Opinion
F048416
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. KIM LOBOU GAMBLE, Defendant and Appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Assistant Attorney General, Stephen G. Herndon and Jeanne R. Wolfe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Harris, Acting P.J., Dawson, J. and Kane, J.
STATEMENT OF THE CASE
Factual and Procedural History Underlying Prior Appeal No. F043726
On January 21, 2003, the Stanislaus County Superior Court filed an information in superior court charging appellant Kim Lobou Gamble as follows: count I—second degree burglary (Pen. Code, § 459) and count II—petty theft with a prior (§ 666). The district attorney specially alleged appellant had sustained three prior serious felony convictions (§ 667, subd. (d)) and three prior prison terms (§ 667.5, subd. (b)).
On February 27, 2003, the court denied appellants motion to set aside count I of the information (Pen. Code, § 995).
On March 10, 2003, the first day of jury trial, the trial court granted the district attorneys motion to amend count I to allege a violation of a specific subdivision of Penal Code section 459. The court also bifurcated trial of the special allegations.
On March 11, 2003, the second day of jury trial, appellant withdrew his not guilty plea, pleaded guilty to both substantive counts, and admitted the truth of all of the special allegations.
On March 13, 2003, appellant submitted a written request for court appearance claiming his counsel, Deputy Public Defender Maureen Keller, was ineffective and requesting the opportunity to withdraw his guilty plea.
On March 21, 2003, the trial court appointed the Conflicts I firm of Grisez Orenstein & Hertle to confer with appellant about his motion.
On April 11, 2003, Thomas Ebersole, an attorney with the firm, appeared in open court, said he had met with appellant, and advised the trial court "weve determined that there is no legal grounds for him to withdraw his plea." The court relieved Conflicts I and Ebersole from further representation and Deputy Public Defender Keller advised the court that appellant wanted a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On April 17, 2003, the court conducted an in camera hearing, initially denied appellants Marsden motion, and then granted the motion after a further exchange with appellant and Deputy Public Defender Keller. The court then appointed the Conflicts II firm of Perry & Associates to represent appellant.
On May 7, 2003, appellants new counsel filed an invitation to the trial court to exercise its discretion to strike prior convictions (Pen. Code, § 1385). On July 8, 2003, the prosecution filed written opposition to appellants pleading.
On July 11, 2003, the court declined appellants invitation to exercise its discretion to strike prior convictions.
On the same date, the court agreed to refer the matter again to the Conflicts I firm to determine the potential merits of a motion to withdraw appellants plea.
On July 17, 2003, Conflicts I firm reported there was no basis for appellant to move to withdraw his plea.
On the same date, the court relieved Conflicts I firm, reappointed Conflicts II firm to represent appellant, denied appellant probation and sentenced him to a total term of 28 years to life in state prison. The court imposed the term of 25 years to life on count I and a consecutive term of three years for the related prior prison term. The court imposed similar terms on count II but stayed execution of those terms under Penal Code section 654. The court imposed a $1,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 384 days of custody credits.
On August 19, 2003, appellant filed a timely notice of appeal.
On August 11, 2004, this court filed a nonpublished opinion stating in relevant part:
"The judgment is set aside for the limited purposes of allowing Gamble, first, a hearing on his Marsden motion and, second, a hearing on his motion to withdraw his guilty plea. On the latter motion, he has the right to have counsel represent him. After adjudicating both motions, the court has the option to proceed in accordance with law if the court grants the latter motion or to reenter the judgment if Gamble abandons, or if the court denies, the latter motion." (People v. Gamble (Aug. 11, 2004, F043726).)
Procedural History Underlying the Instant Appeal
On October 19, 2004, the superior court filed a minute order acknowledging receipt of the remittitur in case No. F043726 and setting the matter for further hearing on November 12, 2004.
On December 16, 2004, the court conducted a hearing under Marsden, supra, 2 Cal.3d 118 and denied appellants motion to substitute counsel. The court nevertheless allowed a Conflicts I firm, a conflict criminal defense firm, to represent appellant with respect to a possible motion to withdraw his plea.
