Opinion
F061034 Super. Ct. No. 07CM9025
12-02-2011
THE PEOPLE, Plaintiff and Respondent, v. ISIDORO IRABURO, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Kane, J. and Poochigian, J.
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Isidoro Iraburo, pled guilty to two counts of battery by a confined person on a non-confined person (Pen. Code, § 4501.5) and admitted allegations that he had two convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code.
On appeal, Iraburo contends: 1) the court abused its discretion when it denied his motion to dismiss one or both of his strike convictions; and 2) his sentence violates the constitutional prohibition against cruel and unusual punishment. We will affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTS
On October 10, 2007, at approximately 10:00 a.m., after the unit classification committee at Avenal State Prison suspended Iraburo's visits with his daughter, Iraburo became agitated and stated, "You might as well lock me up right now because I'm not going to program." Iraburo then disobeyed an order by Correctional Counselor Mike Rocha to leave the committee room. After he refused two more orders, Iraburo lunged at Rocha and struck him on the face several times. Iraburo continued to resist after Rocha tackled him. When other correctional staff assisted Rocha, Iraburo struck another correctional counselor on the face.
On February 28, 2008, the court suspended criminal proceeding and ordered an evaluation of Iraburo to determine his competency to stand trial.
On March 21, 2008, Dr. Laura Geiger performed a psychological evaluation of Iraburo.
On March 24, 2008, Dr. Geiger filed a report wherein she concluded that Iraburo was incompetent to stand trial.
On April 16, 2008, the court committed Iraburo to Atascadero State Hospital.
On September 22, 2008, Dr. Robert Knapp, the medical director at Atascadero State Hospital filed a Certification of Mental Competency certifying that Iraburo was competent to stand trial. In an accompanying evaluation, Staff Psychiatrist Gayle Gaines, in pertinent part, diagnosed Iraburo with malingering, pedophilia, and antisocial personality disorder. Dr. Gaines noted that Iraburo insisted that he had bipolar disorder and blamed this condition for his assaultive and angry outbursts. However, Iraburo did not exhibit symptoms of bipolar disorder. Dr. Gaines also noted that Iraburo attempted to rationalize the sexual assaults of his sister-in-law by claiming that she was in love with him.
Iraburo was originally charged with four prior strike convictions that were based on his four convictions in 1990 for sexual penetration by force and for which he served a six-year term. Iraburo was arrested for the underlying offenses on November 4, 1984. The victim of these offenses was Iraburo's sister-in-law who lived with Iraburo and his wife when the assaults occurred. The victim was 12 years old when the assaults began and 15 years old when they ceased.
Additionally, in 2004 Iraburo was convicted of possession of a firearm by a felon (§ 12022.1, subd. (a)(1)) and misdemeanor possession or distribution of obscene material (§ 311.2). Iraburo committed his current offenses while serving a sixyear term for the possession of a firearm conviction.
On October 14, 2008, the court found Iraburo competent to stand trial and reinstated criminal proceedings.
On November 26, 2008, the district attorney filed an information charging Iraburo with two counts of battery by a confined person upon a non-confined person and having four prior strike convictions within the meaning of the three strikes law.
On January 25, 2010, Iraburo pled not guilty by reason of insanity.
On February 2, 2010, the court appointed Dr. Howard Terrell and Dr. Luis Velosa to perform psychiatric examinations of Iraburo to determine whether he was insane at the time he committed the current offenses.
In a report filed on February 18, 2010, Dr. Velosa concluded that Iraburo suffered from bipolar disorder, but was not legally insane when he committed the current offenses.
In a report filed on February 19, 2010, Dr. Terrell also diagnosed Iraburo with bipolar disorder and found him not legally insane when he committed the current offenses. With respect to the current offenses, Dr. Terrell wrote: "... Mr. Iraburo states that he does not remember committing the crime and as a result cannot tell me what he was thinking at the time he struck the two officers. The information I have reviewed to date leads me to believe that Mr. Iraburo struck the officers out of anger and frustration when he was informed that he could not have visitation with minors as a result of his prior history [of] sex crimes."
