Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD198644, Frank A. Brown, Judge.
HUFFMAN, Acting P. J.
Bobby Davis was found guilty by a jury of first degree burglary (Pen. Code, §§ 459, 460). The trial court found true Davis had suffered three prior serious felony convictions (§ 667, subd. (a)), four prior strike convictions under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12), and three prison prior convictions (§ 667.5, subd. (b)). At sentencing the trial court denied Davis's motion to strike three of his four prior strike convictions and sentenced him to 25 years to life in state prison plus a consecutive five years for each of his three serious felony priors for a total of 40 years to life. Davis timely appealed.
Davis contends the trial court abused its discretion in declining to strike three of his four prior strike convictions and the sentence imposed is cruel and unusual. Davis also contends the trial court erred in denying his section 1538.5 motion to suppress evidence. We reject each contention and affirm the judgment.
STATEMENT OF FACTS
On April 28, 2006, a San Diego Police Officer observed Davis sweating profusely as he walked down Gribble Street carrying a laptop computer, which was partly protruding from its computer case, as well as a trash bag with heavy objects inside. The officer stopped Davis because he matched the description of a suspect who attempted to burglarize a home on the same street the day before. Although the officer noticed Davis the day before when he was investigating the attempted burglary, the officer did not speak with Davis at the time, and did not recognize Davis as the same person.
The officer searched Davis and his belongings and found a Play Station Two, a video game controller, and a piggy bank inside the trash bag. In his jacket pockets, Davis had a digital camera, black gloves, and a USB cable. Inside the computer case, the officer found two laptop computers, a computer mouse, a photocopy of someone's driver's license, a cable bill, and shards of glass.
The cable bill listed the address of a house about three or four blocks from where Davis was stopped on Gribble Street. At the back of the house, the sliding glass door was shattered and a hammer was just inside on the floor. The residents of the house later identified the items found on Davis as the stolen items.
DISCUSSION
A. The trial court's refusal to strike any of the prior strike convictions was not an abuse of discretion.
Davis requested the trial court to strike three of his four prior strike convictions because the offenses occurred when he was 35, 28, and 24 years old. The trial court, noting Davis's virtually continuous criminal conduct, imposed a 25-year-to-life sentence under the Three strikes law (Pen. Code, § 667, subds. (b)-(i)). Davis contends the trial court abused its discretion. We disagree.
We review a trial court's decision not to strike a prior conviction pursuant to Penal Code section 1385 under the "deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) Under this standard, "a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances [such as] where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation], [or where] 'the sentencing norms [established by the Three strikes Law may, as a matter of law,] produce an "arbitrary, capricious or patently absurd" result under the specific facts of a particular case. [Citation.]' " (Carmony, supra, 33 Cal.4th at p. 378.)
A trial court is authorized in its discretion to dismiss a prior strike allegation in the interests of justice under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) In ruling whether to dismiss a prior strike allegation the court must determine whether, considering the nature and circumstances of the current offense and prior strikes, the defendant may be deemed outside the spirit of the Three strikes law and should be treated as though he had not incurred one or more prior strikes. (People v. Williams (1998) 17 Cal.4th 148, 162-163.)
The trial court here was clearly aware of his discretion and noted he had exercised that discretion in the past to strike prior convictions when it was appropriate. However, the court determined it was not appropriate to use his discretion in this case, as Davis had long been "burdened with a drug problem" and his criminal history involved multiple burglaries and robberies. The trial court's opinion is amply supported by the record.
In evaluating the trial court's decision we must look not only at the conduct underlying the current felony conviction, but must also consider the defendant's recidivist history at the time of the new offense. Davis has been continuously committing crimes since 1974. After being released on parole for his first strike offense in 1984, Davis was convicted of his second and third strike offenses in 1985. He committed his fourth strike offense in 1991, a year after being paroled from prison on his second and third strike offenses. On appeal, Davis argues he has been free from criminal activity for 15 years. However, 12 of those years were spent in prison. During the three-year period from his release to his current offense, Davis had two parole violations for which he was not charged. In short, Davis is the type of recidivist criminal that can reasonably be found to be wholly within the "spirit" of the Three strikes law. (People v. Williams, supra, 17 Cal.4th at pp. 162-163.)