On February 4, 2005, appellant filed a motion to withdraw his plea alleging ineffective assistance of trial counsel.
On February 25, 2005, the district attorney filed written opposition to the motion to withdraw plea.
On March 24 and May 26, 2005, the court conducted a contested hearing on the motion to withdraw plea.
On June 28, 2005, the court filed a minute order denying appellants motion to withdraw plea and reinstating the judgment of July 17, 2003.
On July 15, 2005, appellant filed a notice of appeal.
On August 25, 2005, this court granted appellants application for permission to file an amended notice of appeal.
On September 12, 2005, appellant filed an amended notice of appeal and certificate of probable cause.
On December 6, 2005, this court filed an order determining the notice of appeal to be timely.
On July 12, 2006, this court granted appellants application to take judicial notice of the record in his prior appeal, No. F043726.
STATEMENT OF FACTS
The following facts are taken in pertinent part from the report of the probation officer filed April 4, 2003:
"On October 14, 2002, at approximately 7:40 p.m., an officer from the Modesto Police Department responded to the Factory 2-U store located at 452 Paradise Road in Modesto, California, regarding a petty theft. Store employee, Sarey Ry, reported she had been working when she observed a black male, later identified as the defendant, enter the business through the exit doors. She noted a video camera records everyone entering the store through the entrance, however there is no video camera recording the exit doors. The defendant walked to the mens clothing section and began selecting pants, shirts and jackets from the most expensive racks.... He then grabbed all of the items and walked out of the store without paying. The employee followed the defendant out of the store and asked him if he was going to pay for the items, at which time, the defendant entered a grayish-brown Plymouth Voyager van, license number 2MPC314, which was driven away on Paradise Road by a black female. The estimated value of the property taken from the store was over $400. [¶]...[¶]
"On October 15, 2002, at approximately 2:40 a.m., the officer was dispatched to 1019 Colorado Avenue in Modesto, California, regarding a subject banging on the door trying to get in. The residents at the Colorado Avenue address reported Kim Lobou Gamble had been trying to get into the residence. He had been yelling at the residents to let him in, claiming he had `hot clothes that he would have to throw out if they did not let him in.
"On October 22, 2002, Sarey Ry positively identified the defendant through a photo lineup as the person responsible for taking the clothing from Factory 2-U. On November 4, 2002, the defendant was arrested at the Stanislaus County Jail, where he was in custody in another case."
DISCUSSION
Appellants sole issue on appeal is whether his sentence of 28 years to life in state prison constitutes cruel and unusual punishment. Appellant contends:
We initially note the parties devote substantial portions of their briefs to a discussion of (a) whether the instant issue has been preserved on appeal and (b) whether defense counsel was ineffective by failing to timely object to the sentence on the grounds of cruel and unusual punishment.
"[A]ppellant requests this court to find appellants twenty-five years to life sentence cruel and unusual punishment. It is beyond dispute that this sentence is grossly disproportionate to his current minor offense even in light of his criminal history. Neither appellants current offenses nor his strike offenses and other prior history can justify a recidivist penalty with a mandatory term that is over eight times as long as the maximum three year term that would otherwise be imposed for violating either section 459, second degree, or 666.
"The sentence exceeds the limits of civilized standards. It is gratuitously extreme. It is cruel and/or unusual punishment under both the state and federal constitutions and must not be allowed to stand."
On July 17, 2003, the trial court sentenced appellant, stating in pertinent part:
"The Court as to Count I, 459 of the Penal Code, sentences the defendant to the indeterminate term of 25 years to life.
"Pursuant to Penal Code Section 667.5(b), the Court adds an additional three years, one year each for each of the prior convictions, for a total term of life, the minimum term of which is 28 years.
"As to Count II, pursuant to Penal Code Section 654, the Court imposes the same term as to Count I, 25 years to life, plus three years for the 667.5(b) priors. However, pursuant to Penal Code Section 654, execution of that term is stayed pending the defendants completion of parole, said stay to become permanent upon the defendants completion of parole."