On June 15, 2010, Iraburo entered a negotiated plea in this matter which provided that in exchange for Iraburo's plea to the two substantive counts and his admission of two of the prior strike convictions, the court would strike the remaining two strike convictions. The court then struck two of Iraburo's strike convictions in accord with his plea agreement.
On July 16, 2010, the defense filed a Statement of Circumstances in Mitigation. In pertinent part, defense counsel argued that the current offenses occurred because of Iraburo's mental illness and his failure to take antipsychotic medication due to an allergic reaction, which also resulted in Iraburo not sleeping in the days preceding the assaults.
On July 20, 2010, defense counsel asked the court to strike one additional strike conviction because the strike convictions were remote, Iraburo had a history of mental illness, he was remorseful, and striking one conviction would still result in Iraburo facing a 10-year term. Defense counsel, however, did not argue that a sentence of 50 years to life would violate the constitutional ban on cruel and unusual punishment.
The prosecutor responded, in pertinent part, that Iraburo had four very serious prior sex offenses, his subsequent conviction for possessing obscene material indicated that he continued to engage in inappropriate behavior, and that one of the doctors who examined Iraburo concluded that Iraburo was not delusional when he committed the current offenses.
The court denied Iraburo's motion and sentenced him to two indeterminate terms of 25 years to life, which it imposed consecutively to each other and consecutively to the term Iraburo was serving when he committed the current offenses. In denying the motion the court stated,
"All right, the Court does recognize that it has the discretion to strike prior strike allegations pursuant to ... Section 1385 and [Romero]. And, although the discretion is broad it must be in the interest of justice. In the current case the defendant admitted to suffering two strike convictions with two additional strikes dismissed by the People. The Court took into account, in deciding whether to [exercise its] discretion, first the defendant has a serious record he was convicted of four counts of ... Section 289 [forcible] act of penetration and eight years after his release from prison he committed another felony[,] possession of a firearm. However, a particular concern with the Court is the misdemeanor conviction of ... Section 311.2. And, it does show a -- an inappropriate sexual conduct that seems to be continuing with Mr. Iraburo.
"The current offense demonstrates that the defendant is a danger to others. He was in a prison setting, he was given some information that he didn't agree with, and his response was a response of violence by attacking one correctional officer and when another correctional officer assisted in trying to control the defendant he hit that officer.
"So, based on the defendant's past conduct and his violent nature of the current offense the Court will not exercise [its] discretion to strike any strikes."
DISCUSSION
The Romero Motion
We review a ruling on a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams (1998) 17 Cal.4th 148, 162.) The appellant bears the burden of establishing that the trial court's decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our judgment for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) "It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant's] prior convictions." (Ibid.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
Defense counsel made an oral request pursuant to Romero at the sentencing hearing and argued that the court should strike one of his prior strike convictions. The trial court was well aware of its discretion to strike one or both of Iraburo's prior serious felony convictions pursuant to Romero and declined to do so noting the serious and/or violent nature of his criminal history and his current offenses.
Iraburo contends that the serious nature of his four sexual penetration by force convictions was mitigated by the remoteness of the underlying crimes, which he was arrested for in 1984 when he was 19 years old, and of his convictions for these offenses, which occurred in 1990. However, Iraburo's sex offenses were particularly serious because he committed them over several years against an underage victim who was particularly vulnerable by virtue of being Iraburo's sister-in-law who lived in Iraburo's household. Further, although the offenses were remote, in September 2008, Dr. Gaines diagnosed Iraburo as a pedophile and noted that Iraburo attempted to rationalize his sexual assault of the victim by claiming that the victim was in love with him. These circumstances underscore the court's concern that Iraburo's conviction for possessing pornographic material showed that he continued to engage in inappropriate sexual conduct.
