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People v. Gladden

California Court of Appeals, Fourth District, Second Division
Apr 14, 2009
No. E045071 (Cal. Ct. App. Apr. 14, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, No. RIF119558. Michele D. Levine, Judge.

Ellen M. Matsumoto, 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, and Gil Gonzalez, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

MILLER J.

A jury convicted defendant Giovanni Tirey Gladden of driving under the influence resulting in injury (count 1—Veh. Code, § 23153, subd. (a)), driving under the influence with a blood alcohol level of 0.08 percent or more resulting in injury (count 2—Veh. Code, § 23153, subd. (b)), and hit and run with injury (count 3—Veh. Code, § 20001, subd. (a)). The jury additionally found true allegations that defendant had a blood alcohol concentration of 0.20 percent or more (Veh. Code, § 23578) and proximately caused injury to an additional victim in his commission of the count 1 and 2 offenses (Veh. Code, § 23558). Finally, the jury found true allegations that defendant had suffered two prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)(2)(A)) and two prior prison terms (Pen. Code, § 667.5, subd. (b)). After denying defendant’s Romero motion, the court sentenced defendant to an aggregate term of 25 years to life consisting of the following: 25 years to life on count 1; 180-day jail term, concurrent, on the Vehicle Code section 23558 enhancement to count 1; no additional time on the Vehicle Code section 23578 enhancement to count 1; 25 years to life, concurrent, on count 2; 180-day jail term, stayed, on the Vehicle Code section 23558 enhancement to count 2; no additional time on the Vehicle Code section 23578 enhancement to count 2; one year, concurrent, on count 3; and one year, concurrent, on each of the prior prison term findings.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

On appeal, defendant contends that the court abused its discretion in refusing to strike one of defendant’s prior strike convictions, that his sentence is violative of both the federal and California constitutional prohibitions against cruel and/or unusual punishment, and that the court should have stayed punishment on the count 2 offense pursuant to the dictates of Penal Code section 654. The People concede defendant’s contention regarding the Penal Code section 654 issue and we agree; therefore, we shall direct that the sentence on count 2 be stayed. The People further contend that the trial court erred in imposing unauthorized sentences on the prior prison terms and additional victim enhancements. We agree and, therefore, order the matter remanded for resentencing on those enhancements. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL HISTORY

Defendant’s friend, Shannon Ross, witnessed him drink what appeared to be a glass of wine while the two were visiting at defendant’s friend’s home. Defendant then drove Ross and two other individuals away from the residence. Defendant failed to stop at an intersection with a stop sign. As he accelerated through that intersection, his vehicle collided with another car. The driver of the other vehicle suffered whiplash, abrasions, and pain to her buttocks. Her son, who was also in the car, sustained a scratch near his left eye.

Officers arrived on the scene almost immediately thereafter. A witness pointed defendant out as he was walking away. An officer yelled at defendant to stop; at which point defendant began running away. The officers apprehended defendant.

Defendant smelled of alcohol, had red watery eyes, and slurred speech. Defendant informed one of the officers that he had been drinking. Approximately, one and one-half hours after the accident, defendant’s blood was drawn. An analysis of defendant’s blood resulted in a determination that it contained 0.21 percent alcohol.

DISCUSSION

A. Romero Motion

Defendant contends that the court erred in denying his motion to strike one of his strike priors. He maintains a 25-years-to-life sentence is too severe for a drunk driving conviction and that his lifelong alcohol dependency and willingness to enter treatment mitigates against such a sentence. We disagree.

“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. (Id. at p. 376.) In the absence of such a showing, the trial court is presumed to have acted correctly. (Id. at pp. 376-377.) The appellate court may not substitute its judgment for that of the trial court when determining whether the court’s decision to strike the prior was proper. (Id. at p. 377.) “‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (Ibid.) “‘[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ [citation].” (Id. at p. 378.)

