Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD204908, Melinda J. Lasater, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Kevin Terrell Burton appeals from a final judgment following a jury trial in which he was convicted of one count of possessing a controlled substance (cocaine base). After finding true the allegations that Burton had suffered five prior serious or violent felony convictions, the trial court sentenced Burton to an indeterminate term of 25 years to life in state prison. Burton contends that the trial court abused its discretion in refusing to dismiss any or all of his prior strike convictions. He further contends that his sentence constitutes cruel and unusual punishment. Finally, Burton asserts that the trial court erroneously imposed and stayed his prior prison term enhancements, rather than striking them.
We conclude that the trial court did not abuse its discretion in denying Burton's motion to dismiss his prior strikes, and further conclude that Burton's sentence does not violate the California or United States Constitutions' prohibitions against cruel and/or unusual punishment. However, as the People concede, the trial court erred in not striking Burton's prior prison term enhancements. We therefore modify the judgment by striking the prior prison term enhancements, and affirm the judgment as so modified.
The Eighth Amendment to the United States Constitution prohibits imposition of "cruel and unusual punishment." (Italics added.) Section 17 of article I of the California Constitution prohibits imposition of "[c]ruel or unusual punishment." (Italics added.) For the sake of simplicity, when we discuss the United States and California Constitutions' prohibitions together, we will refer to the prohibited acts as "cruel or unusual punishment."
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's case
At around 11:45 a.m. on February 24, 2006, San Diego Police Officer Joseph Peralta was driving his patrol car in downtown San Diego when he saw two men standing on the sidewalk in the middle of a block on Ninth Avenue. The area is known for a high level of narcotics-related activity. Peralta made a U-turn and watched the two men "for a few seconds." Peralta saw what he believed was a hand-to-hand drug exchange. Peralta's belief about what had occurred between the men was based on his field training and his six months of being a police officer.
Officer Peralta drove toward the two men, intending to make contact with them. He parked his patrol car along the west curb of Ninth Avenue. When the two men saw Peralta, they immediately walked away from each other. One man walked north on Ninth Avenue. The other man, who was identified at trial as Burton, got on a bicycle and started riding south on Ninth Avenue, past Officer Peralta. Peralta saw that Burton's hand was "balled up," resting on the bicycle's handlebar.
Officer Peralta opened his car door and told Burton to stop. Although Burton was the only other person in the area, Burton responded, "Who me?" Peralta watched Burton open his right hand and drop several pieces of small white rocks onto the sidewalk. Burton then turned the corner. Peralta ran after Burton and ordered him to stop. Peralta eventually grabbed Burton in order to stop him. Officer Peralta handcuffed Burton and placed him inside the patrol car.
Peralta then returned to the area where he had seen Burton drop the white rocks. Peralta recovered some of the rocks and conducted a presumptive test at the scene. The rocks tested positive for cocaine base. A police criminalist later conducted additional testing on the rocks and confirmed that they contained .08 grams of cocaine base. Detective Robert Redding testified that .08 grams of cocaine base is a usable quantity, with a street value of about $10. Redding further testified that it is common for someone to throw away drugs if he or she is about to be apprehended by police. According to Redding, if a person throws drugs on the ground and is not arrested, he or she will return later to retrieve the drugs.
2. The defense case
In an apparent effort to provide an explanation as to why Burton's hand was "balled up" on the day of his arrest, the defense called three witnesses. Officer David Iorillo testified that at about 9:45 a.m. on the day before Burton was arrested, Iorillo saw Burton and another man arguing near 16th and K Streets, in downtown San Diego. The two men then separated, and both left the area. Later that morning, Iorillo saw Burton and the same man engaged in another argument. Iorillo could not tell whether the men had been involved in a physical altercation, but they both appeared to be disheveled and out of breath. Iorillo noticed that Burton had a small abrasion on the top of his right hand, near his knuckles.
Malone Eason, a security guard for the Neil Good Day Center, testified that on the day before Burton was arrested, Eason had seen Burton waiting to be admitted into the Center. Burton's hand was swollen, and had some cuts on it. Eason gave Burton some peroxide and a bandage. Eason could not tell whether Burton's hand was broken, but he noticed that Burton appeared to be in pain. Eason believed that Burton was not able to use his hand, because Burton could not hold the bandages or hydrogen peroxide.
Dr. Robert Talac, a resident in the orthopedics department at the University Of California San Diego, testified that he had examined Burton on April 1, 2007, while Burton was in the county jail. Burton complained of stiffness in his right hand. Burton said that the stiffness had started as a result of a fight or altercation that had occurred six weeks earlier. Dr. Talac concluded that Burton was unable to fully extend the fingers on his right hand. Dr. Talac did not detect any nerve damage or swelling.
