Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Ct. No. MA044835, Lisa M. Chung, Judge.
Janice Wellborn, 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, Assistant Attorney General, Linda C. Johnson and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
In December 2008, James Arnett Brown attacked and seriously injured Ebony Strickland, the mother of his child.
He was convicted of inflicting corporal injury on a child’s parent, and special allegations that he inflicted great bodily injury upon Strickland and had two prior felony convictions were found true. The court sentenced Brown to 35 years to life.
On appeal, Brown contends his sentence is cruel and unusual because he will probably not live to see his parole eligibility date and requests that we independently review a detective’s personnel file.
We affirm.
FACTS AND PROCEEDINGS BELOW
Brown and Strickland cohabitated in Upland, California, from 2007 until October 2008. Strickland gave birth to their daughter, D., in September 2008. A little more than a week later, Brown choked Strickland during an argument and threatened to kill her if she called the police.
Strickland split up with Brown but allowed him to continue to visit D. On December 19, 2008, she took D. and her son, Da. (not Brown’s son), to Palmdale, California, where Brown was staying with relatives. Upon returning from a shopping trip during which she had left the children with Brown, Strickland noticed D. had a scratch on her cheek, a bruised lip, a drop of blood on her side, and a rug burn on her neck. Brown told her he accidentally dropped D. off the couch. Strickland and the children stayed that night and the next day at the house in Palmdale.
Throughout the next day, Strickland found blood in D.’s diaper twice. (D. was later found to have a broken femur.) That night she informed Brown she was taking D. to the hospital. Brown told Strickland he did not want D. to go the hospital because he was afraid the authorities would not believe he had accidentally dropped her. Strickland nevertheless put D. in her portable car seat and walked outside to the car with both children, leaving Brown in the house. She put D. into the back seat of the car but before she could strap in the portable car seat Brown grabbed her from behind by the hair, swung her by the hair, and caused her to fall to the street. He then smashed her head into the ground, causing her to lose consciousness. Strickland suffered lacerations on her head, bruises to her nose and shoulder, a black eye, scratches to her face, a bulging disc in her neck, and loss of feeling in her left arm and right hand.
Brown was arraigned and indicted on four felony counts: attempted murder, in violation of Penal Code section 664/187, subdivision (a); corporal injury to a child’s parent, in violation of Penal Code section 273.5, subdivision (a), with the special allegation of personal infliction of great bodily harm; and two counts of child abuse, in violation of Penal Code section 273a, subdivision (a). Pursuant to Penal Code sections 667, subdivision (a)(1), and 1170.12, subdivisions (a)-(d), the prosecution made special allegations that Brown had suffered two prior felony convictions for gross vehicular manslaughter while intoxicated, a violation of Penal Code section 191.5, subdivision (a). He pleaded not guilty to all charges and denied all special allegations.
Before trial, Brown filed a Pitchess motion requesting pretrial discovery of a detective’s personnel records. The court reviewed the records and concluded no discoverable material existed.
See Pitchess v. Superior Court (1974) 11 Cal.3d 531.
At the close of trial, the jury acquitted Brown of attempted murder but found him guilty of corporal injury to a child’s parent. The jury was hung on the two counts of child abuse. It found true the special allegations that Brown inflicted great bodily injury upon Strickland and had suffered two prior felony convictions.
Prior to sentencing, Brown filed a Romero motion urging the court to vacate the finding that he had suffered prior felony convictions for gross vehicular manslaughter while intoxicated. He argued that because the convictions arose from a single car accident in which two passengers in his own car were killed, at least one of the convictions should be stricken. The court considered the violent nature of the current offense, including the great bodily injury inflicted upon Strickland, and noted that although the two prior convictions arose out of a single act, there were two separate victims. It also considered Brown’s other criminal history: convictions for firearm possession and assault with a deadly weapon as a minor, a prior conviction for child abuse that, while only a misdemeanor, left a child hospitalized and in a coma for over a month, and several parole violations. The court denied Brown’s motion, stating he did not fall outside the spirit of the Three Strikes laws.
See People v. Superior Court (Romero) (1996) 13 Cal.4th 497; Penal Code section 1385.
As the current conviction was Brown’s third serious felony, the trial court sentenced him to an indeterminate term of 25 years to life pursuant to the Three Strikes laws. (Pen. Code, § 1170.12.) It imposed a consecutive term of five years each for the great bodily injury enhancement and prior felony convictions, for a total sentence of 35 years to life.
DISCUSSION
1. Cruel and/or Unusual Punishment
Brown contends that because he will probably not live to see his parole eligibility date, his sentence constitutes cruel and unusual punishment. We disagree.