Here, the court noted the proper criteria to consider prior to ruling on defendant’s motion: “The Court is to consider the constitutional rights of the defendant, yourself, the right to due process, equal protection under the law, freedom from cruel and unusual punishment, but also the interests of society and the nature and circumstances of your prior strikes, the priors; and in looking at those, the remoteness in time, and other factors as well, the length of time between the strike priors and the current crime, the conduct as well, and the circumstances of those crimes, whether they involve violence or the use of weapons, whether it was a single period of aberrant behavior, or whether it was multiple periods of time.” Thereafter, the court reviewed the circumstances as applicable to defendant. The court noted that driving under the influence can equate to a crime involving the use of a weapon. It analogized the facts of the present case to one where an individual haphazardly fires a gun and only propitiously hits a tree rather than a person. Thus, the court noted the extreme danger defendant’s acts posed to innocent bystanders. As recognized by the trial court, this is not simply a case in which defendant drove under the influence; rather, it is one in which defendant drove recklessly under severe alcohol impairment, was involved in a collision resulting in injuries to innocent individuals, and ran from the scene, even attempting to elude law enforcement officers in the process.

The court appropriately reviewed the particulars of defendant’s background, character, and prospects. The court noted defendant’s criminal record: defendant garnered a juvenile conviction in 1984 for assault with a firearm; a second degree robbery conviction in 1989, another second degree robbery conviction in 1992; three prior misdemeanor convictions for driving under the influence in 1995, 1997, and 2002; and had pending charges in another matter for driving under the influence and graffiti. Moreover, the court noted that defendant had incurred numerous probation and parole violations.

The court recognized that defendant had formerly been enrolled in a program directed at intoxicated drivers; however, that program was a condition of defendant’s previously imposed probation, rather than a voluntary program. Likewise, the program seemed to have made little impression. The court believed that defendant’s stated intention to change, although heartfelt, was fleeting. Indeed, the court stated that it was not a question of whether defendant would injure another victim again, but when. While a defendant’s willingness to attend counseling for addiction is one among numerous factors a trial court may consider when determining whether to strike a prior strike conviction (People v. Banks (1997) 59 Cal.App.4th 20, 24), it may lose its mitigating distinction when a defendant consistently fails to make any serious efforts at rehabilitation. (People v. Williams (1998) 17 Cal.4th 148, 155, 163; see also People v. Gaston (1999) 74 Cal.App.4th 310, 322.) This was defendant’s fourth conviction for driving under the influence. Defendant stood charged for yet another offense of driving under the influence at the time he was sentenced. His first such offense went back to 1995. Yet, defendant failed to show he had seriously undertaken any ameliorative program for his alcohol dependency. Thus, defendant’s alcohol problem lost much of its weight as a mitigating factor.

In conclusion, the court stated, “in weighing all of the factors that I must look at, as I’ve articulated, your criminal record, your history, and criminality, the parole and probation violations, the new offenses, your background, and... the seriousness of this offense, this Court is not going to find and cannot find that you fall outside the parameters of the three strikes sentencing, and because of that, I will not be exercising my discretion to strike either one of the prior convictions....” Defendant’s age, employment, and college credit were simply factors that the court obviously determined were not outweighed by defendant’s criminal history and the severity of the instant offenses. The court’s ruling was well within its discretion.

B. Cruel and/or Unusual Punishment

Defendant contends his 25-years-to-life sentence is disproportionate to his current offense and personal history and, as such, constitutes cruel and/or unusual punishment under the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) The People initially respond that defendant forfeited the issue by failing to raise it below. However, we note that defendant did raise, in his Romero motion, cruel and/or unusual punishment as a basis upon which the court could strike a prior conviction. The court likewise, as noted above, recognized the propriety of considering whether the proposed sentence violated cruel and/or unusual punishment proscriptions prior to providing its rationale for denying defendant’s Romero motion. Thus, while defendant did not raise the issue at the hearing on his motion, we believe the issue was sufficiently preserved to be raised here. Nevertheless, we find defendant’s argument unavailing.