B. Procedural background
By information filed February 28, 2007, Burton was charged with one count of possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The information further alleged that Burton had suffered five prior serious or violent felonies (Pen. Code, §§ 667, subds. (b)-(i) and 1170.12, § 668) and that he had served four prior prison terms (§ 667.5, subd. (b), § 668).
Further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted Burton on August 15, 2007. Burton waived his right to have a jury determine whether he had in fact suffered the charged prison priors and strike priors. The court found true the allegations as to Burton's priors.
Burton moved to dismiss one or more of his prior strikes. On October 16, 2007, the trial court denied Burton's motion, declining to strike any of Burton's five strike priors. The court sentenced Burton to an indeterminate term of 25 years to life, pursuant to the Three Strikes Law. The court stayed the sentences for the prison prior enhancements.
Burton filed a timely notice of appeal on October 18, 2007. He filed a corrected notice of appeal on December 7, 2007.
III.
DISCUSSION
A. The trial court did not abuse its discretion in refusing to dismiss any of Burton's strikes
Burton contends that the trial court abused its discretion in declining to dismiss any of his strike priors. We review the trial court's decision not to dismiss a strike for an abuse of discretion. (People v. Romero (2002) 99 Cal.App.4th 1418, 1434 (Romero).) "'Under [the deferential abuse of discretion] standard an appellant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance. [Citation.]' [Citation.]" (Ibid.)
"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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 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.) "[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." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
According to Burton, the trial court "failed to properly balance relevant facts and, instead, reached a decision on the basis of its 'usual approach' not to strike strikes for a defendant more than once." Burton further argues that his five prior strike convictions "occurred during a single period in his youth when appellant was a self-acknowledged angry young man in his teens and early twenties." According to Burton, since his last strike conviction for robbery in 1987, he has been convicted only of possession of "de minimus amounts of cocaine base" in 2000 and in this case in 2007. Burton also points out that his "advancing age is a significant consideration." He claims that "[i]t makes absolutely no societal sense to commit this man to prison for what would effectively be a life sentence without the possibility of parole for the victimless crime of possessing .08 grams of cocaine base."
In evaluating the trial court's decision not to strike prior strikes, we consider not only the conduct underlying the current felony conviction, but also the defendant's history of recidivism. Burton's criminal history began in 1977 with a robbery. Just two years later, in 1979, he committed another robbery. Burton's five strike priors consist of that 1979 robbery, a 1981 robbery, and two additional counts of robbery and one count of attempted robbery, all of which occurred in 1987. Burton served time in prison for the 1981 robbery, a 1986 burglary, the 1987 robberies, and for another conviction in 2000 for unlawful possession of a controlled substance.
During the 1981 robbery, Burton entered a residence brandishing a gun, and ordered the three female residents to give him money. In the 1987 robbery, Burton robbed an employee at a gas station after hitting the man with the handle of an axe. Burton bound the employee, put him in a closet, and waited for the manager to arrive. Burton robbed the gas station manager and bound her as well. Burton fled in the manager's vehicle and later attempted to rob another person. While being pursued by police, Burton crashed the vehicle.
In addition to noting Burton's lengthy criminal history, the trial court also expressed concern that Burton did not understand the seriousness of his offense. The court said, "[O]ne of the things I am – I found what I was looking for, I wanted to make sure it was substantiated, is the defendant not understanding the seriousness of the possession violation or being in possession being a serious violation. And I mean I've had that feeling throughout. [¶] . . . My view is that he hasn't got a clue as to the seriousness of what he does." The court also stated, "I cannot in good faith, even though there is a part of me that would like to see some rehabilitation at the end of this tunnel for Mr. Burton, I cannot in good faith strike any strikes. I don't feel that there is a legitimate basis under Romero having had it already been done once." (Italics added.)
The trial court noted that Burton had previously been afforded opportunities to seek help for his addiction, and that he was apparently unable to change his behavior. Burton had spent most of the prior 26 years of his life in prison. Each time he got out, he reoffended. In fact, he repeatedly and consistently sought out cocaine as soon as he was released. The court indicated concern that because of Burton's addiction, he was more likely to "act out in such a way that it would endanger other people."
The trial court also expressed skepticism as to Burton's latest request for leniency because Burton had made virtually the same arguments after his 1987 conviction, when he also requested dismissal of his prior strikes. In 1987, the trial court agreed to dismiss the strikes, and Burton served eight years in prison. The trial court in this case was disinclined to believe that Burton might change his behavior, particularly since Burton's previous crimes were motivated by his drug addiction, and Burton had done little, if anything, to address that addiction.
