Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 1091001 of Stanislaus County. Scott T. Steffen, Judge.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
Appellant Jeremy David Gordon was charged with robbery, assault by means of force likely to produce great bodily injury, and resisting arrest. It was further alleged that Gordon personally used a dirk or dagger during the commission of the offense, and that he had suffered two prior serious-felony convictions and had served three prior prison terms. The assault charge and the personal-use enhancement were dismissed. The case then went to trial and the jury found Gordon not guilty of robbery, but guilty of the lesser-included offense of grand theft from a person (Pen. Code, § 487, subd. (c)) and of resisting arrest (§ 148). The jury also found true the two prior strike allegations. In a bifurcated proceeding, Gordon admitted two of the three prior prison terms, and the court found the third prison-term allegation not true.
All prior references are to the Penal Code, unless otherwise noted.
After denying Gordon’s motion to strike at least one of his prior strike convictions, the trial court sentenced Gordon to a “Three Strikes” term of 25 years to life on the grand theft count, plus two years for the prior prison terms. Gordon was sentenced to a concurrent term of six months for the resisting arrest count.
Factual summary
On April 22, 2005, at approximately 2:00 am., Philip Gilyanna was standing near his house talking to Jose Serrano on a cell phone. Gordon and two others, Shawn Morehead and John Wilson, were standing approximately 30 to 40 feet away. Gordon started to walk toward Gilyanna and asked to use the cell phone. Gilyanna told Gordon he could use the phone when Gilyanna finished his call. Gordon said he needed to use the phone “right now.” Gilyanna was uncomfortable, frightened, and believed Gordon was armed. He saw him pull something out of his pocket, which could have been a knife. Serrano said he heard a man come up to Gilyanna and what sounded like a struggle. The call ended. Serrano testified he heard panic in Gilyanna’s voice. Serrano called the police when he was unable to re-contact Gilyanna.
Gilyanna testified that Gordon said he would use what appeared to be a knife if Gilyanna did not give up the phone. The jury, however, in finding Gordon not guilty of the robbery charge, obviously rejected this testimony.
Gilyanna gave the phone to Gordon. According to Gilyanna, Gordon then took off with the phone. According to Gordon, Gordon attempted to make the call to his friend, but she did not answer. Gordon then said he needed to use the phone again. Gilyanna said he wanted to go inside and said, “[g]ive me the phone back.” Instead of returning the phone, Gordon gave Gilyanna a $10 bill and took off with the phone. Gilyanna went inside and called police. Later, he called his cell phone. Gordon answered and told Gilyanna that the phone would be returned if Gilyanna did not call the police.
The responding police officers ultimately found Morehouse and Wilson in the park. When Gordon saw the police cars he panicked, threw the cell phone, and took off and hid under some bushes. It was there officers found Gordon. Gilyanna made a field identification and Gordon was arrested. The cell phone was never recovered.
About one to two months after the incident, Gordon arranged to have Jennifer Elam contact Gilyanna. Elam and a man named Brian offered Gilyanna another cell phone, money, or girls for sex. Gordon continued to communicate with Elam while incarcerated trying to get Elam to convince Gilyanna not to pursue the case and to convince Morehouse and Wilson not to appear at trial.
Discussion
I. Sufficiency of the evidence
Gordon claims there is insufficient evidence to sustain his conviction of resisting arrest. According to Gordon, his failure to respond immediately when he was told to leave the bushes cannot alone support a conviction for resisting arrest. We conclude there is evidence in the record to establish that Gordon did more than fail to respond immediately to a lawful police command and that there is sufficient evidence to sustain the conviction.
When there is a challenge to the sufficiency of the evidence, we must conclude, in accordance with the rules of appellate review, that no rational jury could have concluded as it did. We evaluate the evidence in the light most favorable to the respondent and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (People v. Millwee (1998) 18 Cal.4th 96, 132.)
In order to prove a violation of section 148, the prosecution must prove “(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.” (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.) The offense is a general-intent crime; there is no requirement that the defendant acted with a particular intent other than the intent to act. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329-1330.)
Gordon relies on People v. Quiroga (1993) 16 Cal.App.4th 961, 966, which held that the failure of a defendant “to respond with alacrity to police orders” is not itself a violation of section 148. In Quiroga, the defendant challenged the officers and failed to sit down immediately on a couch or remove his hands from his pockets after police officers entered a home without a warrant. The court noted that the defendant had a First Amendment right to dispute the officer’s actions and concluded that the brief time in which the defendant failed to comply with the orders was not a violation of section 148. (But see In re Muhammed C., supra, 95 Cal.App.4th at pp. 1329-1330 [failure to comply with lawful detention order is sufficient alone to violate § 148].) In any event, this case is distinguishable.
