Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. BA288290
APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed.
Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
A jury convicted defendant Rudy Casas of two counts of second degree robbery (§ 211), one count of carjacking (§ 215, subd. (a)), and one count of assault with a deadly weapon upon a police officer (§ 245, subd. (c)). In a bench trial, the court found that defendant had suffered two prior robbery convictions within the meaning of section 667, subdivisions (b) through (i) (the “Three Strikes” law) and section 667, subdivision (a)(1) (five-year enhancement for each qualifying prior conviction). The trial court imposed an aggregate sentence of 105 years to life.
All undesignated statutory references are to the Penal Code.
Defendant’s appeal raises three contentions. The first is that the evidence is insufficient to sustain his conviction for assaulting a police officer with a deadly weapon. The second is that the evidence is insufficient as to one of his Three Strikes prior convictions. The third is that his sentence constitutes cruel and unusual punishment. We reject all three contentions and therefore affirm the judgment.
STATEMENT OF FACTS RE THE CRIMES
We summarize the evidence in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.)
In the early evening of December 9, 2004, defendant, using a toy replica pistol, robbed Enrique Carrillo of the cash register receipts from his market (count 1--robbery). Defendant left the market and entered a waiting car. The car, driven by Raul Montano, sped away.
Carrillo followed the men in his car. The police were notified and took up pursuit by patrol car and helicopter. When Montano saw a police car aside him, he accelerated his vehicle, sped through a red light, made a U-turn and drove into a residential neighborhood. Defendant and Montano jumped out of their moving vehicle and ran away. Their car crashed into a house. Soon, defendant and Montano came upon and entered an unoccupied double parked van which had its lights on and engine running. When Misael Erroa, the owner of the van, opened the van’s door, defendant turned toward him, made a slashing motion with his finger across his neck, and said: “I’ll kill you.” Erroa stepped back and said “Take it” (counts 2 and 3--robbery and carjacking). Defendant, accompanied by Montano, drove the stolen van in the direction of a marked police car which was parked perpendicular to the street to block oncoming traffic. The police car was 30 to 50 meters from where defendant had stolen Erroa’s van. Uniformed Los Angeles Police Officers Gerardo Vejar and Melvin Campos were standing next to that vehicle. The area was lit. The officers had activated the headlights and spotlights on the patrol car, pointing in the direction of the homes, there were street lights on one side of the street, and a police helicopter flying above the scene was shining its spotlight on the area.
As defendant approached the police car in the stolen van, Officer Campos walked toward the van and signaled it to stop with his flashlight. Officer Vejar stood in front of the patrol car. Defendant accelerated the van toward Officer Vejar (the victim of count 4—assaulting a police officer with a deadly weapon). Officer Vejar jumped out of the way. As the van passed, its side view mirror struck the flashlight Officer Vejar was holding in his hand. The officers entered their patrol car and followed as defendant drove the van up a steep hill until the street reached a dead end. At the top of the hill, defendant and Montano jumped out of the van and “allowed it to roll back” down the hill toward the officers’ patrol car. Officer Vejar quickly maneuvered the police car so he would not be hit by the van. The van crashed into a parked car. The police, using dogs, chased defendant and Montano and soon apprehended both men.
The flashlight was not on.
Montano was not tried with defendant. The trial court submitted CALCRIM No. 373 (“Other Perpetrator”) to the jury.
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE RE COUNT 4
Defendant contends the evidence is insufficient to sustain his conviction for assaulting Officer Vejar with a deadly weapon (the van). We disagree.
1. Factual Background
In closing argument, the prosecutor urged that two separate incidents could form the basis of the assault. The first was when defendant drove the stolen van past Officer Vejar, knocking the flashlight out of his hand. The second was when defendant abandoned the van at the top of the hill, causing the van to roll back toward Officer Vejar. The trial court submitted CALCRIM No. 3500 (“Unanimity”) which explained to the jury the requirement of unanimity.
The instruction read: “The defendant is charged with ASSAULT ON A POLICE OFFICER in violation of Penal Code section 245(c) in Count 4. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.”
Defense counsel’s closing argument was multi-faceted. First, she urged defendant had not even been in the van. Next, she questioned whether the van had even hit Officer Vejar’s flashlight as the officer had claimed. Lastly, she posited that the van merely accidentally rolled down the hill toward the officer.