Claims of cruel and/or unusual punishment not raised in the trial court are forfeited on appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) Though Brown sought a lesser sentence by asking the trial court to strike one of his prior convictions, he did not argue his sentence was cruel and/or unusual. Therefore, he forfeited the right to raise that issue on appeal. Nevertheless, we will consider the merits of the argument.
Article I, section 17 of the California Constitution prohibits cruel or unusual punishment. (Cal. Const., art. I, § 17.) “‘Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 568.) To determine whether a sentence is cruel or unusual, we consider the circumstances of the offense and the defendant’s age, prior criminality, and mental capability. (People v. Cole (2004) 33 Cal.4th 1158, 1235.) The defendant’s criminal background is highly relevant. (Ibid.; People v. Castello (1998) 65 Cal.App.4th 1242, 1250-1251 [the state has a compelling interest to deter recidivism]; People v. Fowler (1999) 72 Cal.App.4th 581, 584 [recidivists pose a greater threat to society than first-time felons because they are immune to ordinary modes of punishment].) Nevertheless, the state must punish criminals while maintaining respect for their human worth. (In re Lynch (1972) 8 Cal.3d 410, 424.) “Punishment which is so excessive as to transgress [the limits of civilized standards] and deny that worth cannot be tolerated.” (Ibid.) Because we judge the constitutional validity of an indeterminate prison term by the maximum term provided, we consider the proportionality of a life sentence. (Id. at p. 416.)
“‘Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.’ [Citation.]” (People v. Em (2009) 171 Cal.App.4th 964, 971.) Only in very rare cases could we declare the length of imprisonment mandated by the Legislature to be unconstitutionally excessive. (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Brown’s sentence is not disproportionate to the crime committed. Penal Code section 273.5, subdivision (a), prescribes a maximum sentence of four years for inflicting corporal injury on a child’s parent. Penal Code section 12022.7, subdivision (e), mandates an additional maximum five-year enhancement where the defendant inflicts great bodily injury upon the victim. Thus, for the crime as Brown committed it, the Penal Code prescribes a maximum sentence of nine years. But Brown was also punished for his recidivism. The jury found true that he suffered two prior felony convictions, and in making its decision not to strike one of Brown’s prior convictions, the trial court noted that his criminal background was continuous, beginning with possession of a firearm in 1993, less than two weeks before his 17th birthday. Three months later that year, he was adjudicated to have committed assault with a deadly weapon. Not quite two years after that, in 1995, he was convicted of child abuse that resulted in a child being hospitalized for over a month. Only three years subsequent, in 1998, Brown was convicted on two counts of gross vehicular manslaughter and sentenced to five years in prison. He violated parole three times.
Penal Code section 273.5, subdivision (a) provides: “Any person who willfully inflicts upon a person... corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”
Brown manifests a continuing pattern of violence and disregard for the law. Accordingly, we conclude his sentence is not disproportionate and does not violate the California Constitution’s proscription of cruel or unusual punishment.
Whereas the California Constitution prohibits cruel or unusual punishment, the United States Constitution prohibits cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) But because more protection is afforded under the former than the latter, our conclusion that Brown’s sentence did not violate the California Constitution perforce means it did not violate the United States Constitution either. (People v. Haller (2009) 174 Cal.App.4th 1080, 1092.)
Brown argues his sentence is cruel or unusual because he will not live to see parole. The argument is unpersuasive. (Rummel v. Estelle (1980) 445 U.S. 263, 285 [life sentence after three separate convictions for theft of $80, $28.36 and $120.75 does not constitute cruel and unusual punishment]; People v. Haller, supra,174 Cal.App.4th at p. 1094 [long parole ineligibility for recidivist not cruel or unusual].)
2. Pitchess Motion
Before trial, Brown asserted police Detective Maria Czarnocki, who investigated the incident and testified at trial, falsely attributed statements to a potential witness. He filed a Pitchess motion requesting pretrial discovery of Czarnocki’s personnel records, specifying he sought any records relating to acts of dishonesty. The trial court ordered the production of the records for inspection, conducted an in camera review of them, and concluded no discoverable material existed. Brown requests that we independently review the in camera proceedings to determine whether the trial court properly exercised its discretion in denying discovery. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232; People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415.)
After having independently reviewed the sealed reporter's transcript of the in camera hearing, we find no abuse of discretion. (People v. Mooc, supra, 26 Cal.4th at p. 1228.)
In the abstract of judgment the box indicating defendant was sentenced to an indeterminate term pursuant to Penal Code sections 667, subdivision (a)(1), and 1070.12, subdivisions (a)-(d) has not been checked. The clerk of the court will be ordered to correct the abstract of judgment to so reflect the indeterminate sentence.
DISPOSITION
The judgment is affirmed. The clerk of the court is directed to correct the abstract of judgment to reflect an indeterminate sentence under Penal Code sections 667, subdivision (a)(1), and 1070.12, subdivisions (a)-(d).
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.