“‘“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 (Lucero).) “If the penalty imposed is ‘grossly disproportionate to the defendant’s individual culpability’ [citation], so that the punishment ‘“‘shocks the conscience and offends fundamental notions of human dignity’”’ [citation], [we] must invalidate the sentence as unconstitutional.” (Id. at pp. 739-740.) “A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual.” (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)

When reviewing a claim of disproportionality or cruel or unusual punishment under the state Constitution, we examine the nature of the offense and offender, compare the punishment with the penalty for more serious crimes in the same jurisdiction, and measure the punishment to the penalty for the same offense in different jurisdictions. (People v. Dennis (1998) 17 Cal.4th 468, 511; In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch).) Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commission of the current offenses, including the defendant’s motive, the manner of commission of the crimes, the extent of the defendant’s involvement, the consequences of his acts, and his individual culpability, including factors such as the defendant’s age, prior criminality, personal characteristics, and state of mind. (Lucero, supra, 23 Cal.4th at p. 739; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)

Defendant argues his current offenses were not violent or motivated by a desire for pecuniary gain. He notes his prior strike convictions did not involve the use of a weapon. Nonetheless, as observed by the trial court, defendant stood convicted for offenses which had the potential to inflict serious injury. It was a mere fortuity that more serious injuries did not result from defendant’s acts. Moreover, defendant entirely ignores his criminal history. It is significant that defendant’s 25-years-to-life sentence was largely based on his recidivism. Defendant received the 25-years-to-life term for convictions under the “Three Strikes” law based on his prior strike convictions. (Pen. Code, § 667, subds. (b)-(i).) “[A] defendant’s history of recidivism, which is part of the nature of the offense and the offender, justifies harsh punishment.” (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) “Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)

As noted above, defendant’s criminal history is extensive and continuing. While his prior criminality and the current offenses do not indicate he has a propensity for extreme, intentional violence, the circumstances of the current incident do not exactly resonate with a claim that his crimes have been victimless. Defendant injured two individuals in his commission of the current offense. However, by driving under the influence, he exposed countless individuals to serious injury. It bears repeating, this was defendant’s fourth conviction for driving under the influence and he stood charged for a fifth. Thus, defendant repeatedly exposed innocent individuals to serious injury by his flagrant disavowal of society’s dictates. His recurrent criminality indicated he had failed to learn from his numerous past experiences with the law. Thus, his 25-years-to-life sentence is not disproportionate to his personal responsibility. Nor does the sentence shock the conscience or offend fundamental notions of human dignity. (Lucero, supra, 23 Cal.4th at p. 740.)

The second prong of the Lynch analysis “involves a comparison of the ‘challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction.’ [Citation.]” (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) Defendant’s comparison of the terms of imprisonment for first and second degree murder convictions with his own period of incarceration is inapt as the former periods of incarceration do not evaluate the hypothetical defendants’ prior criminality. Again, as discussed above, defendant had a substantial criminal history which legitimized the degree of imprisonment imposed in the instant case. Defendant has not met his burden of proof on the second prong. (Ibid [second prong inapposite to three strikes sentencing].)

The third prong of Lynch calls for comparison of the California punishment with punishment for the same crimes in other states. (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) Defendant has not met his burden of proof on this prong either. (Ibid [third prong not satisfied merely because California’s sentencing scheme is harsher than others].) Defendant has failed to provide this court with comparative, recidivist sentences from other states. Regardless, defendant’s sentence is not disproportionate to his culpability. (See Lockyer v. Andrade (2003) 538 U.S. 63, 73-74 [two consecutive terms of 25 years to life for third strike conviction involving two thefts of videotapes not cruel and unusual punishment]; Ewing v. California (2003) 538 U.S. 11, 21 [25-years-to-life sentence for theft of three golf clubs for habitual criminal not violative of the 8th Amendment].) Defendant’s case is far less sympathetic than the latter two cited cases.

C. Penal Code Section 654

Defendant contends that his acts in both the count 1 and 2 offenses were part of the same course of conduct such that the sentence imposed on the count 2 offense should be stayed pursuant to the dictates of Penal Code section 654. The People concede the issue. We agree and, therefore, direct that the sentence imposed on count 2 be stayed.

Penal Code Section 654 prohibits multiple punishment for multiple convictions if the offenses were the product of a single act, intent, or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) “If, for example, a defendant suffers two convictions, punishment for one of which is precluded by [Penal Code] section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed.” (Ibid.)

