Opinion
H024064.
7-18-2003
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY DION BURGOS, Defendant and Appellant.
Defendant Timothy Dion Burgos was charged by information with assault upon a peace officer with a deadly weapon (Pen. Code, § 245, subd. (c) [count 1]), recklessly evading a peace office (Veh. Code, § 2800.2, subd. (a) [count 2]), transportation of heroin (Health & Saf. Code, § 11352, subd. (a) [count 3]), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) [count 4]), possession of methamphetamine for sale (Health & Saf. Code, § 11378 [count 5])), and being under the influence of controlled substances (Health & Saf. Code, § 11550, subd. (a) [count 6]). The information alleged that defendant had personally used a deadly weapon in the commission of the assault (§§ 667, 1192.7, subd. (c)), had suffered two prior serious felony convictions (§ 667) and two prior strike convictions (§§ 1170.12, 1192.7, subd. (c)), and had served five prior prison terms ( § 667.5, subd. (b)). Pursuant to a negotiated disposition, defendant pleaded guilty to counts 2 through 6 and admitted the strike and prison prior allegations. After denying defendants request that it dismiss the two strike priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628 (Romero), the trial court imposed an indeterminate term of 25 years to life on count 2, concurrent terms of 25 years to life on counts 3 and 4, stayed the term of 25 years to life on 5 pursuant to section 654, dismissed count 1, and struck the "serious" felony and prison prior enhancements.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal defendant contends he is entitled to a remand for resentencing because "the Three Strikes Law is cruel and unusual within the meaning of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution" and because his own sentence of 25 years to life is grossly disproportional to his culpability. In a concomitant argument, defendant contends that, if this court finds a waiver of his cruel and unusual punishment issues, his trial counsels failure to adequately raise those issues in the trial court constitutes ineffective assistance.
I. Facts
We summarize the facts underlying defendants convictions based upon the preliminary hearing transcript and the factual summary presented in the probation report.
On April 19, 2000, San Jose police officers were advised of an attempted robbery in the area of the Bank of America on Meridian Avenue. Within five minutes of the police broadcast that described the suspect vehicle, officers saw defendant driving a Honda Civic that they believed contained the woman who had tried to rob a woman named Mary Nguyen. A woman was in defendants front passenger seat, and two female juveniles were in the rear seat. Officer Lezotte tried to stop the Civic by using his emergency lights and a siren.
Although defendant was charged by amended felony complaint with second-degree robbery, no evidence was presented as to that count at the preliminary hearing and the magistrate did not bind defendant over on that charge. However, the prosecutors response to defendants Romero motion and the probation officers report indicate that at approximately 12:30 p.m., on April 19, 2001, Mary Nguyen left her car and walked towards the bank with her purse containing $ 30,000 that she intended to deposit and that "a car, believed to be defendants," drove up and a woman got out and tried to grab the purse. The woman punched Nguyen in the face, but Nguyen was able to retain the purse. The woman got back into the passenger side of the vehicle, which fled the scene. The probation report indicates that the car was a black Honda with no license plates, that the Honda drove up and the robber got in the front passenger seat, the victim was frightened and reluctant to participate in in-field showups, and that the victim did not identify anybody in the car and said that the car is only similar. The report noted that, "However, one of defendants juvenile passengers admitted that the group has just come from the Bank of America."
Lezotte pursued defendant for 16 miles, and at least two other San Jose police cars joined the chase. During his flight, defendant "endangered" persons and property as he traversed residential neighborhoods. Defendant would zigzag from lane to lane to circumvent police actions to stop the Civic. At least one police car had "difficulty keeping up" with the chase. At one point, defendant "drove over the top of an island and almost took some oncoming traffic head on. The speeds he was going through the residential area were extremely dangerous for the community." At another point, defendant entered the lane of an approaching driver in an apparent effort to "shake" off the pursuit. He ignored stoplights and signs and once "sideswiped" a vehicle in an on-coming turn lane.
During the pursuit, Officer Keplers brakes "faded" from "overuse." To avoid colliding with the lead patrol car, Kepler moved his patrol car into the adjacent traffic lane, coming alongside the Civic. Defendant made eye contact with Kepler and then, without slowing, deliberately turned "directly" into Keplers car and rammed its drivers door. The Civic, which was lighter than the patrol car, "ricocheted" into the oncoming lanes of traffic.
After several hundred yards, defendant stopped the Civic, and he was arrested at that point. Inside a bag on the Civics right front passenger floorboard Lezotte found personal toiletries, identification and a checkbook in defendants name, and a baggie containing a large amount of methamphetamine. Officers also found a camcorder in the passenger area and three boxes of power tools in the trunk.
