Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County, No. RIF141175, J. Thompson Hanks, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry J.T. Carlton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
A jury convicted defendant and appellant Stephen Randall Cox of possessing a firearm as a felon. (Pen. Code, § 12021, subd. (a)(1).) The trial court found true the allegations that defendant had three strike priors (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)). Defendant’s strike priors were his February 24, 1976 conviction for robbery (§ 211), and his November 8, 1983 convictions for robbery (§ 211) and assault with a firearm (§ 245, subd. (a)(2)). After the trial court denied defendant’s Romero motion requesting the trial court to dismiss his strike priors, defendant was sentenced to an indeterminate term of 25 years to life in state prison. Defendant contends: 1) the trial court erred by denying his motion to suppress evidence (§ 1538.5); 2) the trial court abused its discretion by denying his motion to dismiss his strikes; and 3) the sentence is unconstitutionally cruel and unusual. We affirm.
Undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
I. MOTION TO SUPPRESS
Defendant contends that his detention was unlawful and prolonged and that the search of the motor home he was staying in was improperly predicated on third party consent. The People contend the detention was reasonable due to the probation search of a different occupant of the property, and that the search of the motor home was proper because defendant was a parolee and the police could rely on the third party’s common authority over the premises due to defendant’s denial of living in the motor home. We hold that the detention was reasonable and the search permissible due to defendant’s status as a parolee. Accordingly, we do not address the validity of the third party’s permission.
In this section, we recite only evidence from the hearing on the motion to suppress.
At 11:45 a.m. on January 24, 2008, several police officers went to a property seeking to conduct a probation compliance search of a different occupant of the property. An officer approached the house and spoke with the target probationer’s mother. The mother reported that the probationer was not present; the officer “asked for permission, as well as advised her that we were going to check the property to make sure she wasn’t there.” The police searched the property in a protective sweep to determine if the targeted probationer was hiding.
Defendant was first noticed when he exited a motor home, 50 to 75 feet from the driveway gate, and he began walking down the dirt driveway toward several officers and the gate. An officer called him over and asked him for his name. Defendant agreed to be searched and, after the search did not produce any identification, provided a fake name, fake date of birth, and claimed to live at another location.
After a records check returned no results, defendant was kept with an officer at the front of the property while the rest of the officers continued their protective sweep. The police then examined the cell phone they had found during the search of defendant to determine if it had any indication of defendant’s identity. The background on the main screen was a photograph of defendant “holding a gun in one hand and flipping off the camera with the other.”
The motor home from which defendant had exited was searched as part of the protective sweep. The police noticed a distinctive chemical smell that they associated with methamphetamine.
The father of the targeted probationer told the police that defendant had been staying in the motor home. Defendant denied living in the motor home, and defendant’s identity had not yet been determined. The father granted the police permission to search the motor home.
An officer informed defendant that if necessary they would take fingerprints to identify him. Defendant provided his real name and date of birth. Defendant “had an outstanding misdemeanor warrant as well as a parole violation warrant.”
After the police had determined defendant’s identity and warrants, and obtained permission from the father, the police searched the motor home again. In addition to some items associated with narcotics, the police located a revolver inside a sock between a mattress and a pillow.
The police spoke with defendant for “[m]aybe a minute, minute and a half” while defendant was walking over to them, and before obtaining his permission to search him. The search of defendant’s person lasted “20 to 30 seconds.” Running the name provided by defendant through dispatch took between two to five minutes. It took 10 to 15 minutes to complete the protective sweep, and 20 more minutes to search the motor home.
An officer testified that it was the normal practice in a probation search, where multiple people are found on the property, for the police to detain everyone they find until the property has been rendered safe and the officers are sure no one is hiding and no one else is “milling about the property.” The detainees usually sit where the police can observe them, and are asked for their identification, name, and date of birth so that dispatch can check any records. They are detained until they can be identified and, if necessary, the police will bring out a fingerprint machine so they can “exhaust all means to try to find out exactly who we have.”
The trial court provided a lengthy ruling. As to the detention, the trial court determined: the police came to do a probation search; the police were given consent to look around even though they did not “necessarily even need consent to look around”; defendant was detained to determine his identity; and defendant provided a false name which “allows for any prolonged detention, if there was one in this case, to try and ascertain exactly who he was.” As to the search of the motor home, the trial court determined: the targeted probationer’s father provided consent to search; the motor home was not searched “until after the consent to search is given, and until after [the police] discover that [defendant] is, in fact, a wanted parolee and has a misdemeanor violation outstanding”; and, thus, the trial court did not “see anything unlawful with the search of the motor home.”
B. Standard of Review
“ ‘We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 384.)
C. Detention
When law enforcement officials encounter persons on the premises of a private residence they are lawfully investigating or searching, “whose identity and connection to the premises are unknown and cannot immediately be determined without detaining the person, the officers may constitutionally detain him or her for the period of time required and in the manner necessary to make those determinations and to protect the safety of all present during the detention. If the person is determined to be an occupant of the home to be search, he or she may be detained... for the duration of the search.” (People v. Glaser (1995) 11 Cal.4th 354, 374 (Glaser).) While Glaser involved the execution of a search warrant, in People v. Matelski (2000) 82 Cal.App.4th 837, 852 [Fourth Dist., Div. Two] (Matelski), we held that once officers were properly on a property to conduct a probation search the “officers were able to briefly detain other persons on the premises to determine their identity.”
