Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF025671, Paul E. Zellerbach, Judge. Affirmed.
Gregory Marshall, 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, Meagan Beale, and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
A jury found defendant and appellant, Anthony William Fesgen, guilty of one count of receiving stolen property in violation of Penal Code section 496, subdivision (a) (count 3) and one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) (count 4). The jury could not reach verdicts on counts 1 and 2, which charged defendant with residential burglary and attempted burglary, respectively. The trial court declared a mistrial on those two counts. After defendant waived his right to a jury on allegations that he had served four prior terms in prison within the meaning of Penal Code section 667.5, subdivision (b), and had three prior serious felony convictions within the meaning of Penal Code section 667, subdivisions (b) through (i) (the three strikes law), the court found those allegations to be true. At defendant’s sentencing hearing, the trial court denied defendant’s motion to strike one or more of his prior serious felony convictions and also denied his oral motion under Penal Code section 17, subdivision (b) to reduce count 4, defendant’s conviction for possession of methamphetamine, to a misdemeanor. The trial court then sentenced defendant to the mandatory term under the three strikes law of 25 years to life in state prison on count 3, plus a consecutive determinate term of one year on one of the Penal Code section 667.5 prior prison term enhancements, a sentence defendant describes as “a term of 26 years to life.” The trial court also imposed a concurrent term of 25 years to life on count 4.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant challenges his conviction on count 4 for possession of methamphetamine on the ground that the conviction was obtained in a proceeding that violated due process. Defendant also challenges his sentence, first, on the ground that the trial court committed reversible error, or at least abused its discretion, when it denied his section 17, subdivision (b) motion and, next, that the sentence violates both the state and federal constitutional prohibitions against cruel and unusual punishment.
We conclude as we explain below that defendant’s claims lack merit. Therefore we will affirm.
FACTS
On May 12, 2008, around 1:30 p.m., Rita Florence was in the kitchen of her home on Lava Way in Nuevo when her dog alerted her that someone was at the front door. Ms. Florence opened the door. A man was there and seemed surprised that the door had opened. The man, whom Florence did not know, asked whether Jesse Thomas lived there. Florence said no and watched the man as he walked away toward her garage. Florence checked to make sure her back gate was locked, and was standing at her back door when she heard her neighbor’s gate close. Florence then phoned the neighbor, Jody Wasley.
When her phone rang, Wasley was in the family room looking out through the shutters at a man who was attempting to break one of the back windows of her house. Wasley answered the phone and Florence told her someone was in Wasley’s backyard. Wasley said she knew, and that the man was trying to break into the house. At Florence’s urging, Wasley left the house and used her cell phone to call 911.
Riverside County Deputy Sheriff Jack Rutigliano responded to the 911 call. The deputy noticed a window in the back door of Wasley’s house that appeared to be pushed open. Deputies searched the house but did not find anyone inside.
When Wasley returned and looked through her house, it was apparent that someone had been inside. Dresser drawers and closets were open in her sons’ bedrooms and in the master bedroom. Items from the master bedroom, such as some of her husband’s clothing, were outside in the backyard. Some of Wasley’s jewelry was missing.
Deputy Raymond Ricken also responded to the burglary call but left the scene after about 15 minutes to look for suspects. Deputy Ricken spotted defendant walking down a road in an area near the Wasley house about 30 minutes after Ricken had first responded to the burglary call. A deputy drove Wasley and Florence to defendant’s location. Both women said defendant was not the man they each had seen. Wasley and Florence also testified at trial that defendant was not the man they had seen in Wasley’s backyard and at Florence’s front door on the day in question.
Although neither Wasley nor Florence identified defendant, he nevertheless was placed under arrest, and the circumstances of that arrest are unclear. Deputy Ricken testified at trial that defendant was “detained right there at the scene where we located him.” After patting defendant down for weapons, and placing him in the backseat of Deputy Mack’s patrol car, Deputy Ricken searched defendant again. This second search happened “[a]t the same place he was removed from the vehicle” because “[a]t that point he was under arrest.” In this second search Deputy Ricken found in the left pocket of defendant’s sweatshirt various items of jewelry, including a ring and some gold chains, and a screwdriver. Deputy Ricken also found a car key in the sweatshirt pocket, but earlier he had testified that the key was in the other pocket of defendant’s pants, and he only changed that testimony after reviewing Deputy Rutigliano’s police report. Wasley later identified the jewelry as items that belonged to her or her husband. The car key fit the ignition of a Honda Passport parked across the street from Wasley’s house. Wasley had never seen the vehicle before.
