Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. SC114626A
Reardon, Acting P.J.
After a jury convicted appellant Ali Foroutan of possession of methamphetamine, his motion to strike his two prior burglary convictions was denied. (See Pen. Code, § 1385.) He was sentenced to a term of 25 years to life pursuant to the Three Strikes law. (See §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(c).) On appeal, Foroutan contends that (1) the trial court abused its discretion by failing to strike one of his prior convictions; (2) his life sentence constitutes cruel and unusual punishment; and (3) he is being punished a second time for his prior burglary convictions in violation of his due process rights. He asks us to reverse his sentence and remand for a sentence that will not result in a life term. We affirm the judgment, including the sentence.
All statutory references are to the Penal Code unless otherwise indicated.
See, e.g., Zimring et al., Punishment and Democracy/Three Strikes and You’re Out in California (2001), p. 119 (Zimring), there is an “extreme difference in punishment between third-strike felons who are sentenced under the terms of the law and the great majority of those eligible for third-strike sanctions who are not so prosecuted”; Note, A Swing and a Miss: California’s Three Strikes Law (1996) 17 Whittier L.Rev. 651, 687-688 [“The disparate application of the Law has the potential to lead to unjust results. If two defendants are convicted of the same crime in different counties, one may receive probation, while the other may receive a sentence of twenty-five years to life. This inconsistency is a result of a flawed version of the statute being enacted, therefore prohibiting the consistent application of the Law from county to county . . . .”]; Vitiello, Reforming Three Strikes’ Excesses (2004) 82 Wash. L.Q. 1, 21-22 [“Trial Courts and prosecutors are exercising their discretion in widely different ways around the state. That has led to county-by-county variations, which has resulted in ‘uneven justice,’ and undercut the law, which aimed for uniform treatment of defendants. Disparity derives from widely different attitudes towards the law in different counties across the state. Even if some discretionary regional differences are inevitable, in some parts of the state prosecutors are still using Three Strikes in questionable cases, ones in which punishment is likely to be excessive—that is, the amount of anticipated social protection does not justify the long terms of imprisonment imposed on some of the defendants currently incarcerated under the law.”].
Foroutan’s case has been before our Division before. (People v. Foroutan (Jan. 26, 2005, A101159) [nonpub. opn.].) We take judicial notice of the record in his earlier appeal and draw on our decision in that matter as a source for this statement of facts. (See Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a)(1).)
Males and Macallair, Striking Out: The Failure of California’s “Three Strikes and You’re Out” Law (1999) 11 Stan. L.&P.Rev. 65, 68, 71, table 6.
A jury convicted appellant Ali Foroutan of two felonies committed in 2000—possession of methamphetamine and using an access card without the consent of the cardholder. (See § 484g, subd. (a); former Health & Saf. Code, § 11377, subd. (a) [as amended by Stats. 1999, ch. 975, § 3].) Allegations that he had suffered two prior serious felony convictions for residential burglaries committed in 1990 and 1992 were found to be true. (See §§ 1170.12, subds. (a)-(c), 1203, subd. (e)(4); see former § 667.5, subd. (b) [Prop. 21, § 15, approved Mar. 7, 2000, eff. Mar. 8, 2000].) After trial, he moved to dismiss these prior convictions and to reduce his felony possession of methamphetamine conviction to a misdemeanor, without success. (See §§ 17, subd. (b), 1385.) In 2002, Foroutan was sentenced to 50 years to life in prison—two consecutive terms of 25 years to life for each of the offenses committed in 2000.
The jury also convicted him of misdemeanor possession of a smoking device and acquitted him of residential burglary. He was sentenced to a concurrent six-month jail term for this conviction.
Hearing before the Sen. Com. on Judiciary on Guidelines Drafted by the U.S. Sentencing Commission, 100th Cong., 1st Sess., pp. 13, 14 (1987), remarks of Hon. Wilkins, Chairman, U.S. Sentencing Commission; see also Sen. Rep. No. 98-225, 2d Sess. (1984), reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3229.