The jury’s verdict, of course, does not indicate the specific factual basis of its finding that the People had proven guilt beyond a reasonable doubt.
At the sentencing hearing, the trial court noted that substantial evidence supported the assault conviction.
The trial court stated, in pertinent part: “Now, I know that there may be an argument that defendant wasn’t trying to run over anybody, but I think the substantial evidence in this case supports the conviction that as [Officer Vejar] was standing in the street, the van comes speeding towards him, doesn’t slow down, . . . and Officer Vejar said it struck him. . . . [T]hen the vehicle goes up the hill, a very steep hill, both the defendant and the co-defendant take flight from the vehicle, which reaches a dead end and the vehicle rolls back downwards and almost hits the officers that are pursuing them.”
2. Analysis
“[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.) Consequently, “any operation of a vehicle by a person knowing facts that would lead a reasonable person to realize a battery will probably and directly result may be charged as an assault with a deadly weapon.” (People v. Wright (2002) 100 Cal.App.4th 703, 706.) Because the test is objective, the defendant “need not be subjectively aware of the risk that a battery might occur.” (People v. Williams, supra, 26 Cal.4th at p. 788.) However, “mere recklessness or criminal negligence is not enough [citation], because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know [citation].” (Ibid., fn. omitted.) The trial court submitted the pattern instruction, CALCRIM No. 860, explaining the elements of the offenses.
To a certain extent, defendant, relying upon People v. Smith (1997) 57 Cal.App.4th 1470 (Smith), appears to urge that the instruction was deficient because it permitted a conviction based upon negligence. Not so. The instruction is based upon and includes language from People v. Williams, supra, and People v. Wright, supra, the holdings of which are set forth above. In particular, the instruction explained that the jury must find that defendant acted “willfully” (defined as doing an act “willingly or on purpose”) and “[w]hen [he so] acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.” If defendant believed that instruction was inadequate for this case, it was his obligation to request the trial court to modify it. “A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
Defendant first urges that “the ‘flashlight incident’” cannot constitute the assault because “[t]he record . . . provides no evidence that [he] ever saw Vejar standing in the middle of the road.” In addition, he argues there was “no evidence [he intended] to commit violence upon Vejar” when he drove the stolen van past the officer. We disagree. Officers Campos and Vejar had parked their marked police vehicle perpendicular to the street on which defendant was driving the stolen van as he attempted to evade the police. As defendant approached, Officer Campos used his flashlight to signal defendant to stop. Instead of slowing or stopping the van, defendant accelerated in the direction of Officer Vejar. Defendant’s van came very close to Officer Vejar; the officer had to jump out of the way to avoid being hit and the side view mirror on the van struck the flashlight he was holding. This constitutes more than substantial evidence from which a reasonable trier of fact could infer that defendant saw Officer Vejar, a uniformed police officer. With that knowledge and, in an effort to avoid apprehension, defendant ignored Officer Campos’s request to stop and, instead, intentionally drove at Officer Vejar, knowing that a battery upon him would probably and directly result from that action.
Defendant attempts to avoid the force of this conclusion by arguing that there was no direct evidence that the area was illuminated sufficiently so that he could see Officer Vejar., The argument misses the mark. There was ample circumstantial evidence that there was adequate lighting to see the officer. Erroa testified that immediately before the carjacking, he had looked up the street and had seen the parked police car, 30 to 50 meters away. If the area was lit enough to permit an observation of the officers’ patrol car from that distance, it is reasonable to infer that as defendant approached in the van, there was adequate illumination of Officer Vejar standing next to the police car. Furthermore, when defendant had stolen Erroa’s van only moments earlier, its headlights were activated. It is reasonable to infer that those lights were still on because defendant’s action of driving around the police car indicated that he did see the car and the officers. From all of these facts, a reasonable jury could infer that the area was sufficiently illuminated so that defendant could see Officer Vejar.
Defendant did not testify.
Defendant’s belated request made in his reply brief that we take judicial notice of the Old Farmer’s Almanac to establish that the sun set at 4:44 p.m. that day is denied. The record already establishes that it was dark when the crimes were committed. For instance, Erroa testified that defendant stole the van at 6:30 p.m. and that it was “dark” then.
