Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM8588, Lynn C. Atkinson, Judge.
Barbara Michel, 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, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Appellant Salatiel Gutierrez was convicted of possessing heroin in prison. He was sentenced to 25 years to life in prison under the three strikes law, consecutive to the sentence he was already serving. On appeal, appellant contends the three strikes sentence is unconstitutional because it constitutes cruel and unusual punishment. In supplemental briefing, appellant contends his trial counsel rendered ineffective assistance by failing to advocate for a reduced sentence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2006, appellant’s wife came to visit him in the visiting room at Avenal State Prison. When the visit ended, a correctional officer searched appellant for contraband and found a condom in one of appellant’s socks. The condom contained three bindles of suspected heroin, one bindle of tobacco, and rolling papers. The three bindles of suspected heroin collectively weighed over 26 grams. The officer that received the bindles and sent them to the laboratory for testing opined that 26 grams is a usable amount of heroin. A criminalist selected one of the three bindles at random for testing. The bindle weighed 7.99 grams and contained heroin. The criminalist opined that 7.99 grams would yield about 160 usable amounts or dosage units of heroin.
On July 9, 2007, a jury found appellant guilty of unlawfully possessing heroin in state prison (Pen. Code, § 4573.6) with three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12).
All further statutory references are to the Penal Code.
On August 6, 2007, this discussion took place at appellant’s sentencing hearing:
“THE COURT: I have reviewed the state prison report filed August 3rd .… The defendant has been found guilty at jury trial of unauthorized possession of controlled substance in prison. There were also three serious or violent convictions that were found to be true by the jury. Under the law, then, the defendant is not eligible for probation. Based upon the prior record, the Court would not grant probation if he were eligible.
“I have reviewed the report and based upon his prior convictions of murder, first-degree burglary, and second-degree robbery, I do not find good cause would exist to exercise discretion under Romero.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
“The sentence, then, imposed by operation of law would be an indeterminate term of life of 25 years before an eligibility of parole consideration, and that would be served consecutively to his current term of incarceration.
“That would be my tentative, I would like to hear from both of you before I make my final decision.
“[THE PROSECUTOR]: The People submit it on the supplemental report from the probation department and the Court’s comments.
“[DEFENSE COUNSEL]: Your Honor, my only consideration would be in the amount of restitution that’s ordered. [Appellant] is an indigent prison inmate currently serving a 15 to life term, that imposition of restitution fine of $5,000.00 is excessive in this matter. I would ask the Court to consider something significantly less.
“With that, I submit.
“THE COURT: Thank you.
“Is there any reason why [appellant] could not be gainfully employed within the confines of the state prison?
“[DEFENSE COUNSEL]: Your Honor, $5,000.00 is about 25 years worth of wages.
“[THE PROSECUTOR]: It’s appropriate, your Honor.
“THE COURT: That’s about $200.00 per year. I don’t see that to be difficult for him to earn.
“I thank both counsel for their comments.
“For the reasons stated, then, for a violation of Penal Code Section 4573.6, with the three prior strike offenses found to be true, the Court will impose the term called for by operation of law, that is an indeterminate term of life, with a minimum of 25 years before parole eligibility; that is to be served consecutive to and commenced upon the time that he would otherwise be released from custody on Case C87677 out of Orange County Superior Court for PC 187, 461.1, and 212.5(b) of the Penal Code.”
DISCUSSION
I. Cruel and Unusual Punishment
Appellant contends that his aggregate sentence of 40 years to life -- his sentence of 25 years to life for the current offense plus the sentence of 15 years to life he was already serving -- constitutes cruel and unusual punishment under the federal and California constitutions.
Respondent argues that appellant forfeited his claim by failing to raise it at the time of sentencing. We agree. A claim of cruel and unusual punishment not raised in the trial court is forfeited on appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In any event, the claim has no merit.
We also agree with respondent that this appeal is properly viewed as a challenge to appellant’s 25-year-to-life sentence under the three strikes law for the current offense, and not to the 15-year-to-life sentence he received for his prior conviction, or an aggregate of the two sentences.
A. Federal Constitution
A punishment for a term of years violates the Eighth Amendment to the United States Constitution if it is an “‘extreme sentence[] that [is] “grossly disproportionate” to the crime.’” (Ewing v. California (2003) 538 U.S. 11, 23 (Ewing) (plur. opn. of O’Connor, J.); Lockyer v. Andrade (2003) 538 U.S. 63, 72; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin) (conc. opn. of Kennedy, J.).) In a noncapital case, “‘successful challenges to the proportionality of particular sentences have been exceedingly rare.’ [Citation.]” (Ewing, supra, 538 U.S. at p. 21.)