Moreover, it is not our role to reweigh the sentencing factors or substitute our evaluation for that of the trial court. Because Davis has not shown the trial court considered any impermissible facts in declining to strike three of his serious prior convictions, nor has he established that the imposition of the Three strikes law here warrants departure from the legislatively preferred sentencing scheme, we cannot conclude the court abused its broad sentencing discretion. (Carmony, supra, 33 Cal.4th at pp. 377-378.)
B. The sentence imposed is not cruel and unusual.
Davis next contends his 40-year-to-life sentence shocks the conscience and therefore violates the provisions against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. We reject his arguments and find the sentence imposed in this case does not constitute cruel and unusual punishment.
To the extent Davis relies on the California Constitution, his challenge must be considered in light of In re Lynch (1972) 8 Cal.3d 410 and People v. Dillon (1983) 34 Cal.3d 441 (Dillon). Davis does not directly challenge the general facial constitutionality of the Three strikes law, but argues its application to him is unconstitutional. He thus urges this court to vacate and remand the case for resentencing.
Davis fails to appreciate the punishment under scrutiny here is the result of more than one crime. His current offense is a felony which, coupled with his qualifying priors, triggers a mandatory 25-year-to-life sentence under the three strikes legislation. (§ 667, subds. (d) & (e).) It is as a recidivist felon that Davis is being punished. From our independent review of the record in light of the applicable law, we conclude imposition of the required three strikes term in this case is not cruel or unusual.
The power to define crimes and prescribe punishment in California is a legislative function and the courts may interfere in this process only if a statute or statutory scheme prescribes a penalty so severe in relation to the crime or crimes to which it applies as to violate the constitutional prohibition against cruel or unusual punishment. (Dillon, supra, 34 Cal.3d at pp. 477-478; In re Lynch, supra, 8 Cal.3d at pp. 423-424.) It is well accepted that recidivism in the commission of multiple felonies poses a manifest danger to society, which justifies the imposition of longer sentences for subsequent offenses. (See People v. Karsai (1982) 131 Cal.App.3d 224, 242 [recidivist statute for violent sex offenders], overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) So-called habitual criminal statutes which substantially increase the severity of punishment for those who have demonstrated a propensity to repeatedly commit criminal offenses serious enough to be punished as felonies are long-established. (See In re Rosencrantz (1928) 205 Cal. 534, 535-536, 539-540 [upholding imposition of life sentence without possibility of parole for defendant convicted of fraudulently uttering a check without sufficient funds after three prior felony convictions]; People v. Weaver (1984) 161 Cal.App.3d 119, 125-126 [discussing California's long history of upholding habitual offender statutes].) In explaining the validity of such recidivist statutes the Supreme Court of the United States has stated:
"The purpose of a recidivist statute . . . [is] to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Rummel v. Estelle (1980) 445 U.S. 263, 284-285.)
Ultimately, the test whether a specific punishment is cruel or unusual is whether it is "'out of all proportion to the offense' . . . so as to shock the conscience and offend fundamental notions of human dignity." (In re DeBeque (1989) 212 Cal.App.3d 241, 249, quoting Robinson v. California (1962) 370 U.S. 660, 676 and citing In re Lynch, supra, 8 Cal.3d at p. 424.) Determining whether a given punishment is cruel or unusual depends on the facts of the specific case. (In re DeBeque, supra, at p. 249.) Although determinations whether a punishment is cruel or unusual may be made based on the first Lynch factor alone, i.e. the nature of the offense and/or offender, the defendant has the burden of establishing his punishment is greater than that imposed for more serious offenses in California and that similar offenses in other states do not carry punishments as severe. (See In re DeBeque, supra, at pp. 254-255; see, e.g., Dillon, supra, 34 Cal.3d at pp. 479, 482-488.) Successful challenges to proportionality are an "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
Here, Davis has not met that burden. In addition to his current offense of first degree burglary, Davis was found to have previously committed robberies and burglaries, which are serious prior felony convictions having tremendous potential for injury or death.
Even if we review the matter by analyzing the factors under the first Lynch prong, nature of the offense and/or offender, we reach the same conclusion that the total 40-year-to-life term imposed does not constitute cruel or unusual punishment. Davis committed his first strike offense when he was 24 years old, his second and third strike offenses when he was 28 years old, and his fourth strike offense when he was 35 years old. At the time of his current offense in 2006, Davis was 50 years old and on parole since 2003 with two parole violations.