The parties entered into a stipulation for purposes of preliminary hearing that the methamphetamine weighed 13.36 grams, while the probation report indicates that the methamphetamine weighed 37.5 grams.
Detective Metcalfe believed the methamphetamine was possessed for the purpose of sale because it was "a tremendous amount" that was "too much" for "even four people."
At the police pre-processing center, Officer Blank discovered that defendant had secreted a piece of plastic containing black-tar heroin in his rectum.
A blood sample taken from defendant indicated the presence of controlled substances including morphine, codeine, methamphetamine, and amphetamine.
II. Discussion
Defendant contends the "Three Strikes Law is cruel and unusual within the meaning of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution" and that his own sentence of 25-years-to-life under that law violates the same state and federal constitutional prohibitions against cruel and/or unusual punishment. The People claim defendant waived consideration of these issues on appeal since he failed to raise a cruel and unusual punishment claim in the trial court; alternatively, they contend his punishment was neither cruel nor unusual "given the `violent circumstances surrounding count two, that [he] was convicted of transportation of multiple controlled substances with an additional conviction for possession for sale of one of those substances, and that [he] is a recidivist with numerous past convictions including those for serious and/or violent crimes." (Capitalization and emphasis omitted.)
We first set forth the relevant proceedings in the trial court.
Defendant pleaded guilty to counts 2 through 6 and admitted the strike and prison term allegations; in return, the prosecutor moved to strike the serious felony allegations and to dismiss count 1, which would have constituted another "serious" felony and "strike" (§§ 667, 1192.7, subd. (c)(11)). The prosecutor agreed defendant could "bring a Romero" motion to dismiss the strikes in the interests of justice.
The prosecutor also agreed not to initiate a new prosecution for the assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury upon a correctional officer which occurred while defendant was incarcerated pending disposition of these charges ( § 245.3; see also § 4131.5).
Appended to defendants Romero motion was a psychiatric report on defendant; appended to the prosecutors response were investigative reports dealing with defendants assault and battery on Correctional Officer Herte on December 23, 2000.
At the hearing on the Romero motion, defendants mother said defendants criminal history was the result of drug abuse, and many of his relatives and associates asked for leniency, stressing his substance abuse problems and need for treatment. Defendant expressed remorse for his past and present actions and noted the poor environment in which he was raised. He said he had been introduced to drugs as a "kid" and that his drug use escalated into an addiction that led to a "revolving door in and out of prison." To some extent, he acknowledged guilt for the crimes to which he had pleaded guilty, but he denied having possessed the methamphetamine for purposes of sale. He also denied the present assault count. Denying the 1993 assault charge to which he earlier had pleaded guilty along with an attempted residential burglary, he said he had pleaded to the assault to receive a "three-year deal."
Defense counsel said the prior strikes had arisen when defendant threw a rock through a window during a planned residential burglary. He argued defendants other convictions all involved drug use and that the present offenses had resulted from defendants possession and use of drugs. After noting the dire circumstances of defendants upbringing, counsel asked the court to "strike one strike and give [defendant] a lengthy sentence," which he argued would adequately both protect the community and punish defendant for his present and prior conduct, while giving defendant an opportunity to become a viable community member in the future.
The prosecutor responded by noting that the pursuit had followed police attempts to stop the Civic to investigate an attempted robbery and that the quantities of controlled substances seized were such that it is "beyond belief that theyre for personal use."
Noting that the "recommendation of the probation department at this time is 80 years to life," the court referred the matter back to probation for the department to discuss the applicability of Romero in this case. In its supplemental response, the prosecutor set forth the facts of the earlier attempted residential burglary and assault with a deadly weapon strikes and included the preliminary hearing transcript of the testimony of the assault victim, whose testimony contradicted defendants version of those charges proffered at the Romero hearing.