Initially Deputy Ricken testified that he found the jewelry and screwdriver in defendant’s front pants pocket and the key was in his other front pants pocket. After the prosecutor showed him Deputy Rutigliano’s police report, Deputy Ricken testified that the jewelry was in the left pocket of the sweatshirt.
Under circumstances also unclear from the record, defendant was placed in the backseat of Deputy Frank James’s patrol car. After defendant was taken out of that vehicle, James spotted a small plastic baggie on the seat. Deputy Rutigliano recovered the baggie and conducted a Narco 2 field test on the substance. The substance tested positive for methamphetamine. Deputy Rutigliano did not have any indication or basis to believe defendant was under the influence of a controlled substance.
According to Deputy Ricken, when he spotted defendant walking down the road, Deputy Mack was in front of Ricken. “[Deputy Mack] approached [defendant]. [Ricken] pulled in behind [Deputy Mack]. And that’s when we approached and contacted the individual.” Ricken detained defendant, patted him down for weapons, and placed him in the backseat of Deputy Mack’s patrol car. Deputy Mack did not testify at trial. Defendant later was transferred to another patrol car but whose patrol car is also unclear. Deputy James testified that Deputy Rutigliano placed defendant in the backseat of James’s patrol car. According to Rutigliano, this was the first patrol car defendant had been in, and defendant was in James’s patrol car “when [defendant] was brought back to the scene and we placed him in the patrol car to continue the investigation.”
The baggie of methamphetamine was found “when we were taking him out of the patrol unit to be transported to the station.” James noticed the baggie in the backseat and Rutigliano picked up the baggie.
Defendant did not testify at trial.
DISCUSSION
Defendant first contends that his conviction on count 4 for possession of methamphetamine runs afoul of three state and federal constitutional principles and therefore the conviction must be reversed. We conclude defendant’s claims are in effect a challenge to the sufficiency of the evidence as we now explain.
1.
DUE PROCESS CHALLENGE TO POSSESSION OF METHAMPEHTAMINE CONVICTION
In challenging his conviction for possession of methamphetamine, defendant first contends that the evidence presented at trial does not prove guilt beyond a reasonable doubt. According to defendant, the evidence only establishes probable cause. The facts pertinent to this issue are that the prosecutor did not present lab test results at trial to show that the substance in the baggie was methamphetamine. Instead, the prosecutor relied on the testimony of Deputy Rutigliano, previously noted, that he field tested the substance in the baggie and the field test result was positive for methamphetamine. What was left in the baggie after the presumptive field test was sent to the Department of Justice (DOJ) laboratory for analysis. The DOJ responded with a report that stated, “[N]ot analyzed. Residue. Please contact the laboratory if analysis is needed.”
The parties stipulated the report was admissible as a business record.
To support his claim that the evidence only established probable cause, and not guilt beyond a reasonable doubt, defendant cites Deputy Rutigliano’s trial testimony in which he explains the reason for field testing a suspected controlled substance: “[T]he test gives us a better basis for probable cause if we are making a drug-related arrest. It gives us something to go on. It will tell us in the field if what we are working with is – if I have a good indication that it’s methamphetamine or cocaine, whatever it is that I am testing, it will help me down the line if I think I need to send it off to the Department of Justice for further testing.” Because the methamphetamine in this case was only field tested, and field testing only establishes probable cause to arrest according to Deputy Rutigliano, defendant contends the evidence was insufficient to prove guilt beyond a reasonable doubt. In other words, defendant contends, as a matter of law, that a presumptive field test result is insufficient to prove that the substance tested is a controlled substance. We disagree, but will not address the issue because other evidence was presented in this case to support the jury’s implied finding that the substance in the baggie was methamphetamine.
We begin our discussion with the established principle that whether the evidence establishes guilt beyond a reasonable doubt is a determination for the jury. Our task on appeal is to review the evidence to determine whether the prosecution has met its burden “to prove every element of a crime beyond a reasonable doubt.” (People v. Cuevas (1995) 12 Cal.4th 252, 260, citing In re Winship (1970) 397 U.S. 358.) “To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Cuevas, supra, at p. 260, quoting People v. Johnson (1980) 26 Cal.3d 557, 578, italics omitted.)