Substantial evidence supports the trial court’s determination that the police were conducting a probation search and detained defendant to determine his identity. Nothing in the record indicates that the duration of the detention, or the manner of detention, was beyond that necessary for the deputies to determine defendant’s identity and ensure safety while they otherwise conducted their investigation. Thus, defendant’s detention was reasonable. (Glaser, supra, 11 Cal.4th at p. 374; Matelski, supra, 82 Cal.App.4th at p. 852.)
Defendant argues that Glaser is distinguishable because it concerned securing premises while executing a search warrant and the defendant in that case was recognized by an officer as someone who had previously been arrested at the address being searched. We disagree. It does not matter whether the law enforcement activity was pursuant to a warrant or the detainee was known from prior law enforcement contacts with the property; what matters is that the underlying law enforcement activity was permissible. This is because the same concerns about ensuring safety, as well as determining identity and connection apply. (See Glaser, supra, 11 Cal.4th at p. 374 [“identity, ” “connection, ” and “safety” all justified the detention of the occupant].)
Defendant also contends that Matelski is inapplicable because the police were informed that the targeted probationer was not present and, thus, checking for compliance with probation no longer justified the actions of the police. We disagree. A probation condition permitting a residential search provides consent from the probationer for their residence to be searched and “consent of other interested parties is unnecessary.” (People v. Woods (1999) 21 Cal.4th 668, 675.) Thus, it is immaterial if probationers are present for searches of their residences. Furthermore, the probationer’s parents permitted the protective sweep. As long as the police were lawfully investigating or searching the property, they could detain people to determine identities and connection with the property, as well as ensure the safety of everyone present. (Glaser, supra, 11 Cal.4th at p. 374; Matelski, supra, 82. Cal.App.4th at p. 852.)
D. Search
Defendant contends that the search of the motor home could not be a valid parole search because it was not made at the request of the parole agent. Defendant relies on People v. Burgener (1986) 41 Cal.3d 505, 534 for the proposition that reasonable suspicion by a parole officer that a parolee is involved in criminal activity or otherwise in violation of parole is required to justify a parole search. However, Burgener was decided when reasonable suspicion was required to conduct a parole search. (People v. Hunter (2006) 140 Cal.App.4th 1147, 1153, fn. 2.) Since 1997, section 3067, subdivision (a), has required parolees to agree “to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Thus, under current law, a parole search can be conducted by any peace officer, and it need not be based on reasonable suspicion, so long as the sole purpose of the search is not harassment. (§ 3067, subd. (d); see People v. Reyes (1998) 19 Cal.4th 743, 754 [“even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy”]; see also Samson v. California (2006) 547 U.S. 843, 857 [“Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee”].) Accordingly, the search of the motor home where defendant had been staying was justified as a parole search.
II. ROMERO MOTION
Defendant contends the trial court abused its discretion by denying his motion to dismiss his strikes. The People contend defendant was within the spirit of the three strikes law. We agree with the People.
A. Background
“The defendant has a long... criminal history including theft, drug, and assaultive criminal convictions. The defendant’s criminal behavior extends over forty years. The defendant has been given numerous opportunities to rehabilitate at the California Youth Authority for four separate cases, given local custody time, and three additional state prison commitments. The defendant has been tried on probation and parole supervision only to continue his criminal conduct in the community. Upon each release from custody, the defendant continues to engage in his criminal exploits by committing new crimes and violating his conditions of parole. The instant matter represents just another failure on a long list of failures by the defendant to straighten out his life when given the opportunity. Given [the] circumstances in the instant matter, it is evident the defendant remains a threat to the community. Further, the defendant does not have the desire or ability to lead a law-abiding lifestyle.”
According to the probation report, defendant had 11 prior felony convictions and 19 misdemeanor convictions. While on parole, defendant had been returned to custody 21 times for parole violations. Since 1975, defendant has not lasted five years without being convicted of a new offense. He was most recently paroled on November 19, 2007—barely two months prior to the discovery of his unlawful possession of a firearm.
Defendant’s Romero motion noted his social history and elaborated on the drug problem and traumatic death of his sister that were discussed in the probation report. The motion contended that defendant was outside the spirit of the three strikes law because: his current offense was not violent or sophisticated; the strike prior convictions were over 25 years old and his subsequent offenses were not “serious or violent offenses that have caused serious injuries” and did not involve use or threatened use of weapons; and he would not be dangerous following a determinate term because of his age, Hepatitis C, and decreased seriousness of his offenses. Attached to the motion was a copy of defendant’s criminal history, as recited in the probation report, and a letter from defendant.