In denying defendants Romero request, the trial court noted that defendant was 38 years old, that he had a "criminal history" over the preceding 19 years, and that he only had "remained out of custody one and a half years since 1987." The court pointed out that defendant had eight prior felony and twenty-one prior misdemeanor convictions. (Cal. Rules of Court, rule 4.421 (b)(2)), his performance on probation and parole had been poor (rule 4.21 (b)(5)), on the day he had been released on parole following incarceration for the strike offenses he was arrested for being under the influence of methamphetamine and for felony possession of that controlled substance, that he had been on parole when he committed the pled-to offenses, and that is parole status allegedly had been one of his excuses for fleeing. The court also noted that, although defendant received his prior strike convictions for one case, "the first strike resulted from an attempted burglary where [he] attempted to break into a home but was prevented from doing so by the daughter of the victim who was watching over the house while her mother was on vacation. [P] The second strike occurred when the daughter[] came out of the house and attempted to either stop [defendant] or to get his license plate number. [He] then drove the vehicle at the woman . . . and this resulted in a conviction for assault with a deadly weapon." The court also considered the facts of the charged offenses, which involved what the court found to be a "high-speed chase, running red lights and stop signs for 16 miles . . . . The defendant drove his car into a police car, which is very similar to the strike case . . . ." The court accepted the probation reports factual summary that, at the time of his arrest, defendant possessed: "18.7 grams of tar heroin and 37.5 grains of methamphetamine. A blood sample showed the presence of heroin, methamphetamine, and codeine at the time of the offense."
We note that defendants woman passenger removed the Civics front and rear license plates prior to the attack upon Mary Nuygen.
The parties entered into a stipulation for purposes of preliminary hearing that the heroin weighed .7 grams, while the probation report indicates that the heroin weighed 18.7 grams. The prosecutor used the probation reports recitation that defendant had possessed 37.5 grams of methamphetamine and 18.7 grams of heroin in his Romero response. Since defendant neither objected to that characterization at the Romero hearing nor to the probation officers report at sentencing, this court also accepts the factual statements in the probation report as "inherently reliable." (People v. Evans (1983) 141 Cal. App. 3d 1019,1021; see also In re Laylah K. (1991) 229 Cal. App. 3d 1496, 1500, fn. 2, 281 Cal. Rptr. 6.)
Although the trial court agreed that defendant was "an addict," it noted that it had "not found that hes made any effort to become drug free. Not only does [he] use drugs, but he appears to be an active drug dealer. He has never enrolled in any treatment program, and he does not appear to be motivated to work on his addiction."
The court acknowledged that defendant could obtain gainful employment. It also acknowledged defendants poor upbringing, including that his mother was an alcoholic, that he lacked a father figure, and that defendants father was a drug dealer. However, the court saw nothing to suggest that defendant would not reoffend upon release, instead concluding that "by his record he is an habitual offender. After his strike convictions he has continued to violate the law. His parole officer is considering whether to violate his parole even now for his violent behavior while in the jail awaiting sentence in this case. [P] . . . [Defendant] fits squarely within the three strikes law."
A. Waiver
The People claim defendant cannot raise the ground of cruel and unusual punishment on appeal because he failed to object on that ground below. We disagree.
In his points and authorities in support of his Romero request that the trial court dismiss the prior strikes, defendant cited the seminal cruel and unusual case, People v. Dillon (1984) 34 Cal.3d 441, 479, 194 Cal. Rptr. 390, 668 P.2d 697 (Dillon ), in arguing that "factors which must be considered related to the nature of the offender are factors which concern the defendant himself. `This inquiry focuses on the particular person before the court and asks if the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics and state of mind." (Italics added.) Under his caption "Present Offense," defendant again cited the Dillon opinion, noting that it was "a cruel and unusual punishment case" in the course of arguing that "[a] finding that the proscribed punishment is unwarranted in the instant case, may be based alone on the fact that the current offense is not very severe." Defendant then quoted People v. Morales (1992) 5 Cal.App.4th 917, 930, a case that in turn quoted the Dillon opinion, in his argument that a court "should look to: `the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts [citations] in determining what the appropriate punishment should be."
In asking the trial court to consider whether it should dismiss one or more strikes, defendant thus asked the trial court to consider the application of holding in the Supreme Courts opinion in Dillon that a court has discretion to reduce a conviction of first degree murder based upon the constitutional prohibition of cruel and unusual punishment. We conclude that defendants specific references to Dillon preserved his state constitutional cruel or unusual claim and that his general argument that the trial court should consider whether the punishment that would be imposed if a strike were not dismissed in the interest of justice would be grossly disproportionate to defendants culpability was adequate to preserve a similar claim with regard to the Eighth Amendment. In fact, the People concede "a Romero motion provides a safety value [sic] to guard against unduly harsh punishment. [Citation.]"
For the reasons stated above, we find that defendants Romero motion effectively preserved the cruel and/or unusual issue raised in his appellate briefing. Accordingly, we address the merits of the claim.
