Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. KA085848, Mike Camacho, Judge.
Jennifer A. Mannix, 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, Blythe J. Leszkay and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Introduction
Defendant Ernesto Castro appeals from the judgment entered following his convictions for transportation of heroin, possession of heroin with the intent to sell, and possession of methamphetamine. As an initial matter, the trial court having granted Castro’s motion for pretrial discovery of police personnel records under Pitchessv. Superior Court (1974) 11 Cal.3d 531 (Pitchess) but having concluded that no discovery materials existed, Castro requests that we conduct an independent review to determine whether any records should have been disclosed. We have done so and find no materials were erroneously withheld.
Castro raises several other claims of error. First, he contends that the trial court erred in denying his motion for self-representation. We find that the motion, brought the day trial was set to begin, was untimely, and that the court did not abuse its discretion in denying it. Second, Castro asserts that the court abused its discretion in denying his motion to strike one of his prior strike offenses, a 1998 conviction for assault with a deadly weapon, for purposes of sentencing under the “Three Strikes” law. Failing to find the type of extraordinary circumstances that would take Castro outside the spirit of the Three Strikes law, we find no error in the denial of his motion to strike. Finally, Castro argues that his sentence of 25 years to life in prison for his current narcotics offenses violates the federal and state prohibitions against cruel and unusual punishment. Castro has forfeited this claim because it was not raised below. Nonetheless, we consider and reject his argument on the merits. We thus affirm the judgment.
Factual and procedural background
Castro was arrested after he was found in possession of a sizeable amount of heroin and a small amount of methamphetamine. According to the arresting officer, Castro reported that the Mexican Mafia, a notorious California prison gang, had ordered him to transport the drugs, and he believed that he would have been killed if he did not comply.
On July 2, 2009, Castro was charged with three felony counts for (1) transportation of heroin (Health & Saf. Code, § 11352, subd. (a)); (2) possession of heroin for sale (Health & Saf. Code, § 11351); and (3) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The information also alleged a street gang enhancement. (Pen. Code, § 186.22, subd. (b)(1)(A).) It was further alleged that Castro had three prior prison commitments and two prior strike offenses under sections 1170.12, subdivisions (a)-(d), and 667, subdivisions (b)-(i).
All subsequent undesignated statutory references are to the Penal Code.
Pretrial Proceedings
The court arraigned Castro on July 21, 2009, and at that time Castro rejected a plea offer of 18 years in prison. Trial was set for August 31, 2009, with both sides estimating two to three days for the trial.
On August 27, at Castro’s request, the court continued the jury trial to October 14. On September 15, Castro filed a Pitchess motion seeking the discovery of information on any acts of dishonesty, false testimony, or falsification of police reports involving the arresting officer. On October 8, the court granted that motion and conducted an in camera hearing with the custodian of records for the West Covina Police Department. The court concluded there was no discoverable material concerning the arresting officer.
On October 13, upon the parties’ joint motion to continue the matter, the court continued the trial date to November 19. On November 16, Castro moved for another continuance so that his counsel could research a possible suppression motion and because his counsel had a conflicting trial. On November 19, the court continued the trial for one more day, ordered a defense witness to be removed from jail so that he could appear the following day, and ordered a panel of 50 prospective jurors. The court set a hearing on Castro’s pending suppression motion for the following morning.
Marsden and Faretta Motions
The next morning, Friday, November 20, Castro made a motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) for new defense counsel based on his disagreements with his counsel as to trial strategy. His counsel acknowledged he had refused Castro’s request to file a motion to strike the gang enhancement allegation; counsel did not believe such a motion had merit, given that Castro himself interjected the gang allegation into the case by telling the arresting officer that the Mexican Mafia had ordered him to transport the heroin found on his person. In addition, his counsel refused to subpoena a witness who could testify that Castro was a heroin addict; Castro believed such testimony would support a defense that he possessed the heroin for personal use, not for sale. However, his counsel believed he should not pursue this defense because (1) a conviction for possession for personal use would still trigger Three Strikes penalties; (2) Castro would have to take the witness stand in order to raise this defense, which his counsel believed would have damaging consequences; and (3) in order to credit Castro’s story, a jury would have to disbelieve the arresting officer’s testimony that Castro told him that he had been ordered by the Mexican Mafia to transport the drugs, and it was unlikely that a jury would find Castro more credible than the officer. Instead, his counsel believed Castro should pursue a duress defense, relying upon his statements to the arresting officer about the order from the Mexican Mafia and his fear of retribution if he did not comply. The court denied Castro’s Marsden motion, agreeing with defense counsel that a duress defense was more suitable than a personal use defense given the circumstances, and concluding that counsel’s representation of Castro was “extraordinary.”