In 2005, we reversed Foroutan’s conviction for misuse of an access card, but upheld his conviction for felony possession of methamphetamine on appeal. His case was remanded for resentencing. (People v. Foroutan, supra, A101159.) In 2007, the trial court again denied his motion to strike his residential burglary convictions and to reduce his felony possession conviction to a misdemeanor. (See §§ 17, subd. (b) [wobbler deemed misdemeanor if trial court so designates it], 1385; former Health & Saf. Code, § 11377, subd. (a) [possession of methamphetamine as wobbler].) He was sentenced to a term of 25 years to life in state prison for his possession of methamphetamine conviction.
II. MOTION TO STRIKE
When the trial court denied Foroutan’s motion to strike his prior convictions at his 2007 sentencing hearing, it declared itself unable to articulate any circumstances justifying deviation from application of the Three Strikes law. It noted his antisocial tendencies, his history of drug usage and his string of residential burglaries. On appeal, Foroutan contends that the trial court abused its discretion by failing to strike one of his two prior convictions. (See § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).)
Acting in the interests of justice, a trial court has limited discretion to strike one or more prior convictions that constitutes strikes under the Three Strikes law. (See People v. Williams (1998) 17 Cal.4th 148, 151-152 (Williams); People v. Cline (1998) 60 Cal.App.4th 1327, 1337; see also § 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530 [prior conviction allegation].) This discretion includes the power to strike a prior conviction at sentencing after the prior has been pled and proven. (Romero, supra, 13 Cal.4th at p. 524, fn. 11.) This exercise of discretion is broad, but not absolute. It is limited in the sense that it must further the interests of justice. Both the rights of the defendant and those of the society represented by the People must be considered when determining whether striking a prior conviction that constitutes a strike under the Three Strikes law is appropriate. (Williams, supra, 17 Cal.4th at pp. 158-161; Romero, supra, 13 Cal.4th at p. 530; People v. Cline, supra, 60 Cal.App.4th at p. 1337.)
A sentencing court applies stringent standards in order to find an exception to the sentencing norm set out in the Three Strikes law. (People v. Carmony (2004) 33 Cal.4th 367, 377-378 (Carmony).) When exercising its discretion to strike a prior conviction that would constitute a strike under the Three Strikes law, the trial court should consider the nature and circumstances of the present felony and any prior serious felony conviction, and the defendant’s background, character and prospects in order to determine whether he or she may be deemed to be outside the spirit of the Three Strikes sentencing law and thus should be treated as if he or she had no prior conviction for a serious felony. (Id. at p. 377; see People v. Garcia (1999) 20 Cal.4th 490, 500; Williams, supra, 17 Cal.4th at p. 161.) This individualized approach allows the trial court to tailor a given sentence to suit the individual defendant. The trial court must be aware that its decision to strike a prior conviction creates an exception to the Three Strikes sentencing scheme that should be made because this defendant should be treated as if he or she actually fell outside the reach of this law. (People v. Cluff (2001) 87 Cal.App.4th 991, 1004; People v. McGlothin (1998) 67 Cal.App.4th 468, 474; see Carmony, supra, 33 Cal.4th at p. 377.) There is a strong presumption that a sentence conforming to the normal application of the Three Strikes law is rational and proper. As such, a trial court that departs from this sentencing norm must state a reason justifying that decision. (Carmony, supra, 33 Cal.4th at p. 378.)
On appeal, a denial of a motion to strike a prior conviction that constitutes a strike is reviewed for an abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 374-376; see Williams, supra, 17 Cal.4th at pp. 152, 158-159, 162; see also Romero, supra, 13 Cal.4th at pp. 531-532.) That standard of review is deferential to the trial court, but not empty. We consider whether the decision of the trial court falls outside the bounds of reason under the applicable law and the relevant facts. (Williams, supra, 17 Cal.4th at p. 162; see People v. Strong (2001) 87 Cal.App.4th 328, 336; People v. Myers (1999) 69 Cal.App.4th 305, 309.) Examples of an abuse of discretion include dismissal for judicial convenience; to reduce court congestion; solely because the defendant pled guilty; or because the trial court has a personal antipathy to the effect that the Three Strikes law would have on a defendant generally, ignoring any individualized considerations. (Williams, supra, 17 Cal.4th at p. 159; see Romero, supra, 13 Cal.4th at pp. 531-532; People v. Cline, supra, 60 Cal.App.4th at p. 1337.)