B. Cruel and/or Unusual Punishment
The Eighth Amendment of the federal constitution, applicable to the states through the Fourteenth Amendment, provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (U.S. Const., 8th Amend.) Article 1, section 17, of the California Constitution likewise declares "cruel or unusual punishment may not be inflicted or excessive fines imposed." The state and federal prohibitions are not coextensive. (People v. Anderson (1972) 6 Cal.3d 628, 634, 100 Cal. Rptr. 152, 493 P.2d 880.)
Inasmuch as the California Constitutions ban against cruel and unusual punishment arguably affords defendant broader protection than the U.S. Constitutions, we analyze defendants claim only under the California standard. A punishment that satisfies this standard necessarily also satisfies the federal standard. (Cf. People v. Anderson, supra, 6 Cal.3d 628.) California case law recognizes that the federal prohibition against cruel and unusual punishment offers no greater protections than the analogous state constitutional provision. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
In In re Lynch (1972) 8 Cal.3d 410, 105 Cal. Rptr. 217, 503 P.2d 921 (Lynch) above, the California Supreme Court devised three "techniques" for assessing whether punishment is cruel or unusual. In order to determine if a punishment "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [fn.]" (Id. at p. 424.) Courts should (1) consider "the nature of the offense and/or the offender" (id . at p. 425), (2) compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses (id . at p. 426) and (3) compare the punishment to other punishments imposed by other jurisdictions for the same offense. (Id . at p. 427.)
Before addressing the Lynch factors with regard to defendants punishment in this case, we summarily reject his broad argument that the Three Strikes Law as applied to non-violent recidivists is cruel and unusual punishment in light of the recent decisions by the United States Supreme Court in Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, 538 U.S. ___ and Ewing v. California (2003) 155 L. Ed. 2d 108, ___ U.S. ___ . For example, in Ewing, the court upheld a three strikes sentence for a grand theft conviction of three golf clubs worth approximately $ 1,2000. (123 S. Ct. at pp. 1183-1185.) In conducting a proportionality analysis, the court weighed not only the gravity of the defendants current offense "but also his long history of felony recidivism." (Id . at pp. 1189-1190.) Based upon Ewings history, which included a robbery and three residential burglaries, the court concluded that his 25-years-to-life sentence was not grossly disproportionate and did not violate the Eighth Amendment. (Id . at p. 1190.)
Turning to the Lynch factors, we first consider the nature of the offense and the offender. Regarding the offense, we evaluate "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts." (Dillon, supra, 34 Cal. 3d at p. 479.) We also focus on the particular offenders "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
With regard to this prong of the Lynch analysis, defendant argues his sentence is disproportionate because, "although he has a [sic] eight felony convictions and twenty-one misdemeanor convictions, [he] accumulated two `strikes in one incident nine years ago in 1993, where he broke a window of a residence and then allegedly drove his car at the victim when she tried to write down his license plate number." He notes the victim was not physically injured and that he pleaded guilty in that case prior to the enactment of the Three Strikes law. After noting his conviction for possessing a sawed-off-shotgun at age 22 in 1984 and his possession of a BB gun, some drugs, and a .12 gauge shotgun in 1989, defendant argues, "other than the incident in 1993, all of [his] convictions in the past ten years have involved use or possession of illegal substances." With regard to his nature, defendant claims his overall lengthy criminal record is neither violent nor "even relatively serious" and points out "his own longstanding addiction for which he has never been given an opportunity by the criminal justice system to obtain treatment is a mitigating factor." With regard to the current offense, he argues it was never proved that he was engaged in the reported attempted robbery and that, while he "led the officers on a dangerous pursuit, his conduct appeared to be drug related." He also claims that his intentional violent act of driving into the patrol car is "mitigated by the fact that [he] was under the influence while driving and his judgment and ability to drive were obviously impaired." Defendants claims to the contrary, we conclude an examination of the offenses and offender in this case supports the conclusion that defendants sentence is not cruel or unusual.