In Ewing, the United States Supreme Court upheld application of California’s three strikes law where the defendant was sentenced to a term of 25 years to life for shoplifting golf clubs worth approximately $ 1,200. (Ewing, supra, 538 U.S. at pp. 17-18, 30-31.) In rejecting his cruel and unusual punishment claim, the court explained that the Eighth Amendment contains a narrow “proportionality principle” applicable to noncapital sentences. However, the Eighth Amendment does not require strict proportionality between crime and sentence, but only forbids extreme sentences that are grossly disproportionate to the crime. (Id. at p. 23.)
Here, there is no doubt that the possession of a large quantity of heroin by a prison inmate is a serious crime. Appellant tries to minimize the seriousness of his offense on the basis that it was nonviolent and that there was no evidence he possessed the heroin for sale. However, a criminalist testified that one bindle alone would yield 160 usable amounts. It is difficult to conceive of any purpose for this crime other than to pose a serious risk to the bodily safety of others, either by appellant using the heroin himself or supplying it to other inmates to use. Justice Kennedy in his concurrence in Harmelin identified potential impacts of drug use and drug dealing on society, stating, “(1) A drug user may commit crime because of drug-induced changes in physiological functions, cognitive ability, and mood; (2) A drug user may commit crime in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the drug business or culture.” (Harmelin, supra, 501 U.S. at p. 1002.) In our view, these same societal impacts would apply in the prison setting and present a grave risk, not only to inmates, but also to prison staff.
Appellant also compares his case to several others to demonstrate that the punishment rendered by the trial court was grossly disproportionate to his crime. We do not find those cases persuasive because we do not find appellant’s crime to be comparable to the offenses in those cases. In People v. Carmony (2005) 127 Cal.App.4th 1066, the court found a 25-year-to-life sentence to be cruel and unusual where the current offense was a “harmless technical violation of a regulatory law” – failure to register as a sex offender. (Id. at pp. 1072-1077.) In Banyard v. Duncan (C.D. Cal. 2004) 342 F.Supp.2d 865, a 25-year-to-life sentence was found to be grossly disproportionate where the predicate offense was possession of a small amount of rock cocaine. (Id. at pp. 867-868, 878.) The Ninth Circuit, in Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, found a 25-year-to-life sentence grossly disproportionate to a crime of petty theft (id. at pp. 756-758), and found a similar sentence grossly disproportionate to a crime of perjury in Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, 965, 968-970.
B. California Constitution
A punishment also may violate the California Constitution 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 (1972) 8 Cal.3d 410, 424 (Lynch).) In order to make that determination, Lynch suggests that we focus on the following three areas, any one of which can, by itself, establish disproportionality: (1) the nature of the offense and the offender; (2) a comparison with the punishment imposed for more serious crimes in the same jurisdiction; and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.) With respect to the offense, we consider “the totality of the circumstances … in the case at bar.” (People v. Dillon (1983) 34 Cal.3d 441, 479.) With respect to the offender, we consider his “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.) A proportionality analysis can also take account of punishments imposed for similar or greater crimes in other cases in California and other jurisdictions. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1662.)
The nature of the offense, as we have explained, was serious. As for the offender, appellant’s prior offenses constituted serious antisocial behavior and the record contains little in the way of mitigating circumstances. Appellant’s probation report shows he was convicted in 1990 of possessing a controlled substance for sale (Health & Saf. Code, § 11351), and was sentenced to three years’ probation. On June 10, 1992, he was convicted of three serious and/or violent felonies, including second degree murder, first degree burglary, and second degree robbery. The abstract of judgment reflects he received a 15-year-to-life term for the murder, a concurrent four-year term for the burglary, and a concurrent three-year term for the robbery. Appellant suggests mitigating circumstances is that his 1992 crimes possibly “arose out of the same occasion” and the trial court selected concurrent rather than consecutive terms. However, as appellant acknowledges, the details underlying his prior offenses are not disclosed in the record, and thus we cannot speculate as to whether or not certain mitigating factors existed. Moreover, the fact appellant has been incarcerated since 1992, and thus has had a restricted opportunity to commit crimes, substantially undermines his suggestion that the “remoteness” of his 1992 convictions “should lessen the weight to be attached to his criminal history.” Our review of the offenses and the offender does not compel us to find that appellant’s sentence is grossly disproportionate to the crime he has committed sufficient to shock the conscience and offend notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 424.)