It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. If the record shows that the trial court balanced the relevant facts and reached an impartial decision conforming to the spirit of the law, we will affirm its ruling even if we might have ruled differently if the issue were posed to us in the first instance. (Carmony, supra, 33 Cal.4th at pp. 377-378; People v. Myers, supra, 69 Cal.App.4th at p. 310; see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [trial court’s discretion to reduce wobbler to misdemeanor] (Alvarez).) Foroutan—the party attacking the sentence—must show that the trial court’s sentencing decision was irrational or arbitrary. (See Carmony, supra, 33 Cal.4th at p. 376; see also Alvarez, supra, 14 Cal.4th at p. 977.) If he cannot do so, then we presume that the trial court acted to achieve legitimate sentencing objectives and, on appeal, we will not overturn its exercise of its discretion. (See Carmony, supra, 33 Cal.4th at pp. 376-377; see also Alvarez, supra, 14 Cal.4th at pp. 977-978.) Thus, in order to prevail on appeal, Foroutan must establish that the trial court’s decision was so irrational or arbitrary that no reasonable person could agree with it. Only in an extraordinary case will a defendant be able to demonstrate that a trial court’s failure to strike a prior conviction constituted an abuse of discretion. (See, e.g., Carmony, supra, 33 Cal.4th at pp. 377-378; People v. Strong, supra, 87 Cal.App.4th at p. 338.)
When we apply the facts of Foroutan’s case to these legal standards, we conclude that he has not shown that the trial court’s decision not to strike one or both of his prior convictions constituted an abuse of its discretion. At the time of Foroutan’s first residential burglary conviction for three counts of burglary, he admitted that he committed these offenses during a time in his life when he was using drugs. Placed on probation for this offense, he continued to abuse drugs. His more recent conviction for possession of methamphetamine suggests that the same drug abuse that led him to commit one or more burglaries a decade earlier was still at work in his life in 2000. Foroutan’s drug abuse, his lack of success after participating in a residential treatment program and his poor performance on probation in the past suggest that he falls within the spirit of the Three Strikes sentencing scheme. (See Carmony, supra, 33 Cal.4that p. 377.)
Foroutan reasons that his prior residential burglary convictions are less culpable than other strikes because neither was a violent offense. This argument ignores the intent of the Three Strikes law to punish both those who have suffered prior convictions for serious offenses such as residential burglary and those who have repeatedly committed violent offenses in the past. (See §§ 667, subds. (b), (d)(1), 1170.12, subd. (b)(1); see former §§ 667.5, subd. (c) [listing violent felonies], 1192.7, subd. (c) [listing serious felonies].)
Ballot Pamp., Gen. Elec. (Nov. 8, 1994) argument in favor of Prop. 184, p. 36.
Foroutan argues that the trial court improperly focused on his prior residential burglary convictions alone—ignoring the current offense of possession of methamphetamine—when denying his motion to strike those prior convictions. We disagree with his assessment of the facts. When it denied his motion to strike his prior convictions, the trial court mentioned both his methamphetamine use—an implied reference to his possession of a useable amount of methamphetamine—and his prior residential burglary convictions. It found that no circumstances warranting the striking of his prior convictions had existed at the time of the original sentencing in 2002 and that there was no substantial change in his circumstances between that date and resentencing in 2007. These facts are appropriate factors for the trial court to consider. (See, e.g., Carmony, supra, 33 Cal.4that p. 377.)
Foroutan focuses on two cases that he cites in support of his claim of error. He begins by citing Alvarez, supra, 14 Cal.4th 968, in which the California Supreme Court found that a trial court acted within its discretion when it reduced a current felony conviction for possession of 0.41 grams of methamphetamine to a misdemeanor, despite the defendant’s four prior convictions for residential burglary (see id. at pp. 973-974, 980-982). This exercise of discretion resulted in the defendant being sentenced to a jail term, instead of a lengthy prison term pursuant to the Three Strikes law. (Id. at pp. 973-976.) Foroutan reasons that his circumstances present a stronger case for declining to apply the Three Strikes sentencing scheme, as he was found in possession of a lesser amount of methamphetamine—specifically, 0.03 grams.