While the instant "reckless" evasion conviction was a "wobbler" (Veh. Code, § 2800.2, subd. (a)), the transportation, possession, and possession for sale counts were "straight" felony convictions (Health & Saf. Code, §§ 11352, subd. (a); 11378; 11379, subd. (a)). (See People v. Martinez, supra, 71 Cal.App.4th 1502, 1510.) Significantly, the facts surrounding the current offenses reveal that defendant engaged in behavior dangerous to people and property as he drove for an extended distance over an extended period of time while under the influence of a controlled substance. Such behavior "could pose a risk of death or serious bodily injury[.]" (Ibid.) Moreover, this was not an isolated attempt to elude, and trial court properly considered the "transactionally" related circumstances of the dismissed assault with a deadly weapon with personal use charge. (See People v. Harvey (1979) 25 Cal.3d 754, 758-759, 159 Cal. Rptr. 696, 602 P.2d 396; People v. Harvey (1987) 193 Cal. App. 3d 767, 774-775, 238 Cal. Rptr. 516.) It also found, contrary to defendants claim that he did not intentionally hit Officer Keplers car, that defendant intentionally "drove his car into a police car, which is very similar to the strike case . . . ." The record reveals the pursuit in the instant case lasted 16 miles, during which defendant recklessly drove at higher than posted speeds in residential areas, ignored traffic lights and signs, crossed into an on-coming traffic lane, tried to "shake" off officers by entering the opposite lane despite on-coming traffic, and side-swiped a stationary on-coming vehicle, all while three other individuals were in the Civic, including two teenagers. (Cf., rule 4.421(a)(1) [crime involved threat of great bodily harm and "other acts disclosing a high degree of . . . callousness"]; see generally, People v. Arviso (1988) 201 Cal. App. 3d 1055, 1059, 247 Cal. Rptr. 559.) Moreover, defendant was on parole when he committed these offenses, and, according to his parole officer was "at large" after failing to abide by his conditions of parole. (Cf., rule 4.421(b)(4) [prior performance on parole unsatisfactory].)
Vehicle section 2800.2, subdivision (a) provides, in pertinent part, that "if a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year."
The facts set forth in the probation report reveal what took place minutes prior to the chase. After the license plates on the Civic had been removed, defendants front passenger left the Civic and tried to rob a woman of $ 30,000. In the attempt, the passenger struck the victim. (See People v. Gragg (1989) 216 Cal. App. 3d 32, 42-44, 264 Cal. Rptr. 765; cf., rule 4.421(a)(1), (a)(8) [commission of crime indicates planning, sophistication, or professionalism], (a)(9) [attempted taking of "great" monetary value].)
Moreover, defendant was found in possession of two different controlled substances. Although we follow the trial court in accepting the probation reports recitation of the weights of both drugs, we note that, assuming defendant only possessed . 7 grains of tar heroin, as the investigating detective on controlled substances testified, defendant also possessed a significant amount of methamphetamine. (Cf., rule 4.421(a)(10).)
As previously noted in footnote 7 of this opinion, we are not required to premise our decision on the lesser amount stipulated-to at the preliminary examination since the probation officers report is deemed correct absent an objection below. (People v. Evans , supra, 141 Cal. App. 3d at pp. 1021-1022.) We similarly note that the general rule applicable to these proceedings is that facts must be viewed in the light most favorable to the judgment. (See, e.g., 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 149, p. 396.)
The record provides no support for defendants attempts to classify his controlled substances convictions as offenses of simple possession and to compare his punishment with those imposed in other jurisdictions for possession. Defendant pleaded guilty to possession of methamphetamine for purposes of sale, and his plea constitutes "an admission of every element of the offense to which the plea is entered and constitutes a conclusive admission of the defendants guilt thereof. [Citation.]" (People v. Parker (1961) 196 Cal. App. 2d 704, 708, 16 Cal. Rptr. 718.) Defendant also pleaded guilty to two counts of transportation of controlled substances, i.e., methamphetamine and heroin, and Health and Safety Code "section 11352 is intended to inhibit the trafficking and proliferation of controlled substances by deterring their movement." (People v. Arndt (1999) 76 Cal.App.4th 387, 398.) None of the controlled substance counts to which defendant pleaded guilty constitute simple possession convictions. Moreover, as noted below, defendant had several other prior controlled substance possession convictions, at least one of which involved drug-trafficking given defendants possession of scales and currency. (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957, 1002-1004, 115 L. Ed. 2d 836, 111 S. Ct. 2680 [Kennedy, J.s plur. opn.].)
In addition, we simply note that, besides the assault and battery upon a correctional officer, defendant admitted "making `pruno and flooding the toilet[]" while he was incarcerated during the pendency of these proceedings.
The trial court in this case carried out the express intent of the Legislature, punishing defendant not merely for his present crime but also for his recidivism. The probation report and his prison records reveal that defendants adult criminal history began when he was 18 years old. His criminal history spans "the last nineteen years, six counties and two states." He had eight prior felony convictions and 21 prior misdemeanor convictions. He had been granted several grants of probation and had performed poorly on probation in each case. His parole history was similarly unsatisfactory. Defendants probation officer was of the opinion that defendants "criminal history speaks for itself; he is a thief, a drug user and trafficker with a propensity for possessing weapons, a propensity towards violence and recklessness. He is a clear and present danger to the community."