Iraburo also contends that the court should have considered the fact that when he committed the current offenses he was suffering from a continuing mental disorder and had ceased taking medication for this condition. Iraburo is wrong. The court was aware of Iraburo's mental condition and the circumstances relating to his medications because this information was contained in the various psychological reports that are part of the record. However, these reports also included one from Dr. Terrell who concluded that Iraburo committed the current offenses out of anger and frustration over being denied the right to have visitation with minors.
Iraburo is essentially asking this court to reweigh the evidence and substitute our judgment for that of the trial court. We decline his invitation to do so. "Where 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." (Myers, supra, 69 Cal.App.4th at p. 310, quoted with approval in Carmony, supra, 33 Cal.4th at p. 378.)
Given the length and seriousness of Iraburo's criminal history the court did not abuse its sentencing discretion in denying his request pursuant to Romero to strike one of his prior strike convictions. The record in this case affirmatively shows that the court understood its discretionary authority and it weighed all of the competing facts to reach a reasonable conclusion. After evaluating the entirety of that information, the court drew its ultimate conclusion and declined to exercise its discretion to strike one of the prior strike convictions. In view of these facts and circumstances, Iraburo has failed to show that the court abused its discretion. (See Carmony, supra, 33 Cal.4th at pp. 378-380; Myers, supra, 69 Cal.App.4th at p. 310.)
The Cruel and Unusual Punishment Claim
Iraburo contends that his sentence violates the Eighth Amendment of the United States Constitution because it is disproportionate to the crimes he committed. According to Iraburo, a term of 50 years to life amounts to a life sentence with only a slim chance for parole and is disproportionate to the two relatively minor offenses he committed. We disagree.
Preliminarily, we conclude that since appellant did not raise this issue in the trial court, he forfeited it on appeal. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) However, even if this issue were properly before us, we would reject it.
The United States Supreme Court has upheld three strikes sentencing, even when applied to a person convicted of a nonviolent third strike. In Ewing v. California (2003) 538 U.S. 11 (Ewing), the defendant had four strike prior convictions, plus a number of non-strike priors. (Id. at pp. 18-19.) While still on parole, he stole three golf clubs worth a total of $1,200. (Id. at pp. 17-18.) As a result, he was sentenced under California's three strikes law to 25 years to life. (Ewing, supra, at p. 20.)
A plurality of three justices held that this did not constitute cruel and unusual punishment. They explained:
"When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice." (Ewing, supra, 538 U.S. at p. 25 (plur. opn. of O'Connor, J.).)
They noted: "In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism." (Ewing, supra, at p. 29.) The plurality concluded: "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record." (Id. at pp. 29-30.)
Justices Scalia and Thomas, concurring in the judgment, would have held that the Eighth Amendment does not require proportionality at all. (Ewing, supra, 538 U.S. at p. 31 (conc. opn. of Scalia, J.); id. at p. 32 (conc. opn. of Thomas, J.).) Accordingly, a majority of the Supreme Court not only upheld Ewing's sentence, but would have upheld a three strikes sentence in all but an "'exceedingly rare'" case. (Id. at p. 21; see also Lockyer v. Andrade (2003) 538 U.S. 63, 73-76.)
This is not such a case. Iraburo's four convictions for violent sexual offenses, his two current violent offenses, and his intervening criminal conduct bring him squarely within both the letter and spirit of the three strikes law. He will be serving the bulk of the remainder of his life in prison because he has a history of criminal activity and has chosen to continue to participate in criminal activity. Ewing teaches us that the Eighth Amendment does not prohibit California from choosing to "incapacitat[e]" such a recidivist offender. (Ewing, supra, 538 U.S. at p. 25 (plur. opn. of O'Connor, J.).) We therefore conclude that Iraburo's sentence is not cruel and unusual punishment under the federal Constitution.
DISPOSITION
The judgment is affirmed.