The evidence presented in this case to prove defendant possessed methamphetamine in violation of Health and Safety Code section 11377 includes not only Deputy Rutigliano’s testimony, noted above, that the substance in the baggie field tested positive for methamphetamine, but also his testimony regarding how he performed the Narco 2 field test (also referred to in the trial court as the NIK test), as well as his opinion, based on his training and experience all of which he recounted for the jury, that the white powdery substance in the baggie appeared to be methamphetamine. Defense counsel cross-examined Deputy Rutigliano both on the procedure used to conduct the field test and the reliability of presumptive field test results. Therefore, the jury heard among other things that in conducting a field test the deputy wants to use the smallest amount of substance possible because “you want to be able to weigh the substance later and know how much a suspect actually had in their possession.” Deputy Rutigliano confirmed “you don’t want to use up the sample.” He also stated that he did not “know the scientific percentage of how accurate the NIK tests are,” and confirmed that the substance is also sent to the DOJ lab for analysis because the NIK test might be positive but the DOJ scientific analysis might have a different result.
Defendant’s contrary claim notwithstanding, the above noted evidence is sufficient to support the jury’s implied finding that the substance in the baggie was methamphetamine.
Defendant also contends that the evidence was insufficient to show defendant possessed a usable quantity of methamphetamine. Again, we disagree.
An essential element of the crime of possessing a controlled substance is that the quantity possessed be usable for consumption or sale. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) “In People v. Leal (1966) 64 Cal.2d. 504, the defendant possessed ‘a small spoon on which was encrusted one-half grain (approximately 32 milligrams) of crystallized substance later stipulated to contain heroin.’ [Citations.] [The Supreme Court] found that ‘in penalizing a person who possesses a narcotic the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such. It did not refer to useless traces or residue of such substance. Hence the possession of a minute crystalline residue of narcotic useless for either sale or consumption... does not constitute sufficient evidence in itself to sustain a conviction.’ [Citations.]” (People v. Rubacalba (1993) 6 Cal.4th 62, 64-65.)
Deputy Rutigliano testified in this case that the one inch by one inch baggie found on the backseat of Deputy James’s patrol car contained “[a] very small amount” of powder; “it was enough for [him] to test.” After the testing, what was left in the baggie “was a very, very small amount. And the testable amount was a very small amount to begin with.” When he later weighed the baggie, it weighed 0.3 grams. That evidence is sufficient to support the jury’s implied finding that the baggie contained a usable quantity of methamphetamine; i.e., more than a useless trace or residue, at the time Deputy Rutigliano removed the baggie from the backseat of Deputy James’s patrol car.
Finally, defendant asserts a purported procedural due process claim based on “the government’s action of consuming, in a presumptive field test, all of the powder that was seized.” Defendant’s argument depends on his view that because the powder was effectively used up in the field test, what remained in the baggie could not be tested, and therefore defendant was deprived of his right to a fair trial as guaranteed under the due process clauses of our state and federal Constitutions. Ignoring for the moment the correctness of defendant’s premise that he has a due process right to test the substance in the baggie, his assertion that he was denied that right is incorrect. The DOJ report, which was admitted into evidence at trial, states, as set out above, that although the baggie contained residue, “Please contact the laboratory if analysis is needed.” That statement suggests that the residue could have been analyzed. Defendant apparently did not make a request to have the substance analyzed and therefore he cannot complain that he was denied his right to do so.
Moreover, defendant does not have a due process right to test the substance in the baggie. Our Supreme Court has held “that the prosecution is not required to preserve evidence, and thus there is no due process violation, where it is necessary to consume the available evidence in order to test it, or test it properly.” (People v. Varghese (2008) 162 Cal.App.4th 1084, 1093, citing People v. Griffin (1988) 46 Cal.3d 1011, 1019-1023.) For each of the reasons noted we reject defendant’s challenge to the validity of his conviction on count 4 for possessing methamphetamine.
2.
SENTENCING ISSUES
As previously noted, defendant contends the trial court’s denial of his motion under section 17, subdivision (b) to reduce his convictions to misdemeanors was an abuse of discretion. We disagree for reasons we now explain.