Burton nevertheless asserts that his case is not one in which "reasonable people might simply disagree about whether to strike one or more of a defendant's strike priors." Rather, he maintains that it is clear that his situation falls, "at least in part, outside the Three Strikes sentencing scheme." This assertion is simply not accurate. Burton suffered five strike priors ─ not an insignificant number ─ yet continued to violate the law each time he was released from custody in order to sustain his drug habit. There is no evidence in the record that Burton sought rehabilitation while in prison, or at any other time. Further, despite Burton's claims that his increasing age will have an ameliorative effect on his recidivism, his age has apparently not affected his ability to gain control of his drug addiction.
While Burton's current conviction is not for a violent offense, his record establishes a consistent pattern of criminality such that the trial court could reasonably have concluded that he represents the type of person targeted by the Three Strikes law, i.e., a persistent recidivist who continues to put the public at risk by repeated criminal conduct. Although we may have ruled differently if we were making the decision in the first instance, we conclude that the trial court acted within its discretion when it declined to strike any of Burton's prior strikes and imposed the legislatively authorized sentence.
B. Burton's sentence does not constitute cruel or unusual punishment
Burton contends that his sentence of 25 years to life is disproportionate to his crime and shocks the conscience, and that the sentence therefore constitutes cruel or unusual punishment. We reject this argument.
1. Burton's sentence does not violate the California Constitution
A sentence may violate the state constitutional ban on cruel or unusual punishment "'if . . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' [Citation.]" (People v. Dillon (1983) 34 Cal.3d 441, 478.) In Romero, supra, 99 Cal.App.4th at pages 1431-1432, the court outlined the well established framework for considering claims of cruel or unusual punishment under the state Constitution:
"'In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. [Citations.] First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into 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." [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions.' [Citation.]"
A defendant must overcome a considerable burden in order to establish that the sentence is disproportionate to his level of culpability. Successful challenges to proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) In applying the Romero framework, courts in a number of California cases have rejected claims that sentences under the Three Strikes law violated the state Constitution's prohibition against cruel or unusual punishment. (See, e.g., Romero, supra, 99 Cal.App.4th at pp. 1431-1432; People v. Cortez (1999) 73 Cal.App.4th 276, 286; People v. Askey (1996) 49 Cal.App.4th 381, 388.)
With regard to the first prong of the analysis, Burton asserts that possession of cocaine base is a "relatively minor felony offense," and points out that the circumstances of his case did not involve confrontation or danger. He further notes that there is no evidence that he was armed, or that he put up resistance when the officer stopped him. He contends that his sentence of 25 years to life is grossly disproportionate to his crime. In making this claim, Burton overlooks the fact that his sentence is based not solely on his current crime, but also on the fact that this was his latest felony offense in a long criminal history attributable to his addiction to drugs ─ for which he has not sought treatment despite his prior prison commitments.
Burton downplays the significance of his long and serious criminal history, arguing that his prior crimes occurred long ago, "during a single period" when he was young. For the reasons discussed above, we disagree with this characterization of Burton's criminal past. Further, although the current offense does not involve the commission of a violent act, Burton is clearly still motivated to acquire drugs ─ the same motivation he had when he committed his prior serious offenses.
In addition to the nature of the current offense, "recidivism is a legitimate factor to consider when imposing a greater sentence than for a first time offense." (People v. Cuevas (2001) 89 Cal.App.4th 689, 704-705; see also People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) "[S]ociety is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time." (People v. Martinez, supra, 71 Cal.App.4th at p. 1512; see also People v. Cooper (1996) 43 Cal.App.4th 815, 823-824 (Cooper) ["Under the Three Strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]"].)
Burton's repeated criminal behavior is precisely what the Three Strikes law is intended to address:
"The primary goals of recidivist statutes 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 person's 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.'" (Cooper, supra, 43 Cal.App.4th at p. 824, quoting Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)
By way of comparison, in Romero, supra, 99 Cal.App.4th at page 1433, the court upheld a sentence of 25 years to life for a defendant who had incurred two prior convictions for nonviolent felonies and subsequently stole a magazine. The Romero court determined that the sentence was not cruel or unusual punishment under the California Constitution. Burton's current offense is no less serious than the third offense committed by the defendant in Romero. In light of the holding in Romero, we disagree that the nature of Burton's offense and the totality of the circumstances render Burton's sentence grossly disproportionate to his crime. Burton's lengthy criminal history, coupled with his repeated failure to address his serious and destructive cocaine addiction, establishes that the sentence of 25 years to life imposed in this case is not disproportionate to Burton's culpability.