Immediately thereafter, Castro moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). The court indicated it would incorporate the arguments Castro made in connection with his Marsden motion and again reiterated that Castro’s chosen strategy was “not the way to go” because even if the jury believed him, he would receive a life sentence. The court stated: “Why you want to do that is beyond me. I’ve taken that into consideration in determining whether or not you have the ability to represent yourself in this case and [sic] making all the wrong decisions.” The court then asked if Castro wished to tell the court anything else in connection with his request for self-representation, and Castro responded “no.” When the court inquired whether Castro would be ready for trial if his request to represent himself were granted, Castro responded, “I would ask the court if I could get a continuance for at least 60 days so I could go to the law library and look up some case laws.” The court replied, “So what you’re telling me is that even in the event the court recognizes your right to represent yourself and granted that, you’re certainly not ready to proceed today even though we have a jury ordered up to hear your case... ?” Castro responded that this was correct.
The court then made its ruling as follows: “I have to even as a matter of law deny your request to represent yourself. Number one is because it’s an untimely motion. It’s made at the day of trial, when jurors have been ordered. Number two, even if I granted it, you certainly, by your own words, are not ready to proceed. So I cannot and will not grant the Faretta motion and allow you, Mr. Castro, to represent yourself. I’m doing that in mind with what I know of your case at least as outlined by your attorney, Mr. Urias, and his desire to pursue a course of strategy that, quite frankly, is probably the best you can pursue right now. So I have your interest in mind in denying these motions because I want you to receive the best representation possible that you have available to you, and Mr. Urias is the man to do that. So I’d rather he fight for your rights than you personally fighting for your rights in making what, quite frankly, is the wrong decision. [¶] Your Faretta motion is denied as well for the reasons stated; more importantly untimely and you’re not ready to proceed even if I granted it.”
Having denied Castro’s Faretta motion, the court conducted a hearing on Castro’s suppression motion before denying that motion as well. The court recessed for lunch, with trial to commence in the afternoon session.
Trial
After the lunch break, a prospective jury panel was sworn in and voir dire began. Including voir dire, the trial lasted four days, with the prosecution calling five witnesses and Castro testifying on his own behalf as the sole defense witness.
The arresting officer testified that while on routine patrol he stopped a car in which Castro was a passenger and arrested Castro on an outstanding warrant. While the officer was conducting a pat-down search on Castro, he noticed that Castro appeared to be extremely nervous when the officer was patting down the area near his rear pants pocket, and he was clenching his buttocks together. Castro was transported to the police station and a strip search was conducted. The search revealed Castro was hiding in his buttocks a bag containing 21.5 grams of heroin and another bag containing.5 grams of methamphetamine. After Castro was advised of his Miranda rights, he told the arresting officer that he was an active member of the Lomas street gang as well as an associate of the Mexican Mafia. He said he had received a phone call from a Mexican Mafia member ordering him to pick up narcotics from a house in Diamond Bar and transport them to a house in El Sereno. He told the officer that the Mexican Mafia would probably kill him if he did not deliver the narcotics as ordered. The arresting officer opined at trial that based on his training and experience, the amount of heroin found on Castro (enough for 378 to 945 doses, depending on the size of the dose), and Castro’s statements after his arrest, Castro possessed the heroin for sale.