As set forth earlier, there were street lights and a police helicopter was shining its spotlight on the area. In addition, the headlights and spotlights on the parked police vehicle were activated, albeit pointing perpendicular towards the homes.
As for when the van rolled down the hill, defendant argues that “[t]here was no evidence that he was aware of the facts that would lead a reasonable person to realize that a battery would probably result from his conduct.” He claims that “there was no evidence that he knew a vehicle had to be in park, and with its emergency brake on, to keep from rolling down the . . . hill” and there was no “evidence of what gear the van had been in, and whether the brake was on, when its occupants jumped out and ran up the hill” or whether “the engine had been turned off before they left.” This approach completely overlooks the context in which the events transpired. Defendant and Montano were fleeing the police. Defendant had just driven by the patrol car, almost striking Officer Vejar. At the top of the hill, defendant and his accomplice jumped out of the van and ran off. A reasonable jury could infer in light of all of the antecedent events, including the dangerous actions taken to prevent capture, that when defendant jumped out of the van, he intentionally did not set the brake or put the van in park because, in one more effort to avoid capture, he intended to stymie the pursuing officers by having the van roll down hill and strike them.
B.
THE PRIOR CONVICTIONS
The information alleged two prior convictions: a 1999 California robbery conviction and a 1995 Washington robbery conviction. The trial court found defendant had suffered both convictions. On appeal, defendant only challenges the sufficiency of the evidence to support the Washington conviction. In particular, he claims that the conviction cannot qualify as a “strike” because unlike California, the Washington statutory scheme does not require that the robber intend to permanently deprive the victim of property. The argument is not persuasive. We conclude that substantial evidence was presented to the trier of fact that when defendant committed the Washington robbery, he intended to permanently deprive the victim of the property.
1. Factual Background
To establish the 1995 Washington conviction, the prosecutor offered several certified documents, three of which are relevant to this appeal.
The first is the charging information, dated January 6, 1995. It alleged, in pertinent part, that on December 12, 1994, defendant committed first degree robbery when he “did unlawfully, with intent to deprive, take and retain personal property, lawful money of the United States and cigarettes, from the person and in the presence of Hank S. Cooley, against such person’s will, by use or threatened use of immediate force, violence and fear of injury to Hank S. Cooley, and in the commission of and immediate flight therefrom, [he] displayed what appeared to be a firearm or other deadly weapon, to wit: a handgun.” (Italics added.)
The second is a five-page police report written by the investigating officer. Among other things, he wrote that the robbery victim (Cooley) would testify that defendant “robbed [him] of money and merchandise under verbal threat and visual threat of a weapon.” The report also detailed the apprehension of the suspects and the recovery of the stolen money and cigarettes.
The third is defendant’s February 15, 1995 written guilty plea to the robbery. The plea is a pre-printed six-page form entitled “Statement of Defendant on Plea of Guilty to a Felony.” Specific information (e.g., name of defendant, defendant’s date of birth, name of attorney, charge, and sentence) is inserted by hand. The plea admitted, among other things, that defendant was charged with “first degree robbery” and that the elements of that crime were “contained in the information.” (Italics added.) The italicized phrases were inserted by hand. Under a heading that asked defendant “to state briefly in [his] own words what [he] did that makes [him] guilty of this crime,” defendant wrote: “I did rob the store.”
When the People moved their exhibits into evidence, the trial court asked: “Any objection to the receipt [of these exhibits]?” Defense counsel responded: “No, Your Honor.”
First, the trial court found beyond a reasonable doubt that defendant was the person who suffered the Washington robbery conviction. Next, after reviewing the Washington statute governing robbery, the trial court “[found] that the prior conviction that the defendant suffered in the State of Washington qualifies as a strike in California.”
2. Analysis
When defendant was convicted by plea of robbery in Washington, the statutory definition provided, in relevant part: “A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.” (§ 9A.56.190.) By that time, the Supreme Court of Washington had interpreted a 1975 revision to its state criminal code as deleting the common law requirement of intent to “permanently deprive” from its theft offenses. (State v. Komok (Wash. 1989) 783 P.2d 1061, 1063-1064.) Defendant, noting that in California the crime of robbery requires the specific intent to permanently deprive another of property (see, e.g., People v. McGee (2006) 38 Cal.4th 682, 688), argues that his Washington conviction was not the equivalent of a prior serious felony conviction in California and thus could not be used as a strike. Defendant’s argument fails because the trial court was not limited to comparing the two states’ statutory definitions of robbery to determine if the Washington conviction qualified as a strike.