Burton next compares his punishment with punishments that are prescribed for more serious crimes in California. He asserts that his sentence of 25 years to life "is exceeded only by a sentence of life without the possibility of parole or death following convictions . . . for first degree murder . . . and a select few other violent crimes . . . ." Burton also notes that his sentence is much greater than the penalties that are imposed for first time serious and violent offenses such as voluntary manslaughter and second degree murder. He contends that his sentence is a constitutionally disproportionate sentence for "a relatively minor felony offense [normally] punishable by probation and prison sentences of 16 months, 2 or 3 years."
We reject Burton's comparison of his sentence under the Three Strikes law to the sentence for first degree murder or to the sentences for other serious or violent crimes, in the absence of prior strikes. (See, e.g., Romero, supra, 99 Cal.App.4th at p. 1433 ["'"Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendant's] punishment for his 'offense,' which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons." [Citation.]' [Citation.]"].)
Burton also compares his sentence to recidivist punishments for similar crimes in other jurisdictions, asserting that California's Three Strikes law "is among the harshest in the nation," and that because of this, his sentence constitutes cruel or unusual punishment. We disagree. The fact "'[t]hat California's 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. It does not require "'"conforming our Penal Code to the 'majority rule' or the least common denominator of penalties nationwide." [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.'" (Romero, supra, 99 Cal.App.4th at p. 1433, quoting People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
2. Burton's sentence does not violate the federal Constitution
Burton contends that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. The Eighth Amendment "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing) (plur. opn. of O'Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.)
Chief Justice Rehnquist and Justice Kennedy joined the plurality opinion, while Justices Scalia and Thomas filed opinions concurring in the judgment, concluding that the Eighth Amendment contains no proportionality principle. (Ewing, supra, 538 U.S. at pp. 31-32 (conc. opns. of Scalia, Thomas, Js.).)
In Ewing, the United States Supreme Court considered whether a sentence of 25 years to life under California's Three Strikes law violated the Eighth Amendment. Ewing was convicted of grand theft for shoplifting three golf clubs valued at $1,200. He had previously been convicted of four serious felonies, including a robbery and three burglaries stemming from a single case. (Ewing, supra, 538 U.S. at pp. 17-18, 20.) In addition to the serious felony convictions, Ewing's criminal record included numerous theft related convictions, and convictions for drug possession, battery, burglary, unlawful possession of a firearm, and trespassing. (Id. at p. 18.)
The Supreme Court concluded that Ewing's sentence did not violate the Eighth Amendment, reasoning that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Ewing, supra, 538 U.S. at pp. 29-30.) The Court noted that although Ewing's sentence was a long one, "it reflect[ed] a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." (Id. at p. 30.)
Burton has been convicted of numerous felony offenses in the past, and has served a number of state prison sentences. His prior strikes are serious. Although the current offense does not involve violence, the offense demonstrates that Burton still suffers from the same addiction that was at the root of his prior serious felonies. In view of the nature of Burton's prior offenses and his continuous criminal history, we conclude that the sentence of 25 years to life is not grossly disproportionate to the crime charged, and does not shock the conscience. We thus conclude that Burton's sentence does not constitute cruel or unusual punishment under either the California Constitution or the United States Constitution.
C. The trial court erred in staying, rather than striking, Burton's prior prison term enhancements
In addition to sentencing Burton to 25 years to life, the trial court imposed and stayed Burton's four section 667.5, subdivision (b) prison prior sentence enhancements. Burton contends that the trial court erred in doing so, arguing that once the court finds the prison prior enhancement allegations to be true, the court must either impose or strike those enhancements. The People agree with Burton that the trial court should have stricken, rather than stayed, Burton's section 667.5, subdivision (b) enhancements, citing People v. Langston (2004) 33 Cal.4th 1237, 1241. In Langston, the Supreme Court stated, "Section 667.5(b) provides for an enhancement of the prison term for a new offense of one year for each 'prior separate prison term served for any felony,' with an exception not applicable here involving a prior five-year commitment 'washout' period of freedom from custody and further felony offenses. Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]" (Langston, supra, 33 Cal.4th at p. 1241.) Accordingly, we find it proper to strike the prison prior enhancements.
IV.
DISPOSITION
The judgment is modified to strike rather than stay the two prior prison term enhancements under section 667.5, subdivision (b). The clerk of the superior court is directed to modify the abstract of judgment to reflect the disposition of this opinion, and is further directed to forward the corrected abstract to the Department of Corrections. In all other respects, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J. HALLER, J.