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People v. Dekelaita

Court of Appeals of California, Fifth Appellate District.
Nov 24, 2003
F041523 (Cal. Ct. App. Nov. 24, 2003)

Opinion

F041523.

11-24-2003

THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN DEKELAITA, Defendant and Appellant.

Francia M. Welker, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Lloyd G. Carter and Robert P. Whitlock, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

By information, Robert Allen Dekelaita (defendant) was charged with first-degree burglary (count 1; Pen. Code, § 459) and misdemeanor resisting arrest (count 2; § 148). With respect to count 1, it was further alleged that defendant had two prior serious felony convictions (§ 667, subds. (a), (d)) and served five prior prison terms (§ 667.5, subd. (b)). Defendant pled guilty on count 2, and a jury convicted him on count 1. The court found the allegations true and denied defendants motion to strike one of his prior convictions. Defendant was sentenced to 38 years to life as follows: 25 years to life on count 1, plus two consecutive five-year terms for the prior serious felony convictions and three consecutive one-year terms for the prison priors, and a concurrent six-month term on count 2.

Defendant appeals, contending 1) the court abused its discretion in refusing to strike one of his prior convictions, and 2) his sentence constitutes cruel and unusual punishment. We disagree and affirm the judgment.

FACTUAL HISTORY

The underlying facts are not relevant to the issues on appeal. For informational purposes, we summarize the facts from the probation officers report:

"On April 24, 2002, at approximately 9:59 AM, officers of the Turlock Police Department were dispatched to an apartment complex ... to investigate a burglary in progress. The officers were advised that the suspect was leaving the apartment complex ....

"Upon arrival the officer[s] observed the suspect, later identified as [defendant], and ordered him to stop. [Defendant] fled on foot and the officers were able to catch up to him and place him under arrest. The area was searched and the officers found a Makita plastic case, a green duffel bag, and a backpack. Both witnesses identified [defendant] as the suspect in the burglary and they identified the property the suspect had carried away from the residence.

"The door at [the apartment] was forcibly opened and appeared to [have been] kicked open as there was a piece of the door jam on the kitchen floor. The deadbolt was in the extended position. The officers observed a compact disc case on the floor of the living room, with numerous compact discs scattered around it. In the bedroom various drawers were opened and clothes were hanging out of them.

"The victim ... responded to the scene and stated numerous compact discs were taken from the display rack and a non-working Makita drill and case were missing from the living room closet. All of the property was recovered."

DISCUSSION

I. Refusal to strike prior conviction

Defendant argues the trial court abused its discretion in failing to strike one of his prior convictions in the interest of justice. We find defendants argument unpersuasive.

"In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ... [the California Supreme Court] explained that the `power to dismiss an action, on a trial courts own motion, `in furtherance of justice pursuant to ... section 1385(a), `includes the lesser power to strike ... allegations or vacate findings `relevant to sentencing, such as the allegation or finding `that a defendant has prior felony convictions. [Citations.]" (People v. Williams (1998) 17 Cal.4th 148, 151.) This case, however, does not involve a situation where the trial court did exercise its section 1385 discretion in striking a prior, but rather one where the court declined such a request.

We addressed the issue of an appellate courts authority to review a trial courts decision not to exercise its section 1385 power in People v. Benevides (1998) 64 Cal.App.4th 728. We held that appellate review is available where 1) the courts refusal is based on a mistaken belief regarding its authority to do so, or 2) the court expresses clearly improper reasons for refusing to exercise its discretion (for example, where the decision was based on a defendants race, gender, religious beliefs, etc.). (Id. at p. 735.)

Here, as in Benevides, the record shows the trial court was aware of its ability to strike a prior under section 1385, and defendant does not contend the courts decision was based on an improper purpose. "The appellate courts do not have the power to substitute their discretion for that of the trial court or to direct the trial court to exercise its discretion to dismiss." (People v. Benevides, supra, 64 Cal.App.4th at p. 735.) We therefore reject defendants claim that the trial court abused its discretion in failing to strike one of his prior convictions.

Even if we were to review the trial courts decision not to strike any of defendants prior convictions, our conclusion would be the same. As the Supreme Court stated in People v. Williams,supra, 17 Cal.4th 148, in deciding whether to strike a prior conviction:

"[T]he court in question must consider whether, in light of the nature and circumstances of [defendants] 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 schemes 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, supra, at p. 161.)

The Supreme Court further noted the trial courts decision is "subject to review for abuse of discretion. This standard is deferential. [Citations.] But it is not empty. Although variously phrased in various decisions [citation], it asks in substance whether the ruling in question `falls outside the bounds of reason under the applicable law and the relevant facts [citations]." (People v. Williams, supra, at p. 162.)