The California Constitution forbids "`cruel or unusual punishment," whereas the federal Constitution precludes "`cruel and unusual" punishment. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, fn. 5.) Thus, if we find appellants punishment does not violate Californias Constitution, it cannot violate the Eighth Amendment. Under the California Constitution, the issue balances on whether the sentence "`is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Citation.]" (People v. Gray (1998) 66 Cal.App.4th 973, 992.) The case of In re Lynch (1972) 8 Cal.3d 410 identified three techniques for courts to make this finding. "`First, they examined the nature of the offense and the offender. [Citation.] Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. [Citation.] Third, they compared the punishment to the penalty for the same offense in different jurisdictions. [Citations.]" (People v. Gray, supra, 66 Cal.App.4th at p. 992.) A punishment may be cruel and unusual 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." (In re Lynch, supra, 8 Cal.3d at p. 424; People v. Dillon (1983) 34 Cal.3d 441, 478.) Especially relevant to this determination is an examination of "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, 8 Cal.3d at p. 425.) In assessing the nature of the offense, a court should consider the circumstance of the particular offense such as the defendants motive, the way the crime was committed, the extent of the defendants involvement and the consequences of the defendants acts. (People v. Dillon, supra, 34 Cal.3d at p. 479.) In analyzing the nature of the offender, a court should consider the defendants "age, prior criminality, personal characteristics, and state of mind." (Ibid.)
"Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]" (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) We give great deference to the Legislatures power to set the punishment for a particular crime and to make judgments among various penological approaches. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213-1214; People v. Martinez, supra, 76 Cal.App.4th at p. 494.) Moreover, it is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality and necessitates an examination of the second and third criteria. (People v. Meeks (2004) 123 Cal.App.4th 695, 707.)
Under California law, it is well established that cruel and unusual arguments must first be presented to the trial court because they require fact-specific determinations about the offense and the offender. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Appellant did not argue in the superior court that imposition of a 28-year-to-life sentence would constitute cruel and/or unusual punishment. Therefore, he has waived the right to raise this issue on appeal. While some courts have chosen to resolve the issue despite waiver, we decline to expend judicial resources in this manner.
Nonetheless, we mention that here, just as in People v. Kelley, supra, 52 Cal.App.4th 568, appellant would not have prevailed even if he had preserved the issue. In Lockyer v. Andrade (2003) 538 U.S. 63, the United States Supreme Court held that a California Courts imposition of two consecutive 25 years to life sentences was neither contrary to nor an unreasonable application of federal law. (Id. at pp. 66, 77.) In Ewing v. California (2003) 538 U.S. 11, the Supreme Court held the Eighth Amendment did not prohibit the State of California from sentencing a repeat felon to a prison term of 25 years to life under the states "`Three Strikes and Youre Out" law. (Id. at p. 14.) A plurality of the Supreme Court specifically held:
This conclusion obviates the need for a discussion of appellants contention that trial counsel was ineffective at sentencing by failing to assert a claim of cruel and/or unusual punishment. To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. (People v. Hart (1999) 20 Cal.4th 546, 623-624.) Generally speaking, where—as here—the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for writ of habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 426.)
"... To be sure, Ewings sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California `was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State. [Citation.] Ewings is not `the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. [Citation.]
"We hold that Ewings sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendments prohibition on cruel and unusual punishments...." (Ewing v. California, supra, 538 U.S. at pp. 30-31.)
In the instant case, the nature of the offense and the offender warranted the prison sentence imposed by the trial court. As to the offense, appellant entered the Factory 2-U store exit door, went directly to the rack of the most expensive mens apparel, and grabbed numerous items. When a store employee confronted appellant about the need for payment, appellant simply left the store, placed the attire in a waiting van, and departed on Paradise Road. Appellant never displayed regret for his criminal conduct or suggested the items were taken to ensure sustenance for himself or others. His blatant conduct clearly posed a serious risk to society.
As to the offender, respondent properly points out that appellant has an extensive criminal history dating back more than two decades. The probation officer summarized his numerous offenses in the following manner:
"March 21, 1980, Alameda County Superior Court (#163818), 459 PC, a felony, 2 years probation, 180 days jail.