Included among the prosecution’s other witnesses were gang experts who testified that the main objectives of the Mexican Mafia are narcotics sales, murder, and intimidation. The gang’s power base is in the California prison system, but it uses street gangs, including the Lomas gang, to do its bidding outside of prison. The Mexican Mafia routinely intimidates members of street gangs by communicating that gang members will be murdered when they inevitably land in prison unless they do the bidding of the Mexican Mafia while on the outside. Based on Castro’s tattoos, Castro appeared to be a Lomas gang member with connections to the Mexican Mafia who was transporting the heroin for the benefit of the Mexican Mafia.
In his testimony, Castro admitted he was a Lomas gang member, although he claimed to be an inactive member, and he denied any affiliation with the Mexican Mafia. He denied telling the arresting officer that the Mexican Mafia had ordered him to transport the heroin. Rather, he testified that he possessed the heroin for his personal use.
Despite Castro’s testimony that he possessed the drugs solely for his personal use, Castro’s counsel argued in his closing that Castro was transporting heroin at the Mexican Mafia’s orders because he was afraid he would be killed if he refused. No instruction on the duress defense was given to the jury. Instead, the court instructed the jury on the defense of necessity, indicating that the jury need not find Castro guilty if it found that “he acted in an emergency to prevent a significant bodily harm or evil to himself, ” that he lacked a legal alternative, that his acts did not create a greater danger than the one avoided, and that Castro reasonably believed that the act was necessary to prevent the threatened harm.
The jury found Castro guilty on all three counts. The jury further concluded that he possessed and transported the heroin for the benefit of, at the direction of, or in association with a criminal street gang with the intent to assist in its criminal conduct. (§ 186.22, subd. (b)(1)(A).)
Sentencing
Castro waived his right to have a jury trial on his three prison priors and two prior strike offenses. Before he was sentenced, he moved under People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero), to strike his 1998 assault conviction for purposes of sentencing under the Three Strikes law. (§ 667, subds. (b)-(i); § 1170.12, subds. (a)-(d); § 1385.)
In ruling on the Romero motion, the court noted that Castro was not the shooter in the 1998 incident resulting in the assault conviction; his brother was the one who fired a gun at Castro’s ex-girlfriend, at Castro’s urging. However, the court found, “in terms of striking the strike, it’s not so much the substance of the underlying offense. The question is whether, in light of the nature and circumstances of the present offense and the prior offenses, be they serious or violent, and the particulars of the defendant’s background and his prospects, whether or not he’s deemed to be either outside the spirit of the strike law or within the spirit of the strike law. Romero consideration is typically reserved for those individuals who – although [they] have a legitimate prior qualifying strike conviction, since that conviction, they had led a life free essentially of subsequent violations, be they misdemeanor, felony, violent, or serious felonies. When the court reviews the history of Mr. Castro, after his conviction in 1998 for being the accomplice to that assault with a deadly weapon, did he remain free of any police contact, be they arrests, convictions, or otherwise? And unfortunately for Mr. Castro he did not. After being sentenced to state prison for that assault with a firearm offense, he was paroled evidently in November of 2003 but before that last parole date, he was violated numerous times because of additional and subsequent violations including burglary for which he – although he received probation as a result of a conviction while being on parole for the assault with a firearm, he didn’t even successfully complete probation without violation. 2002, I see he was arrested or cited for misdemeanor violations. In 2004, battery upon a spouse that occurred which again, although he was treated as a misdemeanor offender, he was nonetheless convicted. 2004, brandishing a firearm or dangerous or deadly weapon, again misdemeanor treatment. Then, 2005, burglary. Again the robbery resulting in a state-prison commitment. Evidently the offense for which he now stands convicted is the narcotic violation. Mr. Castro obviously did not remain free of subsequent police contacts, arrests, or convictions. And that means he falls within the spirit of the strike law rather than outside of the spirit of the strike law. I wish he had remained free of any subsequent convictions but unfortunately he did not. This court certainly cannot and will not strike the prior convictions based on Romero consideration.” The court thus denied Castro’s Romero motion.
The court sentenced Castro to the minimum available term of 25 years to life in prison for the base offense of transportation of heroin. The court imposed and stayed the sentences for the three prison priors and the gang enhancement. As to the offense of possession of heroin for sale, the court imposed a sentence of 25 years to life in prison, but stayed the sentence under section 664 because it was the same narcotic involved in the base offense. As to the offense of possession of methamphetamine, the court imposed a sentence of 25 years to life, but exercised its discretion to have the sentence run concurrently rather than consecutively. Castro thus faced a total sentence of 25 years to life.
