Opinion
D040553
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. SAIKI RAYMOND DEL RIO, Defendant and Appellant.
Saiki Raymond Del Rio entered guilty pleas to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), uttering and passing counterfeit paper (Pen. Code, § 648), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and resisting arrest (§ 148, subd. (a)(1)). He admitted two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668), and serving three prior prison terms (§§ 667.5, subd. (b)), 668). The court denied a motion to dismiss one or both prior strikes and sentenced him to prison for 28 years to life: 25 years to life for possessing methamphetamine with two prior strikes, enhanced by three 1-year terms for the prior prison terms. The court sentenced Del Rio to credit for time served on the remaining convictions. Del Rio contends the sentence is cruel and unusual punishment.
FACTS
On August 4, 2001, Oceanside police officers went to Del Rios home to conduct a parole search. After Del Rios wife said he was not there and she had not seen him for two weeks, Del Rio arrived. When an officer told Del Rio he would be patted down for weapons, Del Rio fled. Officers pursued and saw him throw an object to the ground. Officers retrieved a baggie containing 5.6 grams of methamphetamine. When officers apprehended Del Rio, he told them he had crystal in his system. A counterfeit $ 100 bill was found in a pouch under the front seat of his vehicle. He tested positive for methamphetamine.
Del Rios criminal record began when he was 16 years old and the juvenile court entered true findings for burglary (& sect; 459), residential robbery while personally using a deadly weapon (§§ 211, 212.5, 12022, subd. (b)), and robbery while personally using a firearm (§§ 211, 12022.5). During the six years Del Rio has been an adult, he has been convicted of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)), evading an officer with reckless driving (twice) (Veh. Code, § 2800.2), and being a felon in possession of a firearm (§ 12021, subd. (a)). During these six years, he has been sentenced to prison on three separate occasions as part of plea agreements through which a number of charges were dismissed.
DISCUSSION
Cruel and unusual punishment is prohibited by the Eighth Amendment of the United States Constitution and by article 1, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime for which it is imposed that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921.) In In re Lynch, the Supreme Court formulated a three point analysis for the determination whether a sentence is cruel and unusual: (1) the nature of the offense and the offender, with particular regard to the degree of danger which both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses; and (3) a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions. (Id. at pp. 425-427.) It is not cruel and unusual punishment to enhance the penalty for a crime because the defendant is a recidivist (People v. Jameson (1986) 177 Cal. App. 3d 658, 661-662, 223 Cal. Rptr. 108) as long as the ultimate punishment, all facts considered, is not disproportionate to the crime. (Solem v. Helm (1983) 463 U.S. 277, 284-288, 77 L. Ed. 2d 637, 103 S. Ct. 3001; Harmelin v. Michigan (1991) 501 U.S. 957, 997, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (conc. opn. of Kennedy J.).) In Rummel v. Estelle (1980) 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, the United States Supreme Court upheld a life sentence imposed on a recidivist defendant (prior convictions for fraudulent use of a credit card and check forgery) convicted of obtaining $ 120.75 by false pretenses. The court noted that the primary goal of the 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." (Id. at p. 284.) In Harmelin v. Michigan, supra, 501 U.S. 957, Justice Kennedy said, in a concurring opinion, that in determining whether punishment is greatly disproportionate to the offense, we must consider that "the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is properly within the province of legislatures, not the court. " (Id. at p. 998, quoting Rummel v. Estelle, supra, 455 U.S. at pp. 275-276.) Thus, it is up to the state to choose the penological theory it wishes to adopt. (Harmelin v. Michigan, supra, 501 U.S. at p. 999.) Difference in "the underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure." (Ibid.) California has chosen to adopt a relatively strict penological theory which subjects recidivist defendants to possible life terms whether or not their criminal history includes violence. Del Rio has not shown his punishment is more severe for this offense than the punishment of a recidivist criminal in all other jurisdictions. Nor has he shown his sentence is more severe than the punishment of a recidivist criminal in California for a more serious offense.
While arguing his sentence is disproportionate to the crime, Del Rio relies on Solem v. Helm, supra, 463 U.S. 277, which held it is cruel and unusual punishment to imprison a nonviolent recidivist to a life term without the possibility of parole. However, when discussing the proportionality of a sentence, the Supreme Court in Solem set forth as guidelines the same factors as expressed in In re Lynch, supra, 8 Cal.3d 410. Thus, Solem adds no additional analysis to In re Lynch. When faced with recidivist defendants, appellate courts have consistently found the three strikes law is not cruel and unusual punishment. (See, e.g., People v. Cooper (1996) 43 Cal.App.4th 815, 826-827.) In Ewing v. California (2003) 155 L. Ed. 2d 108, __ U.S. __, __, 123 S.CT 1179, 1187, the Supreme Court recognized that it has traditionally deferred to the state legislatures to adopt a penological theory and determine the length of sentences. The court noted, "when the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." Applying this standard, the term of 28 years to life imposed on Del Rio is not cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. and AARON, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise specified.