We find Alvarez to be distinguishable. The issue in Alvarez differs from that presented in Foroutan’s appeal. In the cited case, the California Supreme Court considered whether the trial court properly exercised its discretion to reduce a new felony conviction to a misdemeanor pursuant to section 17, subdivision (b). That discretion is quite broad, while the discretion to strike prior convictions—the issue pending before us in this appeal—is more limited. (See §§ 17, subd. (b), 1385; Alvarez, supra, 14 Cal.4th at pp. 972-973, 976 [broad section 17, subdivision (b) discretion]; see also Williams, supra, 17 Cal.4th at pp. 158-159.) Even when the trial court had this broad discretion, the California Supreme Court acknowledged that its decision on whether the trial court abused that discretion was a close one. (Alvarez, supra, 14 Cal.4th at p. 980.) The procedural stance of the two appeals also differs. In Alvarez, the issue was whether the trial court properly granted a motion to reduce the current offense, while, in the case before us, the issue is whether the trial court abused its discretion when denying a motion to strike one or both of Foroutan’s prior convictions. Thus, we find that Alvarez is distinguishable from the case before us.
Foroutan also cites People v. Cluff, supra, 87 Cal.App.4th 991 as a case comparable to his own. He reasons that Cluff supports the conclusion that a prior conviction should be stricken whenthe nature of his current offense did not demonstrate recidivist tendencies. In Cluff, the appellate court found that the trial court abused its discretion in denying the defendant’s motion to strike his prior convictions when his current offense for failing to register as a sex offender was a technical one. (Id. at p. 994.) However, the California Supreme Court itself has distinguished Cluff because the trial court abused its discretion in failing to strike the defendant’s prior convictions in reliance on facts unsupported by the record. (Carmony, supra, 33 Cal.4th at p. 379; see People v. Poslof (2005) 126 Cal.App.4th 92, 109; People v. Cluff, supra, 87 Cal.App.4th at p. 998.) As there is no evidence that the trial court in our case exercised its discretion on the basis of improper or unsupported facts, we conclude that Cluff does not support Foroutan’s claim of error.
We also note that while the trial court was asked to reduce Foroutan’s conviction for possession of methamphetamine—a wobbler offense—from a felony to a misdemeanor, it opted not to exercise that discretion. (See § 17, subd. (b); former Health & Saf. Code, § 11377, subd. (a).) He does not challenge the trial court’s denial of his motion to reduce his current conviction to a misdemeanor.
See, e.g., In Re Saldana (1997) 57 Cal.App.4th 620, 623-624 [defendant convicted of possession of .88 grams of heroin while on parole; two prior strikes for residential burglary and robbery; court struck residential burglary strike because it was remote in time, because the current offense was minor, and because of defendant’s good conduct in prison, his family’s support, his age, and his willingness to participate in methadone treatment program; defendant sentenced to four years in prison]; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 973-974, 981 [defendant convicted of possession of .41 grams of methamphetamine, with four prior strikes for residential burglaries; also had four misdemeanor convictions; served seven-year prison sentence for one of the burglaries and violated parole on several occasions; trial court reduced drug possession charge to misdemeanor and sentenced defendant to three years’ probation on condition of one year of county jail time]; cf. People v. Carmony (2005) 127 Cal.App.4th 1066, 1072-1072, 1080 & fn. 9 [39-year-old defendant released from prison in 1999, after serving nearly three-year sentence for failure to register as a sex offender; after initial registration, within two months he failed to file duplicate registration; defendant had not moved, was married, and was employed; prior crimes were sex offense in 1983, and two violent felonies in 1992, both assaults by means of force likely to produce great bodily injury—he punched and kicked a pregnant girlfriend causing a miscarriage, and he punched, pushed, and cut the hand of another girlfriend; appellate court held 26 years to life sentence under Three Strikes law unconstitutional because prior offenses were “remote” and current offense was merely technical and did not pose a threat to public safety].
In this matter, the trial court made a thoughtful analysis of the appropriate facts and circumstances underlying the prior convictions. It heard and considered Foroutan’s argument before making its ruling. We find that Foroutan has not met his burden of proving that the trial court abused its discretion when denying his motion to strike his prior convictions. (See Carmony, supra, 33 Cal.4th at pp. 378-379; see, e.g., People v. Philpot (2004) 122 Cal.App.4th 893, 906-907.)
