have been any different had counsel also brought to the court's attention the two additional 2001 strike priors, rather than conflating all the 2001 convictions into one incident of violence.
II. The Trial Court Did Not Abuse Its Discretion in Imposing a Third-strike Sentence
Defendant contends, somewhat separately, that the trial court should have given more consideration to mitigating factors and should have considered defendant as a person outside the contemplation of the three-strikes sentencing scheme. (See People v. Williams (1998) 17 Cal.4th 148, 161.) We review the trial court's determination whether to dismiss a strike prior, and to treat the defendant as a person outside the spirit of the three strikes law, for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)
Defendant argues that the trial court should have given greater consideration to mitigating evidence. That is, his criminal history is a result of involvement in drugs, which began when he was 13 years old. He dropped out of school in the ninth grade. He is a person who needs drug counseling more than anything else, but programs such as Narcotics Anonymous meetings are not available to him in prison. When he committed the current offense, defendant was in the general prison population, but since then he had been housed separately, had dropped out of prison gangs, and had gone through gang debriefing.
When considering whether prior strike convictions should be dismissed, the trial court must have in mind "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." (People v. Williams, supra, 17 Cal.4th 148, 161.) Here, the court did so.
All of the proffered mitigating information was presented to the trial court at the time of sentencing. At the hearing, counsel described defendant's criminal history, including his juvenile record, his early drug use, his current disassociation with prison gangs, and his presently "clean" prison record and "model prisoner" behavior. The facts before the court also included defendant's extensive record, the lack of any significant period of his remaining free of crime, even while in prison, and the facts and circumstances of the present offenses. Appellate counsel repeatedly opines that defendant's current offenses are minor, but we cannot agree. He conspired with other inmates to import controlled substances into the prison. He and his inmate coconspirator abused their telephone privileges to conspire with persons outside the prison to accomplish the scheme. Defendant overcame Estrada's reluctance, to persuade her to run the drugs for him, and the scheme very nearly succeeded. These were not "minor" offenses.
Given the seriousness of the current offenses, including the grave and intransigent problem of drugs in prisons, as well as the aspect of defendant's recruitment of others to participate in criminal activity, coupled with defendant's very serious—and violent— prior record, the trial court did not abuse its discretion in determining that defendant was precisely the sort of repeat offender who comes within the intended reach of the three strikes law. The trial court did not abuse its discretion in refusing to dismiss any of defendant's prior strike offenses.
III. Defendant's Sentence Is Not Unconstitutionally Disproportionate to His Offenses
Defendant argues that his sentence of 25 years to life was so grossly disproportionate to his current offenses that it offends both the federal and the state constitutional guaranties against cruel and unusual punishments.
Defendant's sentence did not violate the federal Constitution. The Eighth Amendment does contain a narrow proportionality principle applicable in noncapital cases. (Ewing v. California (2003) 538 U.S. 11, 20 [123 S.Ct. 1179, 155 L.Ed.2d 108].) But in both Ewing and the companion case of Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166, 155 L.Ed.2d 144], the United States Supreme Court held that imposing a 25-years-to-life sentence for recidivist criminals—those who are unable or unwilling to conform their conduct to social norms—does not offend the cruel and unusual punishment clause. (Ewing v. California, supra, 538 U.S. 11, 30-31 [123 S.Ct. 1179, 155 L.Ed.2d 108] [three-strike sentence for stealing $399 in golf clubs is not cruel and unusual]; Lockyer v. Andrade, supra, 538 U.S. 63 [123 S.Ct. 1166, 155 L.Ed.2d 144] [25 years to life for two petty-theft-with-a-prior convictions is not unreasonable].)
Under the state Constitution, proportionate punishment analysis is done under two prongs: First, the reviewing court considers the crime itself, both in the abstract and under the totality of the circumstances, "'including such factors as its motive, the way it was committed, the extent of defendant's involvement, and the consequences of his acts . . . ,' to determine whether a particular punishment is grossly disproportionate to the crime for which it is inflicted." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1197, quoting People v. Dillon (1983) 34 Cal.3d 441, 478-479.) Second, the court must "consider 'the nature of the offender' and inquire 'whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.'" (People v. Weddle, supra, 1 Cal.App.4th 1190, 1198, quoting People v. Dillon, supra, 34 Cal.3d 441, 479.)
In the abstract, the crime of conspiracy to smuggle controlled substances into a prison is not a minor crime. In addition, the severity of defendant's sentence results from his status as a recidivist offender; his sentence is not disproportional compared to the offenses of anyone who commits a felony, who also stands convicted of at least two prior serious or violent felony strikes.
The totality of the circumstances indicate that defendant was the primary actor in the conspiracy, who persuaded, cajoled, importuned and recruited others, and who directed what was to be done, when, how and by whom. The motive was both personal and venal. Defendant owed $1,200 as a result of the previous botched delivery of drugs, and he told Estrada he needed this shipment to make it right. The method of its commission was sophisticated, involving the orchestration of many other actors, both inside and outside the prison. Its consequences were less severe than they might have been, had the conspiracy actually succeeded, but they were severe enough to disrupt the lives (conviction of criminal charges, at the least) of several others besides defendant.
As to considerations of the nature of the offender, defendant was relatively young, but he had been continuously involved in criminal activity from a fairly young age. Prior convictions and imprisonment did not deter him; he continued his criminal activities while in prison, as the current offenses exemplify. His record included both violent and nonviolent offenses. His state of mind was clear: He intended to violate the law, and he induced others to participate in criminal activities with him. His offenses were knowing and deliberate.
Defendant's sentence was the same as for other recidivists with prior serious or violent felony convictions. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512, 1516.) It did not constitute cruel or unusual punishment.
DISPOSITION
Defendant's three-strike sentence was proper. The trial court did not abuse its discretion in sentencing him as a third-striker, defendant's counsel was not incompetent, and his sentence did not offend proscriptions against cruel or unusual punishments. The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.