Opinion
B228219
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL BOMAR, Defendant and Appellant.
Daniel Bomar, in pro. per., and Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA059645)
APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph A. Brandolino, Judge. Affirmed.
Daniel Bomar, in pro. per., and Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Daniel Bomar appeals from the judgment entered after a jury convicted him of first degree burglary and the trial court sentenced him to 40 years to life in state prison, consisting of a 25-year-to-life term under the Three Strikes Law and three five-year terms under Penal Code section 667, subdivision (a)(1).
Statutory references are to the Penal Code.
We appointed counsel to represent Bomar in the matter. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) On June 14, 2011, we directed appointed counsel to immediately send the record on this appeal and a copy of the opening brief to Bomar and notified Bomar that within 30 days from the date of the notice he could submit by brief or letter any grounds of appeal, contentions or argument he wished us to consider. Bomar filed a letter response on June 23, 2011.
We briefly describe the facts and procedural history of the case, the crime of which Bomar was convicted, and the punishment imposed and address the concerns he raises in his letter. (People v. Kelly (2006) 40 Cal.4th 106, 110.)
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information dated October 8, 2008 charged Bomar with first degree burglary (§ 459), with the special allegation that the offense was a violent felony under section 667.5, subdivision (c), because another person, other than an accomplice, was in the residence when the crime occurred. The information also specially alleged that Bomar had (1) three prior serious or violent felony convictions that qualified as "strikes" under the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); (2) three prior serious felony convictions pursuant to section 667, subdivision (a)(1); and (3) four prior prison terms within the meaning of section 667.5, subdivision (b).
2. The Evidence Presented at Trial
On the evening of August 19, 2007, Madlena Koshkaryan was in her Van Nuys home with her sister-in-law. After turning off all the downstairs lights and locking the doors, Koshkaryan and her sister-in-law went upstairs and watched television. Soon after, about 9:45 p.m., Koshkaryan heard a noise from downstairs that sounded like a plate had fallen to the floor and shattered. She then heard more noises, including footsteps and the sounds of someone shuffling through papers and drawers. She asked her sister-in-law to go downstairs with her so that she could turn on the alarm. As she went down the stairs, Koshkaryan noticed that all the downstairs lights were on and that the drawers in the game room had been opened and searched. The garage door also was open. Koshkaryan rushed back upstairs with her sister-in-law and called the police.
When the police arrived, Koshkaryan walked through the downstairs area of the house with them, noticing that a number of rooms had been ransacked and certain items of personal property, including three collectible swords and some liquor bottles, were missing. Fingerprints on a sheath that covered one of the missing swords matched those of Bomar.
On the floor of the garage, Koshkaryan found an opened 7-Up bottle and its cap that had previously been in the refrigerator. A swab sample from the 7-Up bottle and the cap, taken by the Los Angeles Police Department and tested by an outside laboratory, matched Bomar's DNA profile. According to a police detective, the 7-Up bottle and cap were destroyed based on a mandate to reduce items in the overcrowded property room.
A forensic scientist testified in Bomar's defense. According to the scientist, although a retest of the extraction from the swab of the 7-Up bottle and cap identified the DNA profile as Bomar's, independent testing on the 7-Up bottle and cap was impossible because they had been destroyed. In addition, the police did not save a portion of the swab before sending it for testing, which also would have allowed for independent testing. And those involved with the DNA testing did not notify Bomar to permit him to have someone observe the process.
3. The Jury's Verdict and Sentencing
The jury found Bomar guilty of first degree burglary and found true the special allegation that another person, other than an accomplice, was present in the residence during commission of the offense. After Bomar waived his right to a jury trial regarding his prior convictions and prior prison terms, the trial court found true the special allegations that Bomar had three prior serious or violent felony convictions that qualified as "strikes" under the Three Strikes Law and three prior serious felony convictions pursuant to section 667, subdivision (a)(1), and had served four prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced Bomar to 40 years to life in state prison, consisting of 25 years to life under the Three Strikes Law for the first degree burglary conviction, plus three five-year terms under section 667, subdivision (a)(1), for his prior serious felony convictions. The court struck the four prior-prison-term enhancements. Bomar appealed.
DISCUSSION
Bomar argues in his letter brief that his sentence of 40 years to life for committing first degree burglary is cruel and unusual punishment. We disagree.
Federal courts consistently have rejected claims that a life term imposed on a recidivist like Bomar violates the ban on cruel and unusual punishment in the Eighth Amendment to the United States Constitution. (E.g., Ewing v. California (2003) 538 U.S. 11, 29 ["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."].) Neither Bomar's criminal history nor the nature of his current offense warrants a different conclusion in this case.
California courts likewise consistently have rejected claims that sentences imposed under recidivist statutes violate California's constitutional prohibition against cruel and unusual punishment. (E.g., People v. Cooper (1996) 43 Cal.App.4th 815, 826-827.) Under state law Bomar must overcome a "considerable burden" in challenging his 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 that it "shocks the conscience and offends fundamental notions of human dignity" (In re Lynch (1972) 8 Cal.3d 410, 424). Reviewing courts 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.)
None of those factors supports a finding of disproportionality in Bomar's case. Bomar has a lengthy criminal history, dating back more than 20 years, revealing that he is a recidivist who has resisted prior efforts at rehabilitation. Although Bomar maintains he has not used violence against any of his victims, he has committed four serious or violent felonies, and the crime in this case created a dangerous situation in that he entered a residence when two people were home and removed a number of swords from the property. "In any event, society's interest in deterring criminal conduct or punishing criminals is not always determined by the presence or absence of violence. [Citations.]" (People v. Cooper, supra, 43 Cal.App.4th at p. 826.) Moreover, his sentence is not unlike others imposed on recidivists. (E.g., People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433 [25 years to life imposed for third strike of felony petty theft]; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094 [25 years to life imposed for third strike of petty theft with prior conviction].) And California's sentencing scheme for recidivists "'is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders.'" (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1664.)
To the extent that Bomar's argument encompasses a claim that the trial court abused its discretion by rejecting his motion pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497, to strike two of his prior serious or violent felony convictions so that he could avoid sentencing under the Three Strikes Law, we also disagree. In reviewing the trial court's exercise of its discretion to deny a motion to strike one or more prior serious or violent felony convictions, we "must consider whether, in light of 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, [he] 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.) Given Bomar's extensive criminal history, his inability to remain out of custody for any substantial period of time without committing another offense and the nature of the current first degree burglary offense as a violent felony, the trial court acted within its discretion in concluding Bomar did not fall outside the spirit of the Three Strikes Law.
We have examined the entire record and are satisfied that Bomar's appointed attorney has fully complied with his responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
MALLANO, P. J.
CHANEY, J.