III. CRUEL AND/OR UNUSUAL PUNISHMENT
A. Federal Ban
Foroutan also contends that his sentence constitutes cruel and/or unusual punishment within the meaning of the federal and state bans on such punishment. (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) He reasons that his 25 years to life sentence is disproportionate to the underlying offense of possession of methamphetamine. He raised a federal cruel and unusual punishment claim in the trial court, without success. As the federal and state standards vary somewhat, we consider each in turn.
Foroutan contends that we should apply a three-pronged analysis used in a 1983 United States Supreme Court case when determining whether an Eighth Amendment violation has occurred. (See Solem v. Helm (1983) 463 U.S. 277, 292.) However, the high court has since discredited that analysis. (See Harmelin v. Michigan (1991) 501 U.S. 957, 965 (lead opn. of Scalia, J.), 997-998 (conc. opn. of Kennedy, J.); see People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1135 [noting Solem’s analysis was not applied in Harmelin].) More recently, the United States Supreme Court rejected the notion that the Eighth Amendment requires strict proportionality between crime and sentence, finding instead that it only forbids extreme sentences that are grossly disproportionate to the crime. In most cases, it will be unnecessary to compare punishments within and without the jurisdiction; consideration of the gravity of the offense and the harshness of the penalty alone will usually be sufficient to uphold a sentence. (See Harmelin v. Michigan, supra, 501 U.S. at pp. 1001, 1004-1005 (conc. opn. of Kennedy, J.) [three-judge concurring opinion; two other judges would have overruled Solem, rejecting its three-pronged analysis]; People v. Cartwright, supra, 39 Cal.App.4th at p. 1135.)
The United States Constitution bars the infliction of any cruel and unusual punishment. (U.S. Const., 8th Amend.) Under the federal standard, even a cruel punishment may be constitutional as long as it is not unusual. (See Harmelin v. Michigan, supra, 501 U.S. at pp. 994-995 (lead opn. of Scalia, J.).) A punishment that is grossly disproportionate to the severity of the crime violates the Eighth Amendment. However, it is exceptionally rare for a noncapital punishment to fail the federal proportionality test. (Ewing v. California (2003) 538 U.S. 11, 19, 21 (plur. opn. of O’Connor, J.); see Rummel v. Estelle (1980) 445 U.S. 263, 271-272.) The United States Supreme Court has consistently upheld mandatory sentencing schemes for habitual offenders, including California’s Three Strikes law. (See Lockyer v. Andrade (2003)538 U.S. 63, 77; see also Ewing v. California, supra, 538 U.S. at pp. 30-31 (plur. opn. of O’Connor, J.); Harmelin v. Michigan, supra, 501 U.S. at pp. 994-995 (lead opn. of Scalia, J.); Rummel v. Estelle, supra, 445 U.S. at p. 284; Spencer v. Texas (1967) 385 U.S. 554, 567-569.) It routinely upholds lengthy sentences for less serious offenses. (See Lockyer v. Andrade, supra, 538 U.S. at pp. 72-77 [upholding two consecutive 25 years to life terms following third strike petty theft conviction]; see also Ewing v. California, supra, 538 U.S. at pp. 20-31 (plur. opn. of O’Connor, J.) [upholding 25 years to life sentence under Three Strikes law for theft of three golf clubs].) Thus, we conclude that Foroutan’s sentence will pass Eighth Amendment muster as long as it was correctly imposed pursuant to our state’s Penal Code.
Foroutan’s sentence was properly calculated according to the terms of the 2000 California Penal Code. (See §§ 17, subd. (a), 667, subds. (c), (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii); see former § 1192.7, subd. (c)(18); former Health & Saf. Code, § 11377, subd. (a).)