A. Denial of Motion Under Section 17, Subdivision (b)
At his sentencing hearing defendant moved to reduce his conviction on count 4 to a misdemeanor because the methamphetamine defendant possessed “was simply the residue that was not sufficient for testing at the [DOJ] laboratory.” The prosecutor opposed the motion by pointing out defendant’s prior convictions for drug related offenses and asserting that “[t]here is simply no good reason to grant a 17(b) motion in this case.”
The trial court responded, “Well, I wouldn’t necessarily agree with that characterization. I think – if I understand [defense counsel’s] position, with respect to reducing it to a misdemeanor, is based upon a quantity or amount, which I think a good argument hypothetically in the abstract could be made to reduce this to a misdemeanor. [¶] In ruling on a 17(b) motion or request, the court needs to look at all the factors surrounding that specific crime, as well as the defendant’s prior criminal history and record, and in doing so, and in consideration of [defendant’s] almost 30 years of criminal conduct and behavior, including five separate prison terms, I think that reducing the violation of Health and Safety Code 11377 subdivision (a) to a misdemeanor is not warranted or justified, so I’m going to deny the defense’s request in that regard.”
In addressing this issue, we note at the outset that defendant’s motion was directed only at his conviction on count 4 for possession of methamphetamine. Defendant contends that we must construe the motion as directed to both count 3, defendant’s conviction for receiving stolen property, and count 4 because anything less would have been pointless and thus would have constituted ineffective assistance of counsel. We disagree.
In order to establish a claim of ineffective assistance of counsel, defendant must “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (Peoplev. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) In evaluating counsel’s actions at trial, “A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (People v. Dennis, supra, at p. 541.)
In this case, a trial strategy is obvious. Defense counsel could have reasonably concluded that a motion to reduce count 3 to a misdemeanor was pointless given the evidence that defendant was caught with the stolen jewelry in the pocket of his sweatshirt and thus had clearly committed the crime of receiving stolen property as alleged in that count. Rather than make a motion destined for failure, defense counsel could reasonably have decided to limit the section 17, subdivision (b) motion to count 4, and then urge the trial court to strike one or more of defendant’s prior serious felony convictions in order to avoid the mandatory three strikes sentence of 25 years to life. Defendant did file a motion to strike in this case that the trial court also denied, a ruling defendant does not challenge in this appeal. Accordingly, we limit our discussion to count 4, the only count to which defendant directed his section 17, subdivision (b) motion.
Defendant contends the trial court abused its discretion in denying his motion to reduce count 4 to a misdemeanor because the trial court considered only the fact of defendant’s recidivism in ruling on that motion. In his reply brief defendant also claims that the trial court did not understand the full extent of his sentencing discretion and incorrectly believed that in a three strikes case such as this the trial court could only consider defendant’s recidivism. Neither claim is supported by the pertinent law or the record on appeal.
We need not address issues raised for the first time in a reply brief. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.”].)
Under section 17, subdivision (b) a trial court in its discretion may treat a wobbler (a crime punishable as either a felony or a misdemeanor), such as the crime of possessing methamphetamine at issue here, as a misdemeanor. The crime is presumptively a felony and “‘remains a felony except when the discretion is actually exercised’” to make the crime a misdemeanor. (People v. Williams (1945) 27 Cal.2d 220, 229, italics omitted.) A trial court in its discretion may reduce a wobbler charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a three strikes sentence. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978-979 (Alvarez).) The factors relevant to an exercise of discretion under section 17, subdivision (b) include “‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, [former] rule 410.” (Alvarez, at p. 978, fn. omitted.) No one factor predominates, although trial courts have discretion to “weight the various sentencing considerations commensurate with the individual circumstances.” (Id. at p. 979.)
The fact that a wobbler is one of the charges in a three strikes case does not “invariably or inevitably militate against reducing the charge to a misdemeanor. Nonetheless, the current offense cannot be considered in a vacuum; given the public safety considerations underlying the three strikes law, the record should reflect a thoughtful and conscientious assessment of all relevant factors including the defendant’s criminal history. [Citations.]” (Alvarez, supra, 14 Cal.4th at p. 979.) The reduction of a wobbler to a misdemeanor is not based on the notion that a wobbler offense is “conceptually a misdemeanor.” (Necochea v. Superior Court (1972) 23 Cal.App.3d 1012, 1016.) Rather, it is “intended to extend misdemeanant treatment to a potential felon” and “extend more lenient treatment to an offender.” (Ibid.)