In People v. Martinez, supra, 71 Cal.App.4th 1502, 1510 (Martinez), the defendant was convicted of possession of a small quantity of methamphetamine, and we upheld the Three Strike sentence in Martinez. Here, as in Martinez, "the current crimes alone are not what has earned defendant a life sentence. He is a frequent repeat offender who seemingly has not learned from past incarceration." (Id . at pp. 1510-1511.) The Three Strikes sentencing scheme addresses the career criminal, like defendant. (People v. Stone, supra, 75 Cal.App.4th at p. 717.) "Both in this jurisdiction and in other jurisdictions, habitual offender statutes have long withstood the constitutional claim of cruel and/or unusual punishment." (People v. Ayon (1996) 46 Cal.App.4th 385, 397, disapproved of on other grounds in People v. DeLoza (1998) 18 Cal.4th 585, 600, fn. 10, 957 P.2d 945; accord People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.) In Rummel v. Estelle (1980) 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, the United States Supreme Court upheld a life sentence imposed on a defendant following his third theft-related felony conviction, although the total loss from his three crimes was less than $ 230. Concluding the sentence was not cruel and unusual, the court explained that "the purpose of a recidivist statute such as that involved here is not to simplify the task of prosecutors, judges, or juries. Its primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that persons most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Id . at pp. 284-285.)
In sentencing defendant, the trial court in the present case recognized the support for defendant, his ability to obtain employment, and his unfortunate upbringing but then said the sentence it was imposing was what was required in the law in part because he is "an habitual offender" who "fits squarely within the three strikes law."
As the trial court recognized, defendants current crime is not determinative; his sentence must be considered in the context of his record, which spans several years and includes several felony convictions. Furthermore, as noted above, defendants performance on parole has been poor.
Our prior decision in Martinez is instructive. In that case, police stopped Martinez for driving while intoxicated. After Martinez refused to take a sobriety test, a search found methamphetamine on Martinezs person and a forced blood sample revealed that Martinez consumed phencyclidine. (71 Cal.App.4th at pp. 1507-1508.) Martinezs criminal history is similar to that of the defendant in the instant case. Prior to his current offense, Martinez suffered three serious felony convictions, including personal use of a deadly weapon, robbery, and attempted robbery. Martinez also had suffered three felony convictions for either public intoxication or use of a controlled substance, two convictions for battery, one conviction for brandishing a deadly weapon, and one conviction for assault. (Id. at p. 1512.) Martinez was sentenced to life imprisonment under the Three Strikes law for possessing methamphetamine and attempting to deter a peace officer from carrying out his duties. Although his final offenses were neither violent nor serious, we determined that his sentence did not "shock the conscience" and that "defendants recidivism warrants lengthy incarceration." (Id. at pp. 1512, 1517.)
Here, as in Martinez, we are not persuaded by defendants claim that his drug abuse should be viewed as a mitigating factor in sentencing. "Defendant portrays himself as a drug addict and a victim of drugs. The record demonstrates defendant has had lifelong problems with alcohol and drugs. However, drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment. [Citations.] It is notable that defendant appears to have become seriously committed to seeking treatment after incarceration on charges carrying a life term. Defendants . . . learning disabilities are unfortunate, but the law still holds such an individual responsible for his or her behavior." (People v. Martinez, supra, 71 Cal.App.4th at p. 1511.) In the case before us, defendants criminal history reveals a long pattern of illegal conduct and an inability to conform his behavior to the dictates of the law. His 1993 prior strike for assault with a deadly weapon involved an attempt of violence by defendant by the use of his car; his intended victim avoided injury by jumping into bushes at the side of the street. His attempted residential burglary posed a serious potential danger to the inhabitants and others in the area. (People v. Clayton (1998) 65 Cal.App.4th 418, 420-421.) Besides Vehicle Code violations, defendants misdemeanor history includes convictions for assault with a deadly weapon or by means of force likely to produce great bodily harm, assault, resisting a peace officer, giving a false name to a peace officer, petty theft, grand theft — person, receiving stolen property, being under the influence of a controlled substance, and possession of drug paraphernalia. In 1984, when defendant was 21 years old, he pleaded guilty to possession of a short-barreled shotgun (§ 12001.5) after one was seized from his closet during a search pursuant to a search warrant. After he was released on parole following his first prison term for possession of the illegal shotgun, defendant had his parole revoked and was incarcerated for beating his sisters boyfriend, whom he believed had abused her. He had been returned to parole for three months when he was stopped for a traffic violation in 1989. During an inventory search of defendants car, officers found a BB gun, a 12-gauge shotgun, a syringe, .08 grains of cocaine, and .3 grains of methamphetamine. When officers removed the shotgun, defendant tried to flee on foot but was apprehended, and officers found a scale and $ 215 in currency upon his person. In 1992, when defendants parole agent went to arrest him for absconding, he saw defendant give two bindles of cocaine to his sister and he found a third bindle of cocaine in defendants duffel bag. Defendant committed the strike priors in 1993; pursuant to a negotiated disposition, he received a three-year state prison term. In May 1995, he was re-released on parole following a jail term. When stopped for a traffic violation thereafter, he was under the influence of amphetamine and possessed a small baggie of heroin. The seriousness of defendants current offense and his continuous criminal history when not in custody establishes that he is a recidivist offender who poses a danger to society. The punishment imposed in this case was not disproportionate to the nature of his offense given his recidivist history.