B. California Ban
The California Constitution bans all cruel or unusual punishment. (Cal. Const., art. I, § 17.) We apply a three-pronged test to determine whether a punishment is cruel or unusual. (See In re Lynch (1972) 8 Cal.3d 410, 425-427; People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433.) First, a punishment violates the California Constitution if it is so disproportionate to the underlying crime that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424; People v. Cartwright, supra, 39 Cal.App.4th at p. 1136.) In making a proportionality determination, the court looks at the abstract nature of the offense, the nature of the offender, and the circumstances of the offense committed. (People v. Dillon (1983) 34 Cal.3d 441, 479.) Relevant factors include the perpetrator’s age, criminal background, state of mind and motive; the manner in which he or she committed the crimes; the consequences of those acts; and the danger that he or she poses to society. (Ibid.; People v. Cartwright, supra, 39 Cal.App.4th at p. 1136 .)
Foroutan argues that his 25 years to life sentence is disproportionate to the crimes for which he has been convicted. He reasons that his possession offense is extremely minor with little impact on society. He urges us to view his prior convictions as nonviolent, remote in time and unconnected to his current conviction for possession of methamphetamine. He contends that he poses no threat to society. We disagree with Foroutan’s assessment of the underlying facts. We find a drug-related connection between the current offense for possession of methamphetamine and his prior convictions for burglaries committed during a time when drugs held a significant sway over his life. (See pt. II., ante.) Foroutan also discounts the significant societal consequences of the personal use of illegal drugs. (See Harmelin v. Michigan, supra, 501 U.S. at p. 1002 (conc. opn. of Kennedy, J.).) His sentence for the offenses of which he has been convicted—in 2000 and before—does not shock the conscience within the meaning of the first prong of the Lynch analysis.
The second prong of the Lynch analysis requires us to compare the challenged punishment with that prescribed for more serious crimes within California. (In re Lynch, supra, 8 Cal.3d at p. 426; People v. Romero, supra, 99 Cal.App.4th at p. 1433.) Foroutan’s argument in this regard is flawed because he mischaracterizes his life sentence as having been imposed for simple possession of a small amount of methamphetamine. In fact, he was sentenced to 25 years to life in prison because he committed felony possession of methamphetamine after having already suffered two prior serious felony convictions for residential burglary. The commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) As Foroutan was sentenced as an habitual criminal, we do not compare his sentence with the penalty for a single offense, but compare his life term with other sentences given to other recidivists. (See People v. Romero, supra, 99 Cal.App.4th at p. 1433; People v. Cluff, supra, 87 Cal.App.4th at p. 997 [Three Strikes punishment not disproportionate].)
Foroutan argues that his sentence is inappropriate because it is greater than those imposed for one convicted of a single offense of second degree murder, voluntary manslaughter, rape or lewd and lascivious conduct with a minor. (See §§ 190, subd. (a) [15 years to life for second degree murder], 264, subd. (a) [8 years for forcible rape]; former §§ 193, subd. (a) [11 years for voluntary manslaughter] [as amended by Stats. 1998, ch. 278, § 2], 288, subd. (a) [8 years for lewd and lascivious conduct with minor] [as amended by Stats. 1998, ch. 925, § 2].) When we compare these California sentences for these single offenses when coupled with two prior serious felony convictions as Foroutan’s offense was, the sentences would be imposed pursuant to the Three Strikes sentencing law, which would be comparable to Foroutan’s sentence. (See §§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii); former § 1192.7, subd. (c)(1), (3), (6).) Thus, we reject Foroutan’s claim that a sentence of 25 years to life for a third time offender does not compare with other sentences imposed on third time offenders in California.
Under the third prong of the Lynch analysis, we compare Foroutan’s sentence with sentences for similar sets of offenses in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at p. 427; People v. Romero, supra, 99 Cal.App.4th at p. 1433.) Foroutan argues that his 25 years to life sentence was too stringent when viewed in this manner. Admittedly, California’s Three Strikes law is one of the most severe recidivist statutes in the United States. However, that fact alone does not compel the conclusion that it is unconstitutionally cruel or unusual. (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) Considering all three prongs, we find that Foroutan has not established that his sentence was cruel or unusual in violation of the state constitution.
IV. DUE PROCESS
Finally, Foroutan argues that his life term constitutes a second punishment for his prior burglary convictions in violation of his federal due process rights. (See U.S. Const., 5th & 14th Amends.) As he did not raise this issue in the trial court, it is unclear whether this due process issue was preserved for our consideration on appeal. (See People v. Padilla (1995) 11 Cal.4th 891, 971, cert. den. sub nom. Padilla v. California (1996) 519 U.S. 835, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116 fn. 20, cert. den. sub nom. Rodrigues v. California (1995) 516 U.S. 851.) Assuming arguendo that we could reach the merits of this claim of error, we would find no due process violation occurred.