Not only did the interaction between the officers and Gordon in this case occur in a public place, not a private home, but Gordon’s acts go beyond a mere delay in following lawful police orders. Gordon knew the police were looking for him. When he saw police cars, Gordon ran and hid in order to avoid a lawful detention and investigation. Gordon argues that there is no evidence that he ran from police. Yet, Gordon himself testified that he ran when he saw the police cars and was “hiding” in the bushes because he panicked. Morehouse confirmed that Gordon ran when he saw the police. We have held that, when an officer has the legal right and duty to detain a suspect, the suspect, if aware of the officer’s desire, must permit himself to be detained. (People v. Allen (1980) 109 Cal.App.3d981, 985-986.) Even the court in People v. Quiroga, supra, 16 Cal.App.4th at page 967 recognized that section 148 has been applied to fleeing from a proper investigatory detention by a police officer.
Once police discovered Gordon’s hiding place, Gordon was ordered to come out with his hands up. Weapons were drawn. We can judicially notice the obvious truth that when an officer draws his weapon, emotions are tense and the situation becomes dangerous for all involved in the confrontation until resolved. (Evid. Code, § 451, subd. (f).) Instead of complying with what was an unequivocal command for Gordon to come out, Gordon chose to heighten the confrontation by ignoring the command and being non responsive. Officer Jones testified that the time between the first command to come out of the bushes and the time it took Gordon to come out was one minute. One minute is a long time for an officer to stand with a weapon drawn in an emotionally charged situation without any response or compliance from the suspect. Jones was forced to make several repeated commands that Gordon come out of his hiding place. Given the circumstances, one minute was not a reasonable time and it delayed the officer in the performance of his duty. We conclude there is sufficient evidence to sustain a conviction under section 148. Gordon’s acts, flight, concealment, and failure to obey the officer’s commands that he come out within a reasonable time violated the prohibitions of the statute.
II. Romero motion
Gordon asked that the trial court either strike one of the prior serious-felony convictions or reduce Gordon’s grand theft conviction to a misdemeanor for sentencing. Gordon contends the trial court abused its discretion when it refused to strike at least one of his prior strike convictions.
A trial court may exercise its discretion under section 1385 to strike a prior felony when it deems it in the furtherance of justice to do so. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) Review of a trial court’s decision whether or not to strike a prior under section 1385, like most other discretionary trial court rulings, is limited in scope and is deferential. (People v. Carmony (2004) 33 Cal.4th 367, 374; People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Appellate courts will disturb the trial court’s exercise of discretion only upon a clear showing of abuse that results in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
Here, the record establishes that the trial court was well aware of its discretionary power under section 1385 and Romero, and acted to achieve legitimate sentencing objectives after a thoughtful and conscientious assessment of all relevant factors, including individualized factors pertaining to Gordon. (See People v. Williams (1998) 17 Cal.4th 148, 161-164; see also Romero, supra, 13 Cal.4th at p. 530.) The trial court noted that the two prior burglary strikes were a decade prior but that this was not “exceedingly remote in time.” (One occurred in October 1997 and the other in February 1998.) The court spent considerable time thinking about this case. It recognized the risk of applying the Three Strikes law in situations where individuals should be given another chance to reform. It commented that this case was “at the shorter end of prior criminality but still … this is within the bounds of what the legislature had prescribed for us in the Three Strikes Law,” in other words, recognizing the intent of the Three Strikes law to punish recidivist defendants. It determined “on balance” that striking one of the strikes was not the “appropriate” thing to do in this case. The court observed that Gordon had not done well on parole (suffering five parole violations, the last in 2004), and that he had several felony convictions in addition to the prior strike convictions, one in 1998 (§ 529, subd. (3), false impersonation of another creating potential liability or prosecution of person impersonated) and one in 2001 (§ 496, receiving stolen property). Gordon also has several convictions prior to the 1997 and 1998 burglaries.
Gordon’s current offense is not a violent or serious offense. His prior strikes occurred within a four-month time span, and no similarly serious offenses have been committed. There is no question, however, that Gordon falls within the intent and express statutory requirements of California’s Three Strikes law, as the trial court observed. He has multiple felony offenses and has shown no ability to live as a law-abiding citizen, despite his mature age.
The trial court has the discretion to find that it is in the interests of justice to strike at least one of Gordon’s prior strike convictions and to take him out of the Three Strikes sentencing framework. (People v. Carmony, supra, 33 Cal.4th at p. 376.) Gordon has not shown that the trial court acted unreasonably in refusing to strike one or more of his priors. (Id. at p. 377 [no abuse of discretion unless trial court’s decision is so irrational or arbitrary that no reasonable person could agree].)