In light of the holdings in Harmelin v. Michigan (1991) 501 U.S. 957, Rummell v. Estelle, supra, 445 U.S. 263, 284-285, and the more recent United States Supreme Court companion cases of Ewing v. California (2003) 538 U.S. 11 and Lockyer v. Andrade (2003) 538 U.S. 63, which held lengthy indeterminate life sentences imposed under California's Three strikes law for recidivist criminals did not violate the Eighth Amendment, any reliance in this case upon the federal prohibition of cruel and unusual punishment would likewise be unsuccessful. As already noted, Davis suffered four prior strike convictions before the offense in this case. He had served three separate prison terms and had been recently released from parole when he committed the current crime. Given all the relevant considerations, that Davis will serve 40 years to life for his most recent felony conviction simply does not shock the conscience or offend concepts of human dignity. We thus conclude Davis has failed to establish his sentence is so disproportionate to his "crime," which includes his recidivist behavior, and that the indeterminate term imposed for that crime does not violate the constitutional prohibitions against cruel and unusual punishment.
C. The trial court properly denied Davis's motion to suppress evidence.
Davis contends the trial court erred in denying his motion to suppress evidence because the San Diego police officer was not credible in stating that he did not recognize Davis from the attempted burglary the officer investigated the day before. At the motion to suppress hearing, the officer testified that on April 27, 2006, he was investigating an attempted burglary on Gribble Street. While the officer was getting into his squad car to look for a suspect who fled on foot, he noticed Davis drive into the neighborhood and take a small child into a house across the street from where the attempted burglary occurred. After dropping off the child, Davis walked across the street and shook hands with the victim of the attempted burglary.
The next day, the officer observed Davis sweating profusely as he walked down Gribble Street, one or two blocks away from where the attempted burglary occurred. Davis was carrying a trash bag containing heavy items and a computer case with an exposed laptop. The officer stopped Davis because he matched the description of the attempted burglary suspect: a thin, black male, approximately five feet, eight inches tall, with a mustache. The officer testified that he did not recognize Davis from the day before.
After listening to the witnesses and the hearing the arguments from counsel, the trial court denied Davis's section 1538.5 motion to suppress evidence. The court found the officer's testimony to be credible. The court noted that it would be reasonable for the officer to not recognize Davis "[b]ecause the day before when [the officer] saw [Davis], given the circumstances of seeing him, I don't think he was really paying too much attention to [Davis] because it didn't really enter his mind that he was a potential suspect. He looks like a neighbor." The court went on to say, "the following day, I don't think that [the officer] would have necessarily connected the two people such that he would have obviously known that [Davis] could not have been a potential suspect." We find no error in the trial court's decision.
When we review a trial court's ruling on a motion to suppress evidence under section 1538.5, we apply the substantial evidence test to the factual determination made by the court. We do not substitute our judgment for the credibility determinations of the trial court. Once the facts are established, however, we review such facts de novo to determine whether such facts justify the actions of the law enforcement officer. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Lawler (1973) 9 Cal.3d 156, 160.)
With regard to a detention, it is well settled that circumstances short of probable cause to arrest may justify a police officer stopping and briefly detaining a person for questioning or some other limited investigation. (United States v. Sokolow (1989) 490 U.S. 1.) A detention is reasonable under the Fourth Amendment if the detaining officer "can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)
Here, substantial evidence supports the trial court's determination that the officer's testimony was credible. Thus, we cannot reweigh the credibility of the officer on appeal. The day after the attempted burglary, the officer's attention was peaked when he saw Davis, who matched the description of the suspect, walking down Gribble Street with what appeared to be a handful of loot. Davis was sweating profusely as he carried a trash bag of heavy items and a computer case with an exposed laptop. In contrast, the officer only briefly noticed Davis the day before as Davis drove into the neighborhood, dropped off a small child, and greeted the victim of the attempted burglary. Given the two disparate set of circumstances under which the officer saw Davis, a reasonable officer would not recognize Davis from the day before and otherwise disregard him as a possible suspect. There is substantial evidence to support the trial court's findings that the officer was credible. Therefore, the trial court correctly denied Davis's motion to suppress.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., McINTYRE, J.