This claim of error is based on Foroutan’s assertion that his current offense of possession of methamphetamine was too insignificant a triggering offense to warrant the imposition of a sentence of 25 years to life. In effect, he argues, he is being punished a second time for his prior burglaries in violation of his due process rights and his right not to be placed twice in jeopardy. We disagree with his characterization of the facts. Despite his attempt to characterize his sentence otherwise, we are satisfied that Foroutan is being punished for his recidivism, not simply for his prior convictions. (See, e.g., People v. Cline, supra, 60 Cal.App.4th at pp. 1337-1338.)
The only case that Foroutan cites in support of his legal theory is the decision of a federal trial court. (See Banyard v. Duncan (C.D.Cal. 2004) 342 F.Supp.2d 865, 874 [dicta; holding was that sentence constituted cruel and unusual punishment].) A decision of a lower federal court interpreting federal law does not bind us in state court. (People v. Williams (1997) 16 Cal.4th 153, 190.)
The judgment—including the sentence—is affirmed.
I concur: Sepulveda, J.
Concurring Opinion of Rivera, J.
I concur in the judgment because the law requires that we affirm any sentencing decision unless it “ ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams (1998) 17 Cal.4th 148, 162.) I write separately to echo concerns by commentators that the disparity of treatment in cases like these produces such uneven results as to jeopardize the integrity of the law.
To place this concern in context, a few more details about Foroutan’s case are necessary.
A. Foroutan’s Crimes and Sentencing
The three burglaries committed in 1989—comprising the first strike—were unquestionably serious crimes, not merely because the law holds them to be serious but because they involved extensive ransacking of the burgled homes and the theft of many thousands of dollars worth of items, including a “ ‘family heritage’ ” gun collection. Nevertheless, the 1990 presentence report concluded that the burglaries were not so serious as to justify the upper term; sentencing was recommended at the midterm because the “[c]ircumstances in mitigation and aggravation are relatively balanced.” The court sentenced defendant to six years eight months in prison, but execution of the sentence was suspended on condition of one year of county jail time, five years probation, residential drug treatment and restitution. So, despite the seriousness of these crimes, the court did not consider defendant to be particularly dangerous or to require lengthy incarceration.
The second strike was a 1992 burglary Foroutan committed while on probation. In contrast to the previous crimes, it was a minor offense. It involved the breaking or forcing of a window in an attempt to enter the home of an individual who, it was argued, was an acquaintance. Defendant and his accomplice were “chased away” by the homeowner. Foroutan did not complete the break-in, steal any items, or threaten the occupant. After pleading guilty, Foroutan served approximately five years in prison.
The third strike sentencing offense, of which Foroutan was convicted, was possession of 3/100ths of a gram of methamphetamine. At the same time, he was charged with, but acquitted of, burglary. He was also convicted of a related credit card offense, but that charge was dismissed by the district attorney in the “furtherance of justice” after reversal of the conviction for instructional error.
Foroutan consistently stated that his crimes were fueled by his drug habit. He began abusing alcohol and drugs at an early age. As a child, Foroutan was subjected to abusive treatment by his father and harassment by his classmates. Foroutan’s father also abused alcohol and drugs.
At sentencing Foroutan was supported not only by family members, but also by one of his former victims who actively opposed imposition of a sentence of 25 years to life. An alcohol/drug assessment conducted by Foroutan’s counselor while he was incarcerated, stated that Foroutan’s “motivation is in the right place to make some remarkable changes in his life.” The report concluded that Foroutan was amenable to treatment, but only in a “long term highly structured Residential Treatment Program such as Delancey Street.” Foroutan had applied to and was accepted by Delancey Street and “seems highly motivated to enter and complete” the program. “Prognosis is favorable due to client’s motivation.”