The court was not persuaded by what might be considered a mitigating factor—the age of the priors—in the face of Gordon’s recidivism. We cannot say this was an unreasonable conclusion. We conclude the trial court did not abuse its discretion in refusing to strike at least one of Gordon’s priors.
III. Constitutional challenges to the sentence
Gordon next contends that his sentence of 27 years to life is cruel and unusual punishment in violation of both the state and federal Constitutions. “Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. [Citation.]” (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fns. omitted.)
“‘Defining crime and determining punishment are matters uniquely legislative in nature, resting within the Legislature’s sole discretion.’ [Citation.]” (People v. Lewis (1993) 21 Cal.App.4th 243, 251.) “Our Supreme Court has emphasized ‘the considerable burden a defendant must overcome in challenging a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17 [of the California Constitution], the validity of enactments will not be questioned “unless their unconstitutionality clearly, positively, and unmistakably appears.”’ [Citation.]” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)
We must determine if Gordon’s sentence is cruel or unusual based on his current offenses and criminal history, applying the familiar test of dis proportionality adopted under both the federal and state Constitutions. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136 [court has authority to intervene and find sentence unconstitutional where there is proper showing, even when sentence authorized by statute]; Solem v. Helm (1983) 463 U.S. 277, 289-290.) We review independently. (People v. Mora (1995) 39 Cal.App.4th 607, 615.)
First, the Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime, an exceedingly rare occurrence. (Ewing v. California (2003) 538 U.S. 11, 23; Lockyer v. Andrade (2003) 538 U.S. 63, 73.) In Ewing, the defendant’s sentence was 25 years to life, a sentence imposed under California’s Three Strikes law after the defendant was convicted of grand theft of golf clubs. The defendant had previously been convicted of three residential burglaries and a robbery. The court in Ewing concluded that the sentence was not grossly disproportionate to the crime committed and affirmed the sentence.
In Lockyer v. Andrade, the defendant was sentenced to a third-strike term of 50 years to life for two petty thefts with prior theft convictions. Andrade’s prior criminal record was similar to that of Gordon. Andrade had several prior residential burglaries, a string of relatively minor nonviolent offenses, and a number of unsuccessful attempts at parole. His current offenses were relatively minor, the theft of videotapes of low monetary value. They were also “wobbler” offenses, like Gordon’s offenses here. (Locker v. Andrade, supra, 583 U.S. at p. 67 [defendant’s offense was wobbler offense punishable either as misdemeanor or as felony].) If the Eighth Amendment does not prohibit sentences equivalent to life in prison in Lockyer v. Andrade and Ewing, it does not prohibit the sentence in this case.
Under the California Constitution, we consider the factors identified in In re Lynch (1972) 8 Cal.3d 410, 423-425 and People v. Dillon (1983) 34 Cal.3d 441, 477-478: (1) the nature of the offense and/or the offender; (2) the nature of the punishment compared to other punishments imposed by the same jurisdiction for more serious offenses; and (3) the nature of the punishment compared to other punishments imposed by other jurisdictions for the same offense. (Lynch, supra, at pp. 425-427.) Regarding the offense, the court must evaluate the totality of the circumstances surrounding the offense, including its motive, the way it was committed, the defendant’s involvement, and the consequences of the offense. Regarding the offender, the court must evaluate the defendant’s individual culpability, including his age, prior criminality, personal characteristics, and state of mind. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Gordon relies on People v. Carmony (2005) 127 Cal.App.4th 1066. In Carmony, the court concluded that imposing a Three Strikes 26-years-to-life prison sentence on a defendant who failed to update his sex-offense registration within five days of his birthday was “one of the rare cases where punishment was disproportionate” under the state Constitution. The offense in Carmony, however, was a nonviolent regulatory offense that posed no direct or immediate danger to society. It involved no victim. Further, there was evidence that the defendant’s failure to update his registration technically violated the law but not the spirit of the statute. (Id. at p. 1072 [purpose of sex-offender registration law is to require offender to give present address to law enforcement authorities so that he or she is readily available for police surveillance].) The defendant had registered initially a month before his birthday, his address had not changed, and his parole officer knew the current address. The state had current, accurate information on the defendant’s whereabouts at all times, which is the intent of the statute, despite the defendant’s failure to register. (Id. at pp. 1078-1082.) The court concluded, “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.) The facts in Carmony are significantly different from those here; Gordon’s past offenses, at least the two qualifying offenses, are more serious than these. His current offense is also more serious because it involves a direct confrontation with a vulnerable victim. Gordon has failed to show dis proportionality when compared to treatment of recidivist offenders in other states.