In addition, defendants Romero motion indicates that he committed many offenses as a juvenile, namely, that (1) he sniffed paint thinners with friends and committed an auto theft in 1978 (2) he "picked up" three petty thefts and a weapons charge because he was carrying a butter knife in 1979 or 1980 (3) he was placed in a Santa Clara County juvenile rehabilitation facility (the Ranch) for an attempted robbery and a purse snatching in 1980 (4) he turned himself in to authorities in 1981 because he had failed to return from a visit pass from the Ranch the year before (5) he escaped from the Ranch in 1981 after arranging for his brother to come there in his vehicle (5) he was arrested based upon driving under the influence and receiving stolen property in 1982. The Romero motion also indicates that defendant burglarized a used car lot and took a car, tools, tires, and, a car battery in 1984 and that he was arrested in San Jose in 1986 for using a false name in a raid police conducted in a place where he was visiting.
Lynch next requires defendant to prove that his punishment was more severe than other more serious crimes in California. (Lynch , supra, 8 Cal.3d at pp. 427-429.) With regard to this requirement, defendant argues that "defendants with lengthy records that do not carry qualifying `strikes would not receive an indeterminate term" and that "if the defendant does have a single prior `strike, these sentences would be doubled, but still not approach [his] sentence." In essence, he argues that his punishment for his current felony offense is disproportionately greater than punishment for other first-time and recidivist offenders in our state. However, because defendants prior and present convictions together are responsible for his punishment in this case (People v. Askey, supra, 49 Cal.App.4th at p. 388), we only consider whether defendants punishment for his current offense with two prior strikes is disproportionately greater than the punishment imposed for more serious crimes accompanied by two strike convictions. In that regard, we note that Californias Three Strikes law treats all third offenders with two prior strike convictions the same way (see Martinez, supra, 71 Cal.App.4th at p. 1512) and that, historically, habitual offender statutes and Three Strikes statutes have withstood cruel and unusual challenges. (See, e.g., In re Rosencrantz (1928) 205 Cal. 534, 539, 271 P. 902; People v. Weaver (1984) 161 Cal. App. 3d 119, 126, 207 Cal. Rptr. 419; People v. Gray, supra, 66 Cal.App.4th at pp. 992-993; Martinez, supra, 71 Cal.App.4th at pp. 1511-1512, 1517; People v. Kinsey, supra, 40 Cal.App.4th at p. 1631.) It is within the punishing jurisdictions discretion to decide the amount of time a recidivist will serve isolated from society (Rummel v. Estelle, supra, 445 U.S. at pp. 284-285), and California has decided that recidivism in the commission of multiple felonies poses a manifest danger to society which justifies the imposition of a longer sentence. (People v. Karsai (1982) 131 Cal. App. 3d 224, 242, 182 Cal. Rptr. 406, overruled on other grounds in People v. Jones (1998) 46 Cal.3d 585, 600, fn. 8, 250 Cal. Rptr. 635, 758 P.2d 1165.)
Thus, any comparison to the sentence of a first time murderer who uses a deadly weapon is flawed, the proper comparison being to a recidivist murderer, whose punishment would be death or life without parole. "The commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies." (People v. Cooper, supra, 43 Cal.App.4th at p. 826.)
Given defendant is a repeat offender, his sentence must be compared with that of other recidivists with a similar record. We conclude such a comparison reveals that defendants state prison sentence of 67 years-to-life is not cruel or unusual. (Martinez , supra, 71 Cal.App.4th 1502.)