The presentence report, however, recommended imposition of the maximum sentence under the Three Strikes law, describing Foroutan as a habitual criminal. “When things start going badly for him, he resorts to drug use and then to criminality to support his drug habit.” Defendant is further described as a person with many resources who “chooses to ignore these positive resources and involve himself in substance abuse and criminality.” Therefore, it was “Probation’s position that Ali Foroutan meets the criteria for those criminals for whom the 3-Strikes Law was designed in order to protect society.”
Foroutan was 38 years old at the time of his sentencing in July 2007.
No one contends that Foroutan has ever engaged in violent criminal behavior, or in violence of any kind.
Had the trial court granted Foroutan’s motion to strike one of the strikes, his maximum sentence would have been six years in prison. (Health & Saf., Code, § 11377, subd. (a); Pen. Code, §§ 18, 1170.12, subd. (c)(1).)
B. Disparate Sentencing
Our decision to uphold Foroutan’s 25 years to life sentence is legally correct, but the case presents a close question. In my view, the trial court’s discretion here, although circumscribed to some degree by Williams and People v. Cline (1998) 60 Cal.App.4th 1327, would have been broad enough to encompass the granting of Foroutan’s motion and the issuance of a two-strike sentence of up to six years. As Foroutan has pointed out, other similarly situated three-strike defendants have received far more lenient sentences. (See fn. 5, p. 6, post.) To be sure, those cases can be distinguished, as every case depends upon its unique set of facts. Nevertheless, as was asked at oral argument, should the courts be unconcerned about dramatic disparities in third strike sentencing?
The wide divergence in charging and sentencing practices under the Three Strikes law has been documented in a number of articles and at least one book.1 For example, one study showed that in Alameda County second and third strike felony convictions comprise only 5.9 per 1,000 felony convictions, while San Diego’s rate is 35.3 per 1,000 felony convictions.2 This kind of random enforcement of the Three Strikes law “produces circumstances of extreme disproportionality of punishment when the occasional burglar or pickpocket is given a prison sentence grossly in excess of the punishments administered to other defendants equally culpable in the eyes of the law.” (Zimring, supra, at p. 123.) The question is whether such disparate applications of the law are likely to undermine public trust in the Three Strikes law and our criminal justice system.
A note published in the New York University Law Review argues that they will. “Imagine . . . that the legislature announced that any felony could constitute a third strike in San Diego, but that only a violent or serious crime would trigger the law in San Francisco or Alameda [County]. Such a Solomonic law would be a checkerboard statute and an affront to integrity. As applied, this is the Three Strikes law in California. Within the borders of California no one principle of Three Strikes justice dominates. Instead, cacophony has displaced coherence.” (Note, “The Integrity of the Game Is Everything”: The Problem of Geographic Disparity in Three Strikes (2001) 76 N.Y.U. L.Rev. 1164, 1182.) The result of this disparity of application, the author contends, “is a lack of coherence in California’s criminal law and a lack of integrity in its justice system.” (Id. at p. 1202.)
There will always be some differences in sentencing among the counties, or even within a county from judge to judge. The system can tolerate these differences as long as they are rational and within acceptable ranges, such as choices among the lower, middle and upper term of a sentencing triad. Few would argue, however, that the choice of one judge to impose a four- or six-year sentence and of another to impose a 25 years to life sentence, for similarly situated defendants, offers that kind of tolerable range. As the chairman of the U.S. Sentencing Commission stated in a hearing on proposed federal sentencing guidelines, “[u]nwarranted disparity [in sentencing practices] breeds disrespect for the law, and it undermines public confidence in our system.”3
The Three Strikes law is unquestionably an important weapon in our penological arsenal that can remove from society that cohort of dangerous, unrepentant, recidivist criminals who prey upon the innocent citizenry. As the ballot argument for the initiative stated, the Three Strikes law was intended to “keep[] career criminals, who rape women, molest innocent children and commit murder, behind bars where they belong.”4 But cases involving violent crimes are not the ones that generate variances in sentencing. The problem lies in the disparate treatment of the difficult case, such as the one before us. When a petty offense lands one defendant, with two property-crime strikes but no history of violence, in prison for 25 years to life, but another defendant with similar circumstances and a virtually identical criminal record is sentenced to a few years in prison or put on probation,5 we can expect a consequent cynicism and distrust toward the law and our criminal justice system.