“A conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a crime to be deemed a serious or violent felony in this state. [Citations.]” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128.) The focus of the inquiry is “whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California serious felony offense.” (People v. Myers (1993) 5 Cal.4th 1193, 1195, italics added.)In that regard, the trier of fact (here, the trial court) could “look to the entire record of conviction to determine the substance of the prior conviction.” (People v. Reed (1996) 13 Cal.4th 217, 223.) Hence, “the prosecution [can] go behind the statutory elements of the [sister state] crime to prove that defendant’s actual crime constituted a felony under California law.” (People v. Riel (2000) 22 Cal.4th 1153, 1204-1205, italics added.)
Anticipating this analysis, defendant argues that the documentary evidence offered to establish the facts underlying his commission of the Washington robbery (and therefore his intent to permanently deprive the victim of property) “was rank hearsay and therefore inadmissible.” As framed by his appellate briefs, this argument focuses on only one document: the five-page police report which included an interview with the victim. This approach fails for two independent reasons.
The first reason is that in the trial court defendant failed to raise any hearsay objection to that document (or any of the other evidence proffered by the People). In fact, defense counsel acquiesced to the admission of all exhibits offered by the prosecutor. This constitutes a forfeiture of any right to advance a claim of evidentiary error on appeal. (Evid. Code, § 353, subd. (a); People v. Morris (1991) 53 Cal.3d 152, 187-188; compare People v. Reed, supra, 13 Cal.4th at pp. 220-221 [appellate court reviews evidence offered to establish prior conviction where the defendant raised hearsay and lack of foundation objections in the trial court].)
At oral argument, defendant, for the first time, cited Shepard v. United States (2005) 544 U.S. 13 (Shepard) to support his claim that the trial court could not consider the police report in determining whether the Washington conviction constituted a serious felony. In Shepard, the issue was interpretation of a federal statute, the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)). The ACCA imposed a mandatory sentence on a defendant who had previously been convicted of a “violent” felony. In Shepard, the defendant had been convicted of burglary in Massachusetts, a state which included in its definition of burglary an unlawful entry into a boat or a car. However, under federal decisional law, only an unlawful entry into a building or other structure could constitute a “violent felony” under the ACCA. Over the defendant’s objections, the prosecutor entered into evidence the Massachusetts police reports to establish the nature of the burglary. (Id. at p. 17.) Shepard held this was error. As a matter of interpreting the federal statute, Shepard concluded that the trial court could consider only the charging document, a plea agreement or transcript of the plea in which the underlying facts are confirmed, or other comparable records in determining whether the defendant had been convicted of a violent felony. (Id. at p. 26.)
Taylor v. United States (1990) 495 U.S. 575, 599.
U.S. v. Shepard (D. Mass. 2002) 181 F.Supp.2d 14, 27 and U.S. v. Shepard (1st Cir. 2003) 348 F.3d 308, 310-311 & 314.
Shepard does not assist defendant. It is clearly distinguishable because there, unlike this case, the defense objected to the evidence offered to prove the nature of the prior conviction. Further, People v. McGee, supra, 38 Cal.4th 682 concluded that Shepard has little, if any, application to our state. It explained: “The issue before the high court in Shepard was resolved as a matter of [federal] statutory interpretation, and the court did not purport to decide whether a state is constitutionally precluded from permitting a court to conduct the kind of examination of the record of a prior criminal proceeding that [is conducted in this state] in determining whether a conviction constitutes a qualifying prior conviction for purposes of enhancement under a state sentencing statute.” (Id. at p. 708; see also People v. Gonzales (2005) 131 Cal.App.4th 767, 773 & 775 [setting forth multiple reasons why Shepard does not apply to a California trial court’s determination whether a prior conviction qualifies as a strike].)
It is therefore clear that Shepard does not constitute an absolute constitutional bar to using police reports to establish that a conviction was for a serious felony. Instead, whether a police report can be used is an issue of state law, including the rules of evidence. But here, as explained above, defendant failed to object to the admission of the police report, thereby forfeiting any claim under state law that the police report was improperly considered.