"October 22, 1980, Alameda County Superior Court (#172575), 487 PC, a felony, 3 years probation, 6 months jail.
"July 13, 1981, Alameda County Superior Court (#72371), 245(a) PC, a felony, 4 years California Department of Corrections. October 19, 1982 paroled from CDC.
"July 1, 1983, Alameda County Superior Court (#76367), 459 PC, first degree, a felony, 6 years CDC. May 26, 1986, paroled from CDC. March 10, 1988, violation of parole, return to CDC. July 26, 1988, violation of parole, return to CDC. May 23, 1989, violation of parole, return to CDC.
"January 20, 1989, Alameda County Superior Court (#313885), 10852 VC, a misdemeanor, 2 years probation, 90 days jail.
"May 15, 1989, Sacramento County Superior Court (#89M07303), 594(b)(3) PC, a misdemeanor, 3 years probation, 10 days jail.
"March 7, 1990, Alameda County Superior Court (#100982), 211 PC, a felony, 12 years CDC. March 6, 1998, violation of parole, return to CDC. October 1, 1998, violation of parole, return to CDC. August 5, 1999, violation of parole, return to CDC. January 21, 2000, violation of parole, return to CDC. Discharged from parole July 6, 2001.
"December 31, 2001, Alameda County Superior Court (#472649), 243(E)(1) PC, a misdemeanor, 5 years court probation, 90 days jail.
"October 24, 2002, Stanislaus County Superior Court (#1048254) 243(b) PC, a misdemeanor, 3 years probation, 60 days jail."
Appellant acknowledges this rather extensive record but points out the strike offenses occurred in 1981, 1983, and 1990, the most recent being 12 years prior to the commission of the substantive offense charged in the instant case. He also contends the focus of the inquiry on appeal must be on the seriousness of the current offense because it is that offense which must bear the weight of the recidivist penalty. He goes on to argue that he was convicted of two "wobbler" offenses — second degree burglary and petty theft with a prior (Pen. Code, §§ 459, 666). He maintains the trial court could reduce such offenses either by imposing a misdemeanor sentence or by declaring the offenses misdemeanors upon a grant of probation.
The United States Supreme Court essentially rejected these types of arguments in Ewing v. California, supra, 538 U.S. at pages 28-29. As to the gravity of the offenses, appellant was not merely charged with burglary and petty theft with a prior in the instant case. Rather, he was charged with such offenses after having sustained prior serious felony convictions under Penal Code section 667, subdivision (d). As to the status of the offenses as "wobblers," the Supreme Court observed with respect to the grand theft charged in Ewing v. California, supra, 538 U.S. at pages 28-29:
"That grand theft is a `wobbler under California law is of no moment. Though California courts have discretion to reduce a felony grand theft charge to a misdemeanor, it remains a felony for all purposes `unless and until the trial court imposes a misdemeanor sentence. [Citations.] `The purpose of the trial judges sentencing discretion to downgrade certain felonies is to `impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon. [Citations.] Under California law, the reduction is not based on the notion that a `wobbler is `conceptually a misdemeanor. [Citation.] Rather, it is `intended to extend misdemeanant treatment to a potential felon. [Citation.] In Ewings case, however, the trial judge justifiably exercised her discretion not to extend such lenient treatment given Ewings long criminal history.
"In weighing the gravity of Ewings offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislatures choice of sanctions...."
The 28-year-to-life prison term is not disproportionate to the offense or the offender and does not offend fundamental notions of human dignity. Rather, it is appellants conduct that "offends fundamental notions of human dignity." (In re Lynch, supra, 8 Cal.3d at p. 424.) "Fundamental notions of human dignity are not offended by the prospect of exiling from society those individuals who have proved themselves to be threats to the public safety and security." (People v. Ingram (1995) 40 Cal.App.4th 1397, 1416, disapproved on another point in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8.) Appellants sentence is not shocking or inhumane in light of the nature of the offense and offender and reversal of the judgment of sentence is not required.
DISPOSITION
The judgment is affirmed.