As recounted above, in denying defendant’s motion the trial court recounted the pertinent inquiry-that it needed to consider the circumstances of the current crime, which included both the methamphetamine conviction and defendant’s conviction for receiving stolen property, and defendant’s criminal history. Because defendant made his section 17, subdivision (b) motion at his sentencing hearing, we must also presume the trial court considered the information included in the probation officer’s sentencing report. Although in explaining its ruling the trial court focused on defendant’s recidivism, that does not mean the trial court failed to consider the other appropriate factors. “The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
The record in this case does not affirmatively demonstrate that the trial court failed to consider the relevant factors and therefore defendant has not demonstrated that the trial court’s ruling is erroneous or an abuse of discretion.
B. Cruel and Unusual Punishment
As his final claim, defendant contends his three strikes sentence of 25 years to life in state prison violates both the state and federal constitutional prohibitions against cruel and unusual punishment. Again, we must disagree.
“‘“The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendant’s ‘personal responsibility and moral guilt.’ [Citations.] Article I, section 17 of the California Constitution separately and independently lays down the same prohibition.”’ [Citations.]” (People v. Lucero (2000) 23 Cal.4th 692, 739.) “[A] punishment may violate the California constitutional prohibition [against cruel and unusual punishment (Cal. Const., art. I, § 17)] ‘if... it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Dillon (1983) 34 Cal.3d 441, 478, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) In determining whether a sentence is cruel and unusual under California law, this court considers three factors. First, we look at “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Lynch, supra, at p. 425.) Next, we “compare the challenged penalty with the punishments prescribed” in the same jurisdiction for more serious crimes (id. at p. 426); and third, we compare the challenged punishment with punishments prescribed for the same offense in other jurisdictions (id. at p. 427).
The California Supreme Court has also held, provided a punishment is proportionate to the defendant’s individual culpability, what the court referred to as “intracase proportionality,” that there is no requirement it be proportionate to the punishments imposed in other similar cases, what the court dubbed “intercase proportionality.” (People v. Webb (1993) 6 Cal.4th 494, 536; People v. Mincey (1992) 2 Cal.4th 408, 476; People v. Miller (1990) 50 Cal.3d 954, 1010.) In other words, a determination of whether a punishment violates the state constitutional prohibition against cruel and unusual punishment 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; see, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482- 488; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
Defendant also contends that his sentence violates the federal constitutional prohibition against cruel and unusual punishment. Although his brief includes a section heading entitled “Analysis of the Sentence under the United States Constitution,” the section does not actually include any analysis. Instead, it recounts the pertinent federal constitutional principles but defendant does not apply those principles to his particular sentence. We assume the omission is because defendant cannot distinguish his circumstances from those in Ewing v. California (2003) 538 U.S. 11, in which a majority of the United States Supreme court held that the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. The court held the Eighth Amendment does not prohibit 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. (Ibid.;see Lockyer v. Andrade (2003) 538 U.S. 63.) Comparing defendant’s current crimes and his criminal history with those of defendant 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 does not dispute the relevant legal principles, or offer a different analysis of the various cases that have addressed and rejected the precise claim defendant asserts in this appeal. Instead, he argues that the facts of his case are like those in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony), in which the Third District Court of Appeal held that the mandatory three strikes 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.)
In Carmony, 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.” (Carmony, supra, 127 Cal.App.4th 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. (Carmony, at p. 1072.)
His contrary view notwithstanding, defendant’s current crimes bear no similarity to the crime in Carmony, which that court characterized as “willful failure to file a duplicate registration as a sex offender.” (Carmony, supra, 127 Cal.App.4th at p. 1086.) Unlike the defendant in Carmony, defendant in this case engaged in overt criminal conduct by possessing methamphetamine and receiving stolen property. In contrast, the crime in 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.” (Id. at p. 1086.) As the Carmony 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 that rare case. The sentence in this case is indisputably harsh. But harsh sentencing is not prohibited under the state or federal Constitutions. Defendant has three prior felony convictions for first degree burglary (§ 459) in 1989, 1990, and 2001. He committed his current crimes of receiving stolen property and possession of methamphetamine in 2008. His crimes are not mere regulatory violations, such as the crime at issue in Carmony. Defendant has not demonstrated that his three strikes sentence violates either the state or federal Constitution and therefore we must affirm.
DISPOSITION
The judgment is affirmed.
We concur: Richli J., Miller J.