We note that prison priors under section 667.5, subdivision (b), cannot be stayed. They must be served unless stricken. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) To effectuate the trial court’s intent, we order the prison priors stricken.
This timely appeal followed.
Discussion
I. Pitchess Motion
Castro first requests that we conduct an independent review of the sealed transcript of the in camera hearing conducted by the trial court pursuant to Castro’s Pitchess motion. Castro asks us to determine whether the court should have ordered the disclosure of some of the materials in the arresting officer’s personnel records because they are relevant to Castro’s ability to defend against the charges he faced.
Under Pitchess, “on a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.]... If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], ‘the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.”’ [Citations.]” (People v. Gaines (2009) 46 Cal.4th 172, 179.) “On appeal, this court is required to review the ‘record of the documents examined by the trial court’ and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer’s personnel records. [Citations.]” (People v. Rodriguez (2011) 193 Cal.App.4th 360, 366.)
The Attorney General does not oppose Castro’s request that we independently review the sealed transcript of the in camera hearing to ensure that the arresting officer’s records contained no discoverable material. Having conducted such a review, we find no error in the trial court’s determination that the officer’s records contained no discoverable records.
II. Faretta Motion
Castro contends that the trial court erroneously denied his motion for self-representation made just prior to trial.
A criminal defendant has a right to self-representation under the Sixth Amendment, and pursuant to the United States Supreme Court’s decision in Faretta, supra, 422 U.S. 806, a trial court has no discretion to deny a defendant’s motion invoking the right “if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently.” (People v. Lynch (2010) 50 Cal.4th 693, 721 (Lynch).) The failure to grant a timely Faretta motion results in appellate reversal of a judgment of conviction even if the defendant cannot show that the trial was unfair. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8.)
On the other hand, a Faretta motion may be denied if it is untimely. (Lynch, supra, 50 Cal.4th at p. 722.) In Lynch, supra, the California Supreme Court recently reiterated that while motions for self-representation brought “long before trial” are timely (id. at p. 723), the court has “held on numerous occasions that Faretta motions made on the eve of trial are untimely.” (Id. at p. 722; see id. at pp. 722-723, citing People v. Frierson (1991) 53 Cal.3d 730, 740, 742 [motion untimely when made on September 29 and trial scheduled for October 1]; People v. Valdez (2004) 32 Cal.4th 73, 102 [motion untimely when brought “moments before jury selection was set to begin”]; People v. Horton (1995) 11 Cal.4th 1068, 1110 [Faretta motion untimely when made on date scheduled for trial]; People v. Clark (1992) 3 Cal.4th 41, 99 (Clark) [motion untimely when brought on “eve of trial”]; but see People v. Windham (1977) 19 Cal.3d 121, 128 , fn. 5 (Windham) [a “showing of reasonable cause” for lateness of motion brought the day before trial may excuse delay].) The court found that “outside these two extreme time periods” of “long before trial” and “the eve of trial, ” other considerations may come into play in determining whether a Faretta motion is timely (Lynch, supra, 50 Cal.4th at p. 723), including whether trial counsel is ready to proceed to trial, the number of witnesses and their availability, the complexity of the case, any on-going pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation. (Id. at p. 726.) Lynch thus held that the trial court may properly consider “the totality of the circumstances in determining whether a defendant’s pretrial motion for self-representation is timely.” (Ibid.)
We agree with the trial court that Castro’s Faretta motion was untimely because he made it the same day his trial was set to begin. (People v. Hall (1978) 87 Cal.App.3d 125, 131-132 [Faretta motion brought the morning set for trial was untimely].) The fact that a suppression motion yet remained to be heard before the actual trial commenced does not render the Faretta motion timely; indeed, the trial court could have found the motion untimely even if it had been brought several days before trial. (See People v. Moore (1988) 47 Cal.3d 63, 78-81 [motion made three days before trial was untimely]; People v. Frierson, supra, 53 Cal.3d at pp. 740, 742; People v. Ruiz (1983) 142 Cal.App.3d 780, 790-791 [Faretta motion brought six days before trial was untimely].) Moreover, the fact that Castro stated that he would need a 60-day continuance to prepare for trial provides a further basis for ruling that his motion was untimely. (People v. Moore, supra, 47 Cal.3d at p. 78 [motion untimely when made on the Friday before trial scheduled for Monday when the defendant requested a continuance to prepare for trial].)