We now turn to the second reason why we reject defendant’s argument that there was insufficient proof that the Washington conviction would constitute a robbery in California: the other documents offered by the prosecution established that defendant entertained the intent to permanently deprive the victim of the stolen property. The charging information alleged that defendant took and retained the money and cigarettes with the intent to deprive. Defendant’s signed guilty plea conceded those allegations in a handwritten phrase. From those two documents alone, the trial court “could readily infer defendant’s intent to deprive permanently even if the statute did not require it.” (People v. Riel, supra, 22 Cal.4th at p. 1206.) One normally takes money to spend and cigarettes to smoke, not merely to possess temporarily, particularly when, as here, the initial taking is unlawful. We therefore conclude that, viewing the record in the light most favorable to the trial court’s finding, substantial evidence supports its determination that the Washington conviction qualifies as a strike.
At oral argument, defendant raised for the first time the point that page five of the six-page guilty plea contains the statements: “I plead guilty to the crime of first degree robbery as charged in the Amended Information. I have received a copy of that Information.” Defendant further noted that the record does not contain an amended information. From that, he argued that there is no showing that the crime to which he pled guilty included the allegation (found in the original information) that he had taken cigarettes and money. We are not persuaded by this speculative argument. For one thing, the phrase about an amended information is part of the pre-printed form and, in all likelihood, is simply included to cover situations in which the prosecution, as part of a negotiated disposition, files an amended information to charge a offense different from the one originally alleged. There is no reason to believe that in the six weeks between the filing of the original information and defendant’s entry of a guilty plea, an amended information was filed, particularly because defendant pled guilty to the charge initially alleged. And in light of all of the facts in the police report, it strains credulity to suggest that an amended information would have been filed simply to re-characterize the stolen property. Because page one of the guilty plea includes the handwritten phrases that defendant was charged with “first degree robbery” and the elements of that crime were “contained in the information,” there is substantial evidence from which a reasonable trier of fact could infer that defendant stole money and cigarettes and did so with the intent to permanently deprive.
C.
DEFENDANT’S SENTENCE
Defendant contends that his sentence of 105 years to life, imposed as a result of the Three Strikes law, constitutes cruel and unusual punishment under both the state and federal constitutions. The contention has been forfeited, and, in any event, lacks merit.
1. Factual Background
Immediately after the bench trial in which the prior convictions were found to be true, the court turned to defense counsel’s Romero motion. The written motion urged that were the trial court to find the two prior convictions to be true, it was in the interests of justice to strike at least one conviction. The motion gave four reasons: (1) defendant’s lifelong drug addiction; (2) defendant possessed only a plastic gun during the crimes; (3) no one was injured during his crime spree; and (4) the first strike was 12 years old. The prosecutor opposed the motion on multiple grounds, including the fact that only several months earlier, defendant had been convicted by jury of two other robberies in case No. VA086405. As will be set forth below in detail, the trial court denied the motion to strike.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The prosecutor provided the trial court with a minute order from that case, reflecting the convictions.
The court proceeded to sentence defendant as follows. On each of the four counts, the court imposed a sentence of 25 years to life, plus two five-year prior conviction enhancements (§ 667, subd. (a)(1)) but then stayed sentence on count 2 (robbery of Erroa) pursuant to section 654. This resulted in a total sentence of 105 years to life. The court ordered this sentence to be served consecutive to that imposed in case No. VA086405. (§ 669.) Defense counsel never argued that the sentence constituted cruel or unusual punishment.
2. Discussion
“Cruel and unusual punishment arguments, under the federal or California tests, require examination of the offense and the offender.” (People v. Norman (2003) 109 Cal.App.4th 221, 229.) This is a fact-based inquiry that must first be litigated in the trial court. Here, defendant’s failure to raise this point below constitutes a forfeiture of any right to pursue it on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) On that basis alone, we can, and do, reject the contention.