With respect to the second area of focus – a comparison of the challenged penalty with punishments for more serious offenses committed in the same jurisdiction (In re Lynch, supra, 8 Cal.3d at p. 426) – appellant urges that the sentence is far greater than that imposed for “far more serious and violent crimes” such as voluntary manslaughter (maximum of 11 years), second degree murder (maximum of 15 years to life) or rape (maximum of eight years). In making such a comparison, appellant ignores the fact that he is not being punished “merely on the basis of his current offense but on the basis of his recidivist behavior.” (Cf. People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137.) As noted in People v. Mantanez (2002) 98 Cal.App.4th 354,
“‘The basic fallacy of appellant’s argument lies in his failure to acknowledge that he “is not subject to a life sentence merely on the basis of his current offense but on the basis of his recidivist behavior. Recidivism in the commission of multiple felonies poses a manifest danger to society[,] justifying the imposition of longer sentences for subsequent offenses. [Citations.]” [Citation.]’” (Id. at p. 366, quoting People v. Stone (1999) 75 Cal.App.4th 707, 715.)
As for the third area of inquiry, although California’s sentencing scheme is among the most severe recidivist schemes in the nation, the law’s harshness does not render it unconstitutional.
“That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’ [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
We conclude that appellant’s sentence does not violate the proscription of cruel or unusual punishment under either the California or the United States Constitution.
II. Ineffective Assistance of Counsel
Appellant contends his trial counsel rendered ineffective assistance by failing to advocate for a reduced sentence. But “[i]n order to prevail on this ground he must prove that counsel’s deficient performance resulted in prejudice. [Citation.]” (People v. Quinn (2001) 86 Cal.App.4th 1290, 1295; see also Strickland v. Washington (1984) 466 U.S. 668, 687.) Appellant has neither shown from the record why his counsel did not advocate for a lower sentence or that had counsel done so there would have been a reasonable probability of a different result. (Ibid.; People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
Appellant suggests his trial counsel should have requested that “the 15-life sentence for the three prior convictions be served concurrently with the 25-life sentence on the current offenses.” However, the relevant statutes provide that, where a defendant receives a 25-year-to-life sentence under the three strikes law, that sentence “will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.” (§§ 667, subd. (c)(8), 1170.12, subd. (a)(8); italics added.) Appellant does not point to any law which would permit the imposition of concurrent terms in this case. However, even assuming appellant is correct in his supplemental reply brief when he asserts that there might conceivably be a situation where a trial court could lawfully impose a three strikes sentence and order it to run concurrently to a sentence already being served “‘in furtherance of justice’” pursuant to section 1385, appellant has not demonstrated that this would qualify as such a case. Given the clear statutory mandate of consecutive terms, it is not reasonably probable the trial court would have imposed concurrent terms had they been requested by appellant’s counsel at sentencing.
Appellant also suggests his counsel should have sought “other relief pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497” but offers no basis to conclude the trial court likely would have granted such relief had it been requested. Indeed, in announcing its tentative sentencing decision, the trial court explicitly stated that, in light of appellant’s prior strike convictions, the court did “not find good cause would exist to exercise discretion under Romero.” In this regard, appellant asserts: “The court’s reference to appellant’s prior convictions as the sole reason not to exercise discretion under Romero suggests that the presentation of mitigating evidence of some kind might have tipped the scales in favor of such exercise of discretion. While the record is woefully lacking in any kind of investigation into appellant’s background, it is likely that with some effort, trial counsel would have been able to find something to argue on behalf of his client.” However, where, as here, the record is inadequate to show counsel’s reasons for the alleged omissions, the proper procedure is to raise these claims in a habeas proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
Finally, we also reject appellant’s assertion that he is entitled to reversal per se. There are certain particularly egregious situations in which a denial of the right to the effective assistance of counsel requires per se reversal of a defendant’s conviction. (United States v. Cronic (1984) 466 U.S. 648, 658-659 (Cronic).) Those situations include a complete denial of counsel at a critical stage of the trial, or an entire failure to subject the prosecution’s case to meaningful adversarial testing. (Id. at p. 659.) However, “[a]part from circumstances of that magnitude ... there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt. [Citations.]” (Id. at p. 659, fn. 26.) Appellant has not shown the circumstances here require reversal per se under Cronic.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., DAWSON, J.