Although Castro contends that he had reasonable cause to bring the motion for self-representation at this late hour because he had only just learned that he and his counsel had a fundamental disagreement as to the trial strategy, the record does not support Castro’s assertion. Although Castro and his counsel spoke about trial strategy for half an hour the morning trial was to begin, this fact is not sufficient to prove that their disagreement as to strategy had only manifested itself that day. Castro did not satisfy his burden of justifying the delay in moving to represent himself. (People v. Valdez, supra, 32 Cal.4th at p. 102.)
Even where a motion for self-representation is untimely, however, the trial court must exercise its discretion to grant or deny the motion, considering such factors as the quality of counsel’s representation, the defendant’s proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay reasonably expected to follow the granting of such a motion. (Lynch, supra, 50 Cal.4th at p. 722, fn. 10; Windham, supra, 19 Cal.3d at p. 128.) When a trial court exercises its discretion to deny a motion for self-representation, “a reviewing court must give ‘considerable weight’ to the court’s exercise of discretion.... [Citation.]” (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.) In Windham, supra, our Supreme Court “decline[d] to mandate a rule that a trial court must, in all cases, state the reasons underlying a decision to deny a motion for self-representation....” (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) So long as there were sufficient reasons on the record for the court to exercise its discretion to deny the request, we may properly affirm a trial court’s decision to deny an untimely Faretta motion. (People v. Bradford (2010) 187 Cal.App.4th 1345, 1354; People v. Scott (2001) 91 Cal.App.4th 1197, 1206.)
We find that the trial court acted well within its discretion in denying Castro’s untimely motion to represent himself. First, the court reasonably considered whether “the quality of counsel’s representation was adequate.” (Clark, supra, 3 Cal.4th at p. 100; People v. Bradford, supra, 187 Cal.App.4th at p. 1354 [in denying Faretta motion, trial court correctly relied on the fact that counsel had acted competently].) In ruling on Castro’s Marsden motion made moments before his Faretta motion, the court had already concluded that Castro’s counsel was providing him with “extraordinary” representation and was well-suited to provide the best possible representation to Castro. Castro acknowledges on appeal that his defense counsel provided adequate representation.
Second, the court considered the reason for Castro’s request – namely, differences in opinion between Castro and his counsel as to trial strategy – and concluded that the strategy Castro wished to pursue was flawed in that it would essentially require Castro to admit that he possessed the heroin for personal use, which would leave the jury no choice but to find him guilty of this offense that would trigger a prison sentence of 25 years to life. Castro contends, however, that the trial court erred in placing weight on the fact that if he were permitted to represent himself, he would implement a flawed trial strategy that would be detrimental to his defense. Had his motion been timely, it is true that the trial court would not have had the discretion to deny it based on the soundness of Castro’s chosen strategy, because, with respect to timely and unequivocal motions for self-representation, the court may consider only “‘“whether the defendant has the mental capacity to knowingly waive counsel while realizing the probable risks and consequences of self representation....”’ [Citations.]” (People v. Robinson (1997) 56 Cal.App.4th 363, 371.) Timely motions for self-representation were at issue in all the cases Castro relies upon for the proposition that a court may not consider the wisdom of the defendant’s decision to represent himself. (See ibid.; Van Lynn v. Farmon (9th Cir. 2003) 347 F.3d 735; Peters v. Gunn (9th Cir. 1994) 33 F.3d 1190.) Because Castro’s request for self-representation was untimely, the court had discretion to consider whether Castro had provided “a reasonable basis for dissatisfaction with counsel’s performance.” (Clark, supra, 3 Cal.4th at p. 100.)
Third, the court placed considerable weight on the fact that Castro would not be ready to proceed to trial if his motion to represent himself were granted, but instead would need a continuance of 60 days in order to prepare his defense. On the other hand, his counsel was ready to proceed to trial. The court was concerned that jurors had already been ordered for the trial set to begin later that day. The court reasonably took into account the delay and inconvenience that would be caused if Castro’s motion for self-representation was granted. (Lynch, supra, 50 Cal.4th at p. 728; People v. Burton (1989) 48 Cal.3d 843, 854.)
The court’s failure to explicitly consider whether Castro had a proclivity to substitute counsel – a factor that weighs in Castro’s favor because he had not made any prior attempts to substitute counsel, or explicitly take into account the fact that the proceedings had been pending for four months or that trial was scheduled to last less than a week does not amount to an abuse of discretion requiring reversal of the decision to deny the Faretta motion. The court need not find that every factor weighs against the defendant in order to deny a motion for self-representation. (People v. Mayfield (1997) 14 Cal.4th 668, 810 [“Because two of [the] factors–the quality of counsel’s representation and the disruption that granting the motion would cause–weighed strongly against the granting of the motion [for self-representation], denial of the motion was not an abuse of the trial court’s discretion.”]; People v. Burton, supra, 48 Cal.3d at p. 854 [“Although defendant apparently had not shown a previous proclivity for substituting counsel, this factor alone does not undermine the court’s conclusion” that his untimely Faretta motion should be denied].)
The trial court properly relied on the types of factors that the Supreme Court has directed trial courts to consider with respect to an untimely motion for self-representation, and thus the court did not abuse its discretion in denying Castro’s motion. (Lynch, supra, 50 Cal.4th at p. 722, fn. 10; Windham, supra, 19 Cal.3d at p. 128.)
III. Romero Motion to Strike Prior Assault Conviction for Sentencing Purposes
For his current offenses, Castro was sentenced under the Three Strikes sentencing scheme to 25 years to life in prison, based on two prior strike convictions for assault with a deadly weapon and robbery. (§ 667, subds. (b)-(i); § 1170.12, subds. (a)-(d).) He contends that the trial court abused its discretion in denying his motion to strike one of his prior strike felonies, the 1998 conviction for assault with a deadly weapon, pursuant to section 1385 and Romero, supra, 13 Cal.4th 497, which decision confirmed courts’ discretion to strike a prior offense under section 1385 when sentencing under the Three Strikes law. He argues that the following facts should have compelled the trial court to strike that 1998 offense: (1) his current narcotics offenses were non-violent offenses and he submitted to arrest without incident; (2) he “probably” transported the heroin under duress from the Mexican Mafia; (3) his 1998 assault conviction was remote, having occurred 11 years before the current offense when he was an “immature” 22-year old; and (4) he had committed only two prior serious, violent felonies.
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony I).) Castro bears the burden of showing that the trial court’s sentencing decision was “so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
The purpose of the Three Strikes law is “‘to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.]” (Ibid.) “To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (Ibid.)
Consistent with the language and intent of the Three Strikes law, our Supreme Court has “established stringent standards that sentencing courts must follow” before making an exception to the sentencing scheme for repeat offenders. (Ibid.) Thus, before striking a prior felony conviction for purposes of sentencing, a trial court “must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, 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 .) “Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the [Three Strikes] law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony I, supra, 33 Cal.4th at p. 378 .)
“[T]he overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career.” (People v. Strong (2001) 87 Cal.App.4th 328, 338 (Strong) [collecting cases], cited with approval by Carmony I, supra, 33 Cal.4th 367.) We similarly conclude that the trial court did not abuse its discretion in concluding that Castro fell within the spirit of the Three Strikes law by virtue of his lengthy criminal history, and that no extraordinary circumstances otherwise take Castro outside the spirit of the law.
In denying the motion to strike, the court correctly considered Castro’s sizeable and violent criminal record following his 1998 conviction for assault with a deadly weapon, which resulted from an instance in which his brother shot a gun at Castro’s ex-girlfriend at Castro’s request. The court noted that while on parole for that offense, Castro was convicted of misdemeanor burglary, and subsequently suffered misdemeanor convictions for battery upon a spouse and brandishing a firearm. In 2005, Castro was convicted of felony burglary and robbery and his present offense, transporting heroin for sale for the benefit of a criminal gang, was another serious felony. (§ 1192.7, subd. (c)(28); § 186.22; see People v. Briceno (2004) 34 Cal.4th 451, 459.)
Although the trial court did not explicitly reference it during the Romero hearing, Castro was also convicted of the felony offense of possession of methamphetamine at the same time he was convicted of possession of heroin. Castro had also been convicted of burglary in 1996.
The supposedly mitigating factors Castro cites, including the alleged remoteness of his 1998 assault conviction, his young age at the time of its commission, the non-violent nature of the present offenses and the fact that he previously committed only two violent felonies, do not place Castro outside the spirit of the Three Strikes law. (Strong, supra, 87 Cal.App.4th at pp. 343-346.) In People v. Williams, supra, the Supreme Court held as follows: “[T]hat [defendant] happened to pass about 13 years between his prior serious and/or violent felony convictions and his present felony, and proceeded from about 20 years of age to 32, is not significant. He did not refrain from criminal activity during that span of time, and he did not add maturity to age.” (People v. Williams, supra, 17 Cal.4th at p. 163.)
In re Saldana (1997) 57 Cal.App.4th 620, the decision relied upon by Castro to suggest that the non-violent nature of Castro’s current offenses operates as mitigation, preceded our Supreme Court’s decisions in Williams and Carmony I “and thus was not informed by the relevant standard.” (Strong, supra, 87 Cal.App.4th at p. 341.) Moreover, the defendant in Saldana did not have a lengthy and continuous criminal history, as does Castro. (In re Saldana, supra, 57 Cal.App.4th 620; see Strong, supra, 87 Cal.App.4th at p. 341.)
Finally, we reject Castro’s contention that the court should have granted his motion to strike because he had transported the heroin under duress from the Mexican Mafia. The jury was instructed on the defense of legal necessity in lieu of duress (an instruction Castro does not challenge on appeal), and Castro’s counsel devoted much of his closing to the argument that Castro possessed the heroin only because he knew he would face severe retribution from the Mexican Mafia if he failed to deliver the drugs as ordered. In finding Castro guilty on all counts, the jury implicitly rejected this defense, and instead it found that he was guilty of acting with the specific intent to assist a criminal gang. Accordingly, the court appropriately did not give Castro’s duress claim any credence in deciding whether to strike his prior assault conviction.
The trial court did not abuse its discretion in denying Castro’s motion to strike his 1998 assault conviction.
IV. Cruel and Unusual Punishment
Castro contends that the sentence imposed by the court – 25 years to life in prison – constitutes cruel and unusual punishment in violation of both the federal and California constitutions. The Attorney General argues that Castro has forfeited this contention by failing to raise it in the trial court. “Cruel and unusual punishment arguments, under the federal or California tests, require examination of the offense and the offender, ” a necessarily fact-based inquiry that must first be litigated in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) Because such an inquiry was not requested before the trial court here, we agree that Castro forfeited the claim that his sentence constitutes cruel and unusual punishment. Even if Castro had not forfeited the claim, however, we find it to be meritless.
A sentence violates the federal Constitution if it is grossly disproportionate to the severity of the crime. (U.S. Const. 8th and 14th Amends.; Ewing v. California (2003) 538 U.S. 11, 23-24 [lead opn. of O’Connor, J.] (Ewing); People v. Carmony (2005) 127 Cal.App.4th 1066, 1076 (Carmony II).) “A sentence violates the state prohibition against cruel and unusual punishment [citation] if ‘“it is so disproportionate to the crime for which it is inflicted that it shocks the conscience.”’” (People v. Russell (2010) 187 Cal.App.4th 981, 993; Cal. Const., art. I, §§ 6 & 17; see In re Lynch (1972) 8 Cal.3d 410, 424-427.) To determine whether a sentence is so disproportionate as to violate the California Constitution, courts often examine the nature of the offense and/or the offender, how the sentence compares with penalties prescribed in California for other offenses, and how it compares with relative penalties in other jurisdictions. (People v. Norman, supra, 109 Cal.App.4th at p. 230.) In non-capital cases, successful challenges to a sentence as cruel and unusual are “exceedingly rare.” (Harmelin v. Michigan (1991) 501 U.S. 957, 965-1001; see Carmony II, supra, 127 Cal.App.4th at p. 1072.)
Castro contends that his sentence for 25 years to life is grossly disproportionate to the current offenses of transporting and possessing heroin with the intent to sell it as well as possessing methamphetamine. He places great weight on the fact that these offenses did not involve violence or cause injury to anyone. However, Castro was convicted of possessing and transporting a fair quantity of heroin, a deadly narcotic, for the benefit of and in association with a criminal street gang. Our legislature properly deems these to be “serious” felonies. (§ 1192.7, subd. (c)(28); § 186.22; People v. Briceno, supra, 34 Cal.4th at p. 459; see also Hutto v. Davis (1982) 454 U.S. 370 [upholding as constitutional a sentence of two consecutive terms of 20 years in prison for possession with intent to distribute nine ounces of marijuana and distribution of marijuana].)
Moreover, it is well-established that “[i]n weighing the gravity of [Castro’s] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism, ” which we have discussed above. (Ewing, supra, 538 U.S. at p. 29; see id. at pp. 25-26 [noting that heightened sentences for recidivists are not constitutionally infirm]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137 [“California statutes imposing more severe punishment on habitual criminals have long withstood constitutional challenge”].) In Ewing, supra, for instance, the United States Supreme Court held that a sentence of 25 years to life in California prison for a third strike offense of shoplifting three golf clubs worth $1200 was not constitutionally disproportionate. (Ewing, supra, 538 U.S. at pp. 28-31; see also Lockyer v. Andrade (2003) 538 U.S. 63, 77 [reinstating sentence of two consecutive terms of 25 years to life in prison for third strike conviction for two felony theft offenses for stealing approximately $150 in videotapes from store]; cf. Carmony II, supra, 127 Cal.App.4th at p. 1072 [prison term of 25-years-to-life under three strikes scheme violated prohibition against cruel and unusual punishment where a third strike was a failure to re-register as a sex offender within five days after birthday, a “harmless technical violation of a regulatory law”].)
Castro further argues that his sentence is cruel and unusual because he possessed the heroin only because the Mexican Mafia had ordered him to transport it and he would face deadly retribution from the prison gang if he did not comply. However, as discussed above, the jury impliedly rejected the necessity defense on which it had been instructed when it found Castro guilty of the offenses of transportation of heroin and possession of heroin for sale. Nor are we persuaded that Castro’s prison sentence is constitutionally invalid because of his alleged drug addiction (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [“drug addiction is not necessarily regarded as a mitigating factor” for sentencing decisions]) or because the prosecution initially offered a plea deal of 18 years in prison. (People v. Haller (2009) 174 Cal.App.4th 1080, 1091 [fact that prosecution offered plea deal of 25 years did not suggest that imposed sentence of 78 years to life was cruel or unusual]). Finally, a comparison of Castro’s recidivist sentence with sentences for other, more serious crimes or with sentences in other jurisdictions does not demonstrate that his sentence is so extreme as to violate the prohibition on cruel and unusual punishment. (See, e.g., People v. Martinez, supra, 71 Cal.App.4th 1502 [conducting intra- and inter-jurisdictional comparison and upholding sentence of 25 years to life for third strike offense of simple possession of methamphetamine where prior offenses were assault with a deadly weapon and robbery].)
We conclude that the particulars of Castro’s case present no extraordinary factors that render his sentence grossly disproportionate to the offenses for which he has been convicted. His sentence does not violate the federal or state prohibitions on cruel and unusual punishment.
Disposition
The prior prison terms under section 667.5, subdivision (b), are stricken (see fn. 2, ante). The clerk of the superior court is ordered to prepare an amended abstract of judgment so reflecting and send it to the Department of Corrections and Rehabilitation. Otherwise, the judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.