In addition, when considering the harshness of the penalty, we may consider Gordon’s recidivism. The Legislature may punish a repeat offender more severely than it punishes a first-time offender. (People v. Haller (2009) 174 Cal.App.4th 1080, 1089.) As the trial court noted, Gordon’s criminal history is extensive and has continued even after two prison terms. For this same reason, there is no disproportionate treatment in California, since all Three Strike offenders are treated similarly.
As respondent observes, at least two other states require life imprisonment without regard to the nature of the defense after the conviction of a third felony. (Wash. Rev. Code Ann., § 9.92.090; W.Va. Code, § 61-11-18.) Further, in Rummel v. Estelle (1980) 445 U.S. 263, the defendant was sentenced to life imprisonment with possibility of parole under a Texas recidivist statute. The statute applied only to three-time felons imprisoned for the two previous felonies. The defendant in Rummel was convicted of the following felonies: (1) fraudulent use of a credit card to obtain $80 worth of goods or services; (2) passing a forged check for $28.36; and (3) obtaining $120.75 by false pretenses—all theft offenses, all nonviolent, relatively minor offenses. (Id. at pp. 265-266.) The Supreme Court upheld the life sentence imposed. (Id. at p. 285.)
Although we too acknowledge that this is a closer case than one involving a criminal history of multiple violent and serious offenses, we conclude the sentence imposed is not constitutionally disproportionate to the crime committed under either the state or federal Constitution and does not amount to cruel and usual punishment given Gordon’s criminal history and the nature of the current offense.
IV. Failure to reduce offense to a misdemeanor
Gordon also claims that the trial court abused is discretion when it failed to reduce Gordon’s conviction of grand theft from a person to a misdemeanor for sentencing. (Davis v. Municipal Court (1988) 46 Cal.3d 64, 70 [grand theft is “wobbler” offense].) Gordon argues alternatively that he was denied effective assistance of counsel when trial counsel failed to raise the issue.
Section 17, subdivision (b), “authorizes the reduction of ‘wobbler’ offenses—crimes that, in the trial court’s discretion, may be sentenced alternately as felonies or misdemeanors—upon imposition of a punishment other than state prison (§ 17, [subd.] (b)(1)) or by declaration as a misdemeanor after a grant of probation (§ 17, [subd.] (b)(3)]).” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.) The trial court retains this authority under the Three Strikes law. (Alvarez, supra, at p. 974.) The reduction of a wobbler is a discretionary sentencing choice, and any claim involving the trial court’s failure to make or articulate its discretionary sentencing choices must be raised at the trial court or be forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Erdelen (1996) 46 Cal.App.4th 86, 91.)
In this case, Gordon knew that the offense was going to be treated as a felony. If not, there was no reason to file the Romero motion; the only remaining count was charged as a misdemeanor. The probation report spoke of the offense only as a felony. The failure of the court to sentence the wobbler offense as a misdemeanor is an issue that could easily have been addressed had Gordon timely objected to the wobbler’s treatment as a felony, and the court did not lack jurisdiction to impose a felony sentence. (People v. Scott, supra, 9 Cal.4th at p. 353.)
Even if we were to conclude that the failure of trial counsel to raise the issue fell below the professional standard of care, there is no prejudice. (People v. Riel (2000) 22 Cal.4th 1153, 1175 [to succeed on claim of ineffective assistance of counsel, appellant must show counsel’s performance was deficient when reviewed by objective standard of reasonableness under prevailing professional norms, and he must show prejudice].) It is clear from the court’s comments when imposing the Three Strikes sentence that it would not have considered a reduction of the grand theft conviction to a misdemeanor.
Further, although the jury found no force or weapons had been used to take the cell phone, the crime involved a direct confrontation between Gordon and his victim. Gilyanna was intimidated; Serrano heard panic in his voice. This is not a pickpocket situation, where property is removed from the person by stealth. (People v. McElroy (1897) 116 Cal. 583, 586.) In addition, Gordon’s post-offense behavior in trying to intimidate Gilyanna into dropping the charges and in trying to get Morehouse and Wilson to stay out of the courtroom made it highly unlikely the trial court would have exercised its discretion to reduce the offense to a misdemeanor even if it had been asked to do so by trial counsel. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [claim of ineffective assistance fails if either of two prongs cannot be shown]; accord, People v. Scott (2000) 83 Cal.App.4th 784, 792.) When a defendant cannot establish the second prong of this test, prejudice, it is unnecessary to first consider whether counsel’s performance was deficient. (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, J., Cornell, J.