After permitting oral argument, the trial court ruled on defendant’s motion: “I’ve enjoyed your pleading, [defendant’s trial counsel]. I found it well presented, and it was a persuasive pleading. But a review of simply [defendant’s] background—and... I can’t help but note that... there’s even one [conviction] out of Florida. But he was paroled the last time off of a receiving stolen property in ’07, November of ’07, and he committed the new offense in January of ’08 while he was a parolee at large. And he lied about his identity. [¶] When you look at his history, it just—I’m sorry. I don’t think that he is a suitable individual for a strike of the strikes, and I think he does fall well within the spirit of the three-strikes law. So probation is denied.” The trial court then imposed an indeterminate sentence of 25 years to life.
B. Discussion
Defendant contends he falls outside the spirit of the three strikes law because his convictions are old, his current offense was nonviolent and victimless, and he is 52 years old. The People disagree because of defendant’s “extensive, persistent, and serious criminal background.” We agree with the People.
“[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.” (People v. Williams (1998) 17 Cal.4th 148, 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 defendant’s motion and 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 offenses, his difficult youth, and his age, we do not reweigh the factors. (See Carmony, supra, 33 Cal.4th at p. 378.) Furthermore, defendant’s numerous and consistent convictions and parole violations placed him well 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.)
We also reject defendant’s contention that the trial court’s statement, “So probation is denied, ” immediately following its conclusion, “I think he does fall well within the spirit of the three-strikes law, ” indicates that the trial court misunderstood its discretion and believed it would have had to grant probation if it granted the Romero motion. “On appeal, we presume that a judgment or order of the trial court is correct, ‘ “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citation.]” (People v. Giordano (2007) 42 Cal.4th 644, 666.) In this light, the trial court was merely making an abrupt transition from denying the Romero motion to sentencing, and there is no affirmative indication of error.
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. The People contend defendant has forfeited the issue by failing to raise the issue below, and that the failure was not due to ineffective assistance of counsel because the objection would have lacked merit. While the issue was forfeited, 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 (plur. opn. of O’Connor, J.).) However, the protection afforded by the Eighth Amendment is narrow. It applies only in the “ ‘exceedingly rare’ ” and “ ‘extreme’ ” case. (Id. at p. 21 (plur. opn. of O’Connor, J.).) In the context of a 25-year-to-life sentence imposed 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 (plur. opn. of O’Connor, J.).) 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 p. 30 (plur. opn. of O’Connor, J.).)
Comparing defendant’s current crimes 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.
Defendant contends that his case is like People v. Carmony (2005) 127 Cal.App.4th 1066, in which the Third District Court of Appeal held that the mandatory three strike sentence of 25 years to life was so grossly disproportionate to the violation of the sex offender registration statute at issue in that case that it “shocks the conscience of the court and offends notions of human dignity” and thus constitutes cruel and unusual punishment under both the state and federal Constitutions. (Id. at p. 1073.)
Defendant also contends that his case is factually analogous to several subordinate federal decisions that have invalidated sentences under California law. However, we are not obligated to follow any of those decisions (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), and we do not find them persuasive because they reflect a subtle parsing of Ewing that disregards its central theme of judicial deference to legislative power over sentencing (see Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, 777 [dis. opn. of Kleinfeld, J.]).
In People v. Carmony, supra, 127 Cal.App.4th 1066, the “defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law... [but] failed to ‘update’ his registration with the same information within five working days of his birthday as also required by law.” (Id. at p. 1071, fn. omitted.) The defendant’s information had not changed in the interim, “and in fact [his parole agent] arrested [the] defendant at the address where he was registered.” (Ibid.) Nevertheless, the defendant was charged with the registration violation, a felony to which he pled guilty, and three prior strike convictions, which the defendant admitted, and the trial court sentenced the defendant to the mandatory three strikes term of 25 years to life in state prison. (Id. at p. 1072.)
Defendant’s current crime is not similar to the crime in People v. Carmony, which that court characterized as “willful failure to file a duplicate registration as a sex offender.” (People v. Carmony, supra, 127 Cal.App.4th at p. 1086.) In the instant case, defendant engaged in overt criminal conduct by possessing a firearm. In contrast, the crime in People v. Carmony was one of omission, or as the Court of Appeal described it “a passive, nonviolent, regulatory offense, which causes no harm and poses no danger to the public.” (Ibid.) As the appellate court noted in holding the three strikes sentence in that case violated both the state and federal Constitutions, “It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law.” (Id. at p. 1072.)
This is not a rare case. The sentence in this case is harsh; but harsh sentencing is not prohibited. Defendant has 11 prior felony convictions, including his three, over 25 year old violent strike priors, 19 misdemeanor convictions, and has been returned to custody 21 times for parole violations. He was still on parole at the time he committed his present offense of possessing a firearm as a felon. Accordingly, “[t]he State of California ‘[i]s entitled to place upon [defendant] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State.’ [Citation.]” (Ewing, supra, 538 U.S. at p. 30 (plur. opn. of O’Connor, J.).)
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[”] [citation], 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 has a lengthy criminal history and his present offense was for possessing a firearm, something he was precluded from doing because he was a felon. Thus, the outstanding characteristic of the offense and the offender was recidivism. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Based on defendant’s overwhelming 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: HOLLENHORST, J., CODRINGTON, J.