Nonetheless, we shall also consider and reject the contention on the merits for two separate reasons. The first is to forestall any future claim that trial counsel was ineffective for failing it raise it below. (People v. DeJesus, supra, 38 Cal.App.4th at p. 27.) The second is that the trial court’s reasons for denying the Romero motion—a motion which essentially advanced the same arguments now presented to argue the sentence constitutes cruel and unusual punishment—establish why the sentence does, in fact, pass constitutional muster. We therefore begin by setting forth the trial court’s ruling on the Romero motion. The judge explained:
To prevail upon a claim of ineffective representation, a defendant must establish both that (1) trial counsel’s performance was deficient under an objective standard and (2) there is a reasonable probability that but for that alleged failing, there would have been a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 686.) In this case, defendant cannot establish those two elements.
“The court is directed under People v. Williams [17 Cal.4th 148] to look at the defendant’s prior conviction, the current offense, and the background, character and prospect of the defendant. And in doing so, the defendant has altogether six convictions that relate to robbery and – so in looking at the totality of the defendant’s background, character and prospect, while he may be addicted to drugs, it causes him to be a recidivist in a manner that the Legislature has stated required harsh punishment because he is committing offenses that fall under the serious and violent felony category. . . .
“In this case [defendant] has a propensity to commit robberies, and because of that his background, character and prospect falls squarely within the legislative intent to more harshly punish those and who commit serious and violent felonies.
“The current offense, as I look at it, while in the initial robbery the item used as a weapon was a fake gun, it is still a very brazen act to go into a store, a mom and pop store and to rob that mom and pop store and the amount of money taken tells me how difficult it is for those people to make money in that area because I think it was just like $40 or $60 in the cash register. These people are not making a lot of money running these stores in this very bad neighborhood.
“Here come the defendant and he takes them of their money. Then afterwards he, I believe, probably thought he got away with it, but the victim was behind him, followed him, flagged it to the police, and then finally as the car is near the on-ramp for – the Avenue 26 on-ramp to the 110 freeway, a police car comes right opposite side of them where the flight takes place. He doesn’t stop. There is no stopping of the vehicle. It’s in full flight, crashes, and then once crashing, they don’t remain. They don’t submit. They run. They run and they commit another crime. They commit a crime of robbery, slash, carjacking.
“The defendant is seated in the front driver’s seat when the victim [Erroa] comes upon the vehicle, opens the door, the defendant says, ‘I’ll kill you,’ and makes a slashing motion on his neck, takes off. That doesn’t end it. The police vehicle is in the middle of the road because the police officers know that the suspects are in the neighborhood, but instead of submitting, the defendant attempts to run over the officer.
“Now, I know that there may be an argument that defendant wasn’t trying to run over anybody, but I think the substantial evidence in the case supports the conviction that as the officer was standing in the street, the van comes speeding towards him, doesn’t slow down, . . . and Officer Vejar said it struck him. . . . Then the vehicle goes up the hill, a very steep hill, both the defendant and the codefendant take flight from the vehicle, which reaches a dead end and the vehicle rolls back downwards and almost hits the officers that are pursuing them.
“So you have these various parts, subparts in this case that shows me that [defendant] was very much out of control and was not caring about how he hurt other people. So it appears to me that the circumstances of the current offense do not bode well for him. It’s not the kind of case where I can find that it’s outside the legislative intent to strike a strike.
“And then, finally, his prior convictions. They’re, again, for crimes of robbery: [the] one in Spokane, Washington [was] of a store similar to what happened here. . . . I don’t really find anything about his prior convictions that falls outside of the legislative intent either.
“And so in analyzing the case as I am supposed to do under People v. Williams, I do not find anything here that substantiates my use of discretion to strike the strikes against the defendant or for the defendant in his favor. So I respectfully decline to do that. I will not be striking any strikes in this case.”