Here, defendant had two prior convictions for first-degree burglary. In rejecting defendants request to strike one of these convictions, the court reasoned:

"Ive considered the defendants age, Ive considered the defendants prior criminal history, which is very extensive, and tried to find some rational, reasonable way in which ... this ... Court could do justice by perhaps striking a prior. But considering the background of the defendant, considering the circumstances of the crime and all of the individualized considerations that the case law allows me to do, I do not feel under the circumstances that I am justified in striking the prior conviction....

"The defendant ... has really not been out of custody for longer than a year and a half since 1985. He has committed first degree burglaries in the same fashion as essentially ... was committed in this case. [¶] The defendant has had opportunities to address his addiction....

"And under the totality of the circumstances and all of the circumstances that I have considered in reference, and based on the background of the defendant, including his prior criminal history ... the motion to strike the prior — any prior conviction is ... denied."

It is clear the trial court acted to achieve legitimate sentencing objectives, after a thoughtful and conscientious assessment of all relevant factors, including individual factors pertaining to defendant. (See People v. Williams, supra, 17 Cal.4th at pp. 161-164.) In light of these circumstances, we cannot say the courts decision was, in any way, outside the bounds of reason.

II. Cruel and unusual punishment

Defendant next contends his 38-years-to-life sentence for first-degree burglary is cruel and unusual punishment. The People argue that the issue has been waived.

The determination of whether the punishment in a particular case violates the constitutional prohibition against disproportionately cruel or unusual punishment is fact specific and must be raised in the trial court. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; see also People v. Davis (1995) 10 Cal.4th 463, 507, fn. 8.) Here, the matter was not raised in the trial court and it is therefore waived on appeal.

Even if defendant had raised the issue, he could not prevail. A statutory punishment may violate the state constitutional prohibition against cruel and unusual punishment if it is grossly disproportionate to the offense for which it is imposed. (People v. Dillon (1983) 34 Cal.3d 441, 478.) The defendant must show that the sentence is "`out of all proportion to the offense" and that it "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) When applying the Lynch test for disproportionality, we consider certain factors: 1) the degree of danger the offender or the offense poses to society; 2) how the punishment compares with the punishments for more serious crimes in the same jurisdiction; and 3) how the punishment compares with punishment for the same offense in other jurisdictions. (Id. at pp. 425-428.)

Based on the record here, under the first prong set forth in Lynch, we find defendant poses a substantial danger to society. Defendant has a long history of recidivist behavior reflected in criminal conduct dating back to 1978. Defendant has five prior convictions for burglary, the last two for first-degree burglary. He also has numerous felony convictions for receiving stolen property, forgery and grand theft, as well as misdemeanor drug-related offenses. Defendants prior performance on probation and parole was found to be unsatisfactory.

Here, we find defendant "is precisely the type of offender from whom society seeks protection by the use of recidivist statutes. There is no indication defendant desires to reform or to change his criminal behavior." (People v. Ingram (1995) 40 Cal.App.4th 1397, 1415, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.) Thus, when we consider both the offense and the offender, we conclude defendants sentence does not violate the state constitutional proscription against cruel or unusual punishment.

Defendant fails to address the second and third prongs set forth in Lynch. In short, we do not find defendants punishment disproportionate when compared to more serious crimes in California or the same offense in other jurisdictions. We have previously found "Californias Three Strikes scheme is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders." (Ingram, supra, 40 Cal.App.4th at p. 1416.)

We similarly conclude defendants sentence does not violate the federal prohibition against cruel and unusual punishment. (See Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 1186-1187] [Eighth Amendment does not require strict proportionality between crime and sentence; it forbids only extreme sentences that are grossly disproportionate to crime]; Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166, 1171-1175] [decision affirming petitioners two consecutive terms of 25 years to life for "third strike" convictions of petty theft did not involve unreasonable application of established gross disproportionality principle].)

DISPOSITION

The judgment is affirmed. --------------- Notes: All statutory references are to the Penal Code unless otherwise indicated.


Summaries of

People v. Dekelaita

Court of Appeals of California, Fifth Appellate District.
Nov 24, 2003
F041523 (Cal. Ct. App. Nov. 24, 2003)
Case details for

People v. Dekelaita

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN DEKELAITA, Defendant…

Court:Court of Appeals of California, Fifth Appellate District.

Date published: Nov 24, 2003

Citations

F041523 (Cal. Ct. App. Nov. 24, 2003)