Here, the trial court specifically found that the acts underlying defendant’s convictions in counts 1 and 2 derived from “the same operative facts and circumstances.” Indeed, the court explicitly noted Penal Code section 654’s applicability when imposing sentence on the enhancements to count 2. Nevertheless, while the court imposed the sentence of 25 years to life concurrent on the count 2 offense and 180 days concurrent on the attached Vehicle Code section 23558 enhancement, it failed to stay that punishment. Thus, we shall order the sentence modified to stay punishment on the count 2 offense pending finality of judgment.

D. Unauthorized Sentence

The People contend that the court rendered an unauthorized sentence when it imposed concurrent sentences on the prior prison term enhancements; imposed a concurrent 180-day jail term on the additional victim enhancement attached to count 1; and imposed a 180-day jail term, stayed, on the additional victim enhancement attached to count 2. Hence, the People maintain the matter must be remanded for imposition of an authorized sentence in exercise of the trial court’s discretion. Defendant replies that, while the trial court’s sentence was unauthorized, it is unnecessary to remand the matter because it is clear from the record that the trial court did not intend to impose any additional time. Thus, defendant argues we may strike imposition of sentence on both the prior prison terms and multiple victim enhancements. While we agree with defendant that it is apparent the trial court did not wish to impose any additional time on the enhancements, for clarity of the record and in abundance of caution, we will remand the matter for resentencing on the enhancements.

The mandated additional one-year term of incarceration dictated by Penal Code section 667.5, subdivision (b), must either be imposed consecutively to any other prison term or stricken. (People v. Savedra (1993) 15 Cal.App.4th 738, 747; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) An enhancement may be imposed or stricken, but may not be stayed unless the statute provides otherwise. (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) Vehicle Code section 23558 provides that “[a] person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of [Vehicle Code s]ection 23153... shall, upon a felony conviction,... receive an enhancement of one year in the state prison for each additional injured victim.... [¶] Notwithstanding any other provision of law, the court may strike the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.” (Italics added.)

Here, it appears that the court intended defendant’s maximum sentence to be that which it imposed, 25 years to life. In ordering both of the prior prison terms imposed concurrently, the court noted that it was “doing so because the time imposed does fit the crime, and based upon that, finds that additional time is not necessary based upon the prior convictions which give rise to the three strikes under which the Court has already sentenced [defendant].” Likewise, that rationale would appear to carry over to the multiple victim enhancements. Though the court did not specifically note that the overall sentence was appropriate when it imposed sentence on the multiple victim enhancements, it did impose sentence on the count 1 enhancement concurrently. Similarly, it imposed the 180-day jail term on the count 2 enhancement, but stayed that sentence pursuant to Penal Code section 654. Nevertheless, nothing indicates where the court derived its authority to impose a 180-day jail term rather than the mandated one-year term. Moreover, the abstract of judgment reflects neither sentence imposed for the multiple victim enhancements. Thus, in order to maintain the integrity of the record, we remand the matter for resentencing on the prior prison term and multiple victim enhancements.

DISPOSITION

Defendant’s sentence is modified so that the sentence imposed for count 2 is stayed pending the finality of the judgment and service of the sentence imposed for count 1, the stay then to become permanent. The trial court is directed to modify the abstract of judgment to reflect that imposition of punishment on count 2 has been stayed. Furthermore, the matter is remanded to the trial court with directions to (1) either impose a consecutive one-year term on each of the prior prison terms or strike them, and (2) either impose a one-year term or strike the multiple victim enhancements. The trial court is further directed to deliver a certified copy of the revised abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: HOLLENHORST Acting P. J., McKINSTER J.


Summaries of

People v. Gladden

California Court of Appeals, Fourth District, Second Division
Apr 14, 2009
No. E045071 (Cal. Ct. App. Apr. 14, 2009)
Case details for

People v. Gladden

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GIOVANNI TIREY GLADDEN, Defendant…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 14, 2009

Citations

No. E045071 (Cal. Ct. App. Apr. 14, 2009)

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