The federal constitutional prohibition on cruel and unusual punishment “contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]” (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing).) This principle only prohibits sentences that are grossly disproportionate to the crime. (Id. at pp. 23-24.) “The gross disproportionality principle reserves a constitutional violation for only the extraordinary case.” (Lockyer v. Andrade (2003) 538 U.S. 63, 77.) In making that determination, a court looks at the gravity of the offenses compared to the harshness of the penalty, the defendant’s criminal history, and the state’s legitimate “public-safety interest in incapacitating and deterring recidivist felons.” (Ewing, supra, 538 U.S. at p. 29.) Under this standard, defendant’s sentence clearly passes constitutional muster. Defendant committed very serious crimes; two robberies, a carjacking, and assault with a deadly weapon. In his effort to escape, defendant (and his accomplice) seriously endangered others. Consequently, defendant’s claim that “it should be beyond reasonable debate that his sentence is extremely harsh when measured against the triggering offenses” fails. Furthermore, defendant has a lengthy criminal history (including multiple robbery convictions) and has failed all attempts at reform. Given that record, his claim of drug addiction carries little, if any, weight. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) The Three Strikes law under which he was sentenced “reflects 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.” (Ewing, supra, 538 U.S. at p. 30.) In sum, this case does not constitute “‘the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ [Citation.]” (Ibid.) The fact that defendant’s sentence is the functional equivalent of a life sentence does not change our conclusion. (People v. Ayon (1996) 46 Cal.App.4th 385, 396-401.)
Defendant’s violent and dangerous crime spree distinguishes this case from People v. Carmony (2005) 127 Cal.App.4th 1066 upon which he so heavily relies. There, the defendant was convicted of failing to update within five working days of his birthday his registration as a sex offender. Because he had suffered three serious or violent felony convictions, he received a term of 25 years to life. A divided Court of Appeal concluded that under those circumstances, the sentence constituted cruel and unusual punishment.
Defendant’s adult criminal history is lengthy and of increasing seriousness. In July 1994, he was convicted of possession of a controlled substance (Health & Saf. Code, § 11350). Less than six months later, he committed the Washington robbery and was sentenced to 34 months in prison. After his release and return to California, defendant committed another robbery in 1998 and was sentenced to a four-year term. He was on parole from that conviction when he committed both the present crimes and the two robberies in case No. VA086405. Before this case was tried, a jury convicted defendant of the robberies in case No. VA086405 and the trial court imposed a sentence of 65 years to life.
A sentence violates the state constitutional ban on cruel or unusual punishment when it is so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424-427; People v. Dillon (1983) 34 Cal.3d 441, 479.) The court: (1) considers the nature of the offense and the offender; (2) compares the punishment to other punishments imposed in California for more serious offenses; and (3) compares the punishment to punishments imposed by the other jurisdictions for the same offense.
As for the nature of the offense and the offender, we have already explained how the sentence is proper based upon the current offenses, defendant’s recidivism, and his failure at all prior efforts to rehabilitate. (See, e.g., People v. Ayon, supra, 46 Cal.App.4th at pp. 399-400.)
Defendant next urges that his present Three Strikes sentence is constitutionally “disproportionate when compared with punishment in California for other, more serious crimes” such as second degree murder and voluntary manslaughter. This argument misses the mark. Defendant is being punished not just for the present offenses but for his recidivism. That approach passes constitutional muster. “Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.)
Lastly, defendant urges his “sentence is also disproportionate when compared with punishment in other jurisdictions for the same crimes [because] the Three Strikes law is the most stringent in the nation.” Even if we were to find that California’s “punishment scheme is among the most extreme, [that finding would] 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.” (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) Defendant also makes the passing argument that only “two states other than California . . . permit the third strike to be a felony that, alone, could not have constituted either of the first two strikes.” That fact, if it is indeed correct, is beside the point in this case because each of the four crimes of which defendant was convicted is, in fact, a “serious felony” within the meaning of the Three Strikes law and thus could have constituted a strike. (§ 1192.7, subd. (c).)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J, SUZUKAWA, J.
Furthermore, Smith, supra, upon which defendant relies, predates People v. Williams, supra, and, according to the appellate court which decided Smith “is at odds with” the now-controlling Supreme Court authority found in People v. Williams, supra. (People v. Wright, supra, 100 Cal.App.4th at p. 705.)
For one thing, trial counsel’s failure to raise a “cruel and unusual” objection was not unreasonable given the trial court’s unequivocal rejection of her Romero motion. She could have rationally concluded that nothing would have been gained by simply recasting the argument in constitutional terms. Trial counsel is not required “to indulge in idle acts to appear competent.” (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
For another thing, defendant cannot establish the failure to advance that argument was prejudicial. As we explain, given the trial court’s reasons for denying the Romero motion, defendant’s record, and the facts of the crimes, there is no reasonable probability that the court would have reduced the sentence even if defense counsel had explicitly argued that the sentence of 105-years to life was cruel and unusual.