The third prong of the Lynch test requires comparison of punishment for the same offense in other jurisdictions. (Lynch , supra, 8 Cal.3d at p. 427.) With regard to this prong, defendant "acknowledges that recidivist statutes have gained popularity nationally over the last several years and the majority of states have implemented some type of recidivist statute." He then attempts a comparison between the punishments in this state for reckless driving to evade a police officer and transportation of heroin and methamphetamine with the punishments for those offenses in other jurisdictions. We simply note that, while Californias Three Strikes scheme is among the toughest in the nation, that does not in itself prove that it is cruel or unusual punishment. Nothing in the law requires California "to march in lockstep with other states in fashioning a penal code." (Martinez, supra, 71 Cal.App.4th at p. 1516.) In People v. Ingram, supra, 40 Cal.App.4th 1397, 1413-1416, the court similarly noted that "Californias Three Strikes scheme is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders." (See also Annot., Imposition of Enhanced Sentence Under Recidivist Statute as Cruel and Unusual Punishment (1976) 27 A.L.R. Fed 110, 117-118, and 2000 Supp., pp. 15-32.) That Californias recidivist scheme may be more extreme than others does not compel the conclusion that it is unconstitutionally cruel or unusual; "nothing in the prohibition against cruel or unusual punishment per se disables a state from responding to changed social conditions and increasing the severity with which it treats its recidivist felons." (People v. Cooper, supra, 43 Cal.App.4th at p. 827.)
The United States Supreme Court decided that a statutory scheme resulting in life imprisonment for a nonviolent felony does not violate the federal constitutional prohibition against cruel and unusual punishment. (Rummel v. Estelle, supra, 445 U.S. at pp. 284-285.) This court recently undertook an extensive comparison of Californias habitual offender statutes with other states habitual offender statutes. (Martinez , supra, 71 Cal.App.4th at pp. 1513-1516.) We discovered that the spirit of Californias Three Strikes law is not uncommon, that most states make some provision for increasing a habitual offenders punishment. (Id. at p. 1513.) While defendants sentence would be treated differently in some other states, Californias punishment is not the harshest. For example, both Louisiana and Mississippi impose life sentences without parole. (Id. at p. 1516.) Specifically, Mississippi requires life imprisonment for a third felony if any of the prior felonies were violent. (Id. at p. 1514.) Rhode Islands scheme also is similar to Californias Three Strike law; although discretionary, Rhode Island provides for a 25 year to life sentence for a third felony conviction. (Id. at p. 1515.) In Martinez, we acknowledged "that California is among the few states that impose a life sentence for a third felony conviction that is neither violent nor serious where at least one prior crime involved violence." (71 Cal.App.4th at p. 1516.) Nevertheless we concluded, "that Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code . . . . [P] The needs and concerns of a particular state may induce it to treat certain crimes or particular repeat offenders more severely than any other state . . . . [P] Whether a particular punishment is disproportionate to the offense is a question of degree. The choice of fitting and proper penalty is not an exact science but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. In some cases, leeway for experimentation may be permissible. Thus, the judiciary should not interfere in the process unless a statute prescribes a penalty "out of all proportion to the offense." (People v. Cooper, supra, 43 Cal.App.4th at p. 827, quoting In re Lynch, supra, 8 Cal.3d at pp. 423-424.)" (Martinez, supra, 71 Cal.App. 4th at p. 1516.) While Californias laws are severe, we are convinced they do not rise to the level of cruel or unusual punishment.
Of course, analyzing whether a prison sentence is unconstitutionally cruel or unusual must be tailored to the individual defendant. Our prior opinion in Martinez and conclusion about Mr. Martinez does not dictate our conclusion regarding the defendant in the present case. Here, while defendant is neither the most violent criminal nor the most frequent recidivist, his current record of at least eight felony convictions, including transportation of controlled substances, attempted residential burglary, and attempted assault with a deadly weapon; to wit, an automobile, supports the need for lengthy incarceration. Under these circumstances, we conclude that, under either the California or the federal constitution, the trial courts decision to impose the term of 67 years to life was not "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Citation.]" (In re Lynch, supra, 8 Cal.3d at p. 424.)
Taking into account the totality of the circumstances and not only the nature of the current crime, we conclude the punishment imposed is not constitutionally infirm.
III. Disposition
The judgment is affirmed.
We concur: Bamattre-Manoukian, Acting P.J., and Wunderlich, J.