Opinion
E032034.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES KIRT LAUDA, Defendant and Appellant.
Edward A. Hoffman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela A. Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
Defendant unsuccessfully challenges the 11-year prison sentence imposed following a remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On October 24, 1999, officers found methamphetamine and marijuana in defendants vehicle. On December 9, 1999, officers who were conducting a probation search found evidence of a methamphetamine lab in a house that was under construction where defendant supervised the construction.
A jury found defendant was guilty of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possessing a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), transporting methamphetamine (§ 11379, subd. (a)), misdemeanor being under the influence of a controlled substance (& sect; 11550, subd. (a)), and misdemeanor resisting arrest (Pen. Code, § 148). The jury found he had two prior drug-related convictions ( § 11370.2, subds. (b) & (c)), he was out on bail pending final judgment when he committed the crimes (Pen. Code, § 12022.1), he was personally armed with a firearm when he committed the methamphetamine manufacturing offense (Pen. Code, § 12022, subd. (c)), and he was ineligible for probation (Pen. Code, § 1203.073, subd. (b)(3)).
All statutory references are to the Health and Safety Code unless otherwise indicated.
At defendants first sentencing hearing, the sentencing court imposed a 13-year prison term. At a second sentencing hearing convened to determine whether a second three-year section 11370.2 enhancement should be added to defendants sentence, the sentencing court imposed a 14-year prison term. The sentencing court recalculated the sentence, imposed a three-year low term instead of a five-year midterm on the methamphetamine manufacturing conviction, and added a second three-year section 11370.2 enhancement.
Defendant appealed, contending, in part, that the sentencing court improperly imposed a second section 11370.2 enhancement term. Concluding that defendant was correct and further that the court had otherwise affirmatively demonstrated its misunderstanding of its discretion under section 1385, we remanded the case for resentencing.
On remand the sentencing court imposed an 11-year prison term comprised of a three-year low term on the methamphetamine manufacturing conviction (§ 11379.6), a three-year prior drug conviction enhancement term (§ 11370.2, subd. (b)), a three-year low term for the firearm enhancement (Pen. Code, § 12022, subd. (c)), a two-year term for the bail enhancement (Pen. Code, § 12022.1), a concurrent two-year midterm for possessing a firearm as a felon (Pen. Code, § 12021, subd. (a)), a concurrent one-year term for being under the influence (& sect; 11550), a concurrent three-year midterm for transporting methamphetamine (§ 11379, subd. (a)), and a concurrent one-year term for resisting arrest (Pen. Code, § 148).
Defendant again appeals, contending (1) the sentencing court failed to recognize the scope of its discretion to dismiss a prior conviction under Penal Code section 1385 and (2) his sentence amounts to cruel and unusual punishment. We affirm.
DISCUSSION
1. The sentencing court did not fail to recognize its discretion under Penal Code section 1385.
A defendant serving a sentence imposed by a court that misunderstood the scope of its discretion to strike prior felony conviction allegations or findings pursuant to Penal Code section 1385, subdivision (a), may raise the issue on appeal. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13, 917 P.2d 628; People v. Metcalf (1996) 47 Cal.App.4th 248, 251-252.) However, the record must affirmatively demonstrate that the court misunderstood the scope of its discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 945, 941 P.2d 1189.)
Arguing the record affirmatively demonstrates the court misunderstood that it had discretion under Penal Code section 1385 to dismiss an enhancement finding, defendant directs our attention to the courts statement "with respect to the allegation that was found true pursuant to Health and Safety Code section 11370.2(b), I will impose the three-year term as mandated by that Penal Code provision." (Italics added.) In our view, the courts statement, considered in the context of its statement of reasons, merely reflected the courts awareness that the section 11370.2 prior drug-conviction enhancement did not provide a range from which a term could be selected, unlike the Penal Code section 12022, subdivision (c) firearm enhancement which the court recognized provided "a range of three, four, or five years." The court selected the three-year low term for the firearm enhancement and stated reasons for its decision. The courts use of the word "mandated" indicates its awareness that no statement of reasons was required for imposing a three-year term on the section 11370.2 enhancement since that was the only term specified by the statute.
Imposing an 11-year prison term, the sentencing court stated: "I initially sentenced [defendant] to 13 years in prison. Then when I re-sentenced him, I sentenced him to 14 years in prison. [P] Then it will be the order of the Court with respect to Count 1, that being a violation of Health and Safety Code section 11379.6, that I will sentence you, [defendant], to the low term of three years in state prison. For that count, Im selecting the low term in that for several reasons. I think, again, these crimes for which you were convicted all occurred within a nine-month period of time, late in your life. And I think your culpability, with respect to the manufacturing charge, was less than your co-defendant, . . . And so I do believe that based upon those factors, that the low term is appropriate. [P] Also, with respect to the allegation that was found true pursuant to Health and Safety Code section 11370.2(b), I will impose the three-year term as mandated by that Penal Code provision. [P] Also, with respect to the gun allegation, pursuant to Penal Code section 12022(c), again, that allegation gives a range of three, four, or five years. And Im also going to select the low term as to the gun allegation. Im selecting the low term as to that allegation due to the fact that the gun was an antique. It was in a closet, and there were some other arguable reasons as to why the gun was present at that residence at that time, though the jury did find that allegation to be true. [P] So again, I will impose the low term of three years as to that allegation and order that that three-year term run consecutive to the three years previously imposed in Count 1, plus the three years imposed pursuant to the 11370.2(b) allegation. [P] And just so the record is clear as far as the 11370.2(b) allegation, Im also ordering that that run consecutive to the low term imposed as to Count 1. [P] Finally, as to the out-on-bail allegation alleged pursuant to Penal Code section 12022.1, I will impose the two[-]year mandated prison term as to that allegation and order that that run consecutive to the previous terms imposed. So the total term of imprisonment as to Count 1 will be 11 years. [P] As to Count 3, that being a violation of Penal Code section 12021(a), Im going to impose the midterm of two years as to that count and order that that count run concurrent to the 11 years previously imposed in Count 1. [P] As to Count 4, which is a violation of Health and Safety Code section 11550, Im going to order that you serve one year on that count and order that that run concurrent to the time previously imposed in Counts 1 and 3. [P] As to