Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF028161. William Bailey, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
On March 1, 2009, defendant and appellant Robert Arthur Cave walked out of his correctional fire camp. A jury convicted him of escaping, without force or violence, from a prison or conservation camp. (Pen. Code, § 4530, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant then admitted he had been convicted on April 26, 2007, of assaulting a peace officer with a deadly weapon (§ 245, subd. (c)) and threatening to commit a crime that would result in death or great bodily injury (§ 422). Both convictions were strike priors. (§ 667, subds. (c), (e)(2)(A).) The assault conviction also constituted a prison prior. (§ 667.5, subd. (b).)
After the trial court denied defendant’s Romero motion requesting the dismissal of the strike priors, defendant was sentenced to an indeterminate term of 25 years to life in state prison, with the trial court imposing the one-year prison prior but striking the punishment pursuant to section 1385. Defendant contends the trial court abused its discretion by denying his motion to dismiss his strikes and the sentence is unconstitutionally cruel and unusual. We affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
I. BACKGROUND
On January 4, 2001, defendant was convicted of felony receiving stolen property.
In addition to the assaulting a peace officer and threat convictions, defendant was also convicted on April 26, 2007, of taking a weapon from a peace officer (§ 148, subd. (d)) and inflicting a corporal injury on his spouse resulting in a traumatic condition (§ 273.5, subd. (a)).
Defendant’s Romero motion contended he was outside the spirit of the three strikes law because: his current offense was nonviolent and victimless; he had a turbulent childhood; he had served in the Navy (but was medically discharged); drug use caused his strike priors; he “ha[d] undergone drug treatment and rehabilitation meetings while incarcerated”; all of his prior convictions but one derived from a single drug-induced aberrant incident and the remaining conviction was nonviolent; and his actions after escaping “show that he is no danger to society.” The People’s opposition noted the serious and violent nature of the strike priors, recited the facts underlying those convictions, and asserted that defendant’s commission of the present offense while still serving time for his strike offenses “establishes that the defendant is a recidivist and refuses to comply with the law.” In addition to outlining the factors for consideration in a Romero motion, defendant’s motion also asserted that a balancing with defendant’s rights against cruel and unusual punishment, under both the state and federal Constitutions, was required.
At the commencement of the sentencing hearing, the trial court stated it had read the probation report, and had read defendant’s Romero motion, as well as the People’s opposition, three times. Defendant’s trial counsel provided additional background about defendant: he was in the Navy for four months before being discharged for seizures; he has six kids; his drug problem led him to his 2001 and 2007 convictions; and his 2007 convictions stemmed from a 24-hour course of conduct but none of the convictions were stayed under section 654’s prohibition against multiple punishment for the same act or indivisible course of conduct.
The trial court provided a lengthy ruling in which it recited the legal framework behind Romero motions and the three strikes law, defendant’s background, the circumstances of the present offense, and the circumstances of defendant’s prior offenses.
Defendant had hiked a little more than six miles away from the camp, borrowed and returned a cell phone from two passers-by, and did not resist when he was found by law enforcement. In addition to the 2001 conviction being nonviolent, the trial court considered this “to be on the positive side of the ledge.” However, the trial court noted defendant’s history of drug use and stated, “the continued drug use makes it somewhat difficult for the Court to find someone outside the spirit of the Three Strikes Law, because we assume someone outside the Three Strikes Law would be a sober and productive citizen in one or more respects.”
The trial court then considered incidents underlying the 2007 convictions as being “important on the issue of character and background.” Defendant’s wife just had brain surgery; defendant and his wife were told that any serious head trauma could be life threatening. However, defendant held his wife captive, threatened to kill her, threw her down when she attempted to leave, and hit her in the back of the head (knocking her down) when she attempted to use the phone. Defendant then ordered his wife back to their bedroom “telling her that she’d better not fall asleep or he w[ould] bounce the phone off her head.” The next day, defendant drove his wife to a medical appointment and waited in the car. She was able to get a sheriff’s deputy to respond. Defendant struggled with the deputy, attempted to remove the deputy’s firearm, grabbed the deputy’s taser, and tased the deputy approximately eight times, before bystanders assisted the deputy in restraining him. The trial court stated that its “greatest concern is that when the defendant took a weapon away from a police officer and used it on that officer, he is basically attempting to or actually destroying the basic concepts of an ordered society, law and order, and the safety of the public, as it is to be protected by peace officers. So this was really a strike []at one of the basic fundamental reasons on which our society is based.” “[I]n weighing those factors in favor of the defendant and his Constitutional rights, the fact of his committing this 245(c) against a peace officer, and using the officer’s taser multiple times, which in my opinion could have inflicted very serious injury, and apparently there was some injury, it was enough to generate felony. We don’t know whether it caused permanent nerve damage or not. But the fact of that offense itself, in my opinion, outweighs all of the positive factors in favor of the defendant under Romero and Williams.”
People v. Williams (1998) 17 Cal.4th 148 (Williams).
The trial court later stated, “if we didn’t have the 245(c) Penal Code, the Court would find it a little closer in terms of weighing the current offense, which is non violent, the defendant’s past, and all these things as against the 422. [¶] However, this 422 is probably... one of the more serious ones that I have seen, and does carry substantial weight on the other side of the scale.” The trial court then denied the Romero motion as to both strikes.
As to the prison prior enhancement, the trial court stated that the offense to which it attached “was non violent. He didn’t threaten anyone to get away. He walked for two days. He voluntarily subjected himself to custody. He says he was not going to attack his wife. He wanted to hop the train to go see his father. Therefore, as to the prior offense conviction on April 26, 2007, Penal Code 245(c) alleged under 667.5(1), the Court imposes one year, and exercises its discretion under 1385 to strike the one year punishment. Therefore, the Court is not imposing a one year consecutive to the life with the minimum 25 years.”
II. ROMERO MOTION
Defendant contends the trial court abused its discretion by denying his motion to dismiss his strikes. We disagree.
“[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).) Defendant has the burden of demonstrating an abuse of discretion and, in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) Even if we might have ruled differently in the first instance, we will affirm the trial court’s ruling as long as the record shows the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (Id. at p. 378.) An exercise of discretion to strike a prior conviction pursuant to section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant’s constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts “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.” (Williams, supra, 17 Cal.4th at p. 161.) There is a “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be “extraordinary” for a career criminal to be deemed to fall outside the scheme of the three strikes law. (Carmony, at p. 378.)
The record shows that the trial court reviewed the probation report, defendant’s motion, and the People’s opposition, as well as permitted oral argument. In so doing, the trial court considered defendant’s present felony, prior strikes, background, character, and prospects. Thus, there is no indication that the trial court failed to consider any relevant information before it that would render defendant’s circumstances extraordinary. While defendant understandably emphasizes the victimless and nonviolent nature of his present offense, his difficult youth, his drug problems, and his age, we do not reweigh the factors. (See Carmony, supra, 33 Cal.4th at pp. 374, 378.) Furthermore, defendant’s prior serious and violent felony convictions placed him within the spirit of the three strikes law. Accordingly, defendant has failed to overcome the “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion.” (In re Large, supra, 41 Cal.4th at p. 551.)
Defendant is mistaken that “there was no acknowledgement of the minor nature of the current offense” by the trial court. Following the trial court’s recitation of the circumstances of the present offense, the trial court acknowledged the nonviolent nature of the 2001 conviction and said, “So those appear to be on the positive side of the ledge.” Thus, the trial court acknowledged the nature of the present offense and considered it as a factor in favor of dismissing a strike. Furthermore, the trial court used the nature of the current offense to justify striking the punishment for the prison prior.
Defendant also contends that the trial court’s comments on defendant’s continued drug use “showed its inclination to not take a true look at the individual offender whenever prior drug use is involved.” However, failure to address a substance abuse problem may be a negative indication of a defendant’s background, character, or prospects. (See Williams, supra, 17 Cal.4th at p. 163 [lack of follow through in efforts to control a substance abuse problem as factor toward there being “little favorable about [defendant’s] background, character, or prospects”].)
III. CONSTITUTIONALITY OF THE SENTENCE
Defendant contends that his three strikes sentence of 25 years to life violates the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution. We disagree.
Preliminarily, the People contend defendant forfeited the issue by failing to raise the issue below. Defendant notes that his Romero motion referred to relevant constitutional provisions, though the words cruel and unusual were not stated, and that sentencing proportionality was discussed at the hearing. Regardless of the issue of forfeiture, we reject the claim on its merits in the interests of judicial economy. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
A. Federal
A sentence violates the Eighth Amendment of the United States Constitution if it is “ ‘ “grossly disproportionate” to the crime.’ ” (Ewing v. California (2003) 538 U.S. 11, 23.) However, the protection afforded by the Eighth Amendment is narrow. It applies only in the “ ‘exceedingly rare’ ” and “ ‘extreme’ ” case. (Ewing, at p. 21.) In the context of a 25-year-to-life sentence imposed pursuant to the three strikes law, even if the current offense is not serious, the sentence can be “justified by the State’s public-safety interest in incapacitating and deterring recidivist felons, and... [the defendant’s] own long, serious criminal record.” (Id. at pp. 29–30.) In Ewing, the United States Supreme Court upheld a sentence of 25 years to life under California’s three strikes law for a defendant who shoplifted golf clubs worth about $1,200, because seven years earlier the defendant had been convicted of three residential burglaries and one first degree robbery. (Id. at pp. 17-18, 30.)
Comparing defendant’s current crime and his criminal history with those of the defendant in Ewing, we cannot say that defendant’s sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
B. State
Under the state constitutional standard, “we must examine the circumstances of the crime, as well as the defendant’s personal characteristics. [Citation.] If, given these factors, ‘the penalty imposed is “grossly disproportionate to the defendant’s individual culpability... so that the punishment “ ‘ “shocks the conscience and offends fundamental notions of human dignity” ’ ” [citation], [we] must invalidate the sentence as unconstitutional.’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 488.)
As long as a punishment is proportionate to the defendant’s individual culpability (intracase proportionality), there is no requirement that it be proportionate to the punishment in other similar cases (intercase proportionality). (People v. Horning (2004) 34 Cal.4th 871, 913.) Accordingly, the cruel-and-unusual determination may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10, and cases cited.)
Defendant’s prior convictions were both serious and violent, and his present offense was committed while he had not even finished serving his prison term for those violent offenses. Defendant’s inability to comply with the law, even when granted the relative clemency of serving his prison term at a conservation camp, is indicative of recidivism. Based on defendant’s recidivism, a three strikes sentence—even for his nonviolent offense—“is not constitutionally proscribed.” (People v. Stone (1999) 75 Cal.App.4th 707, 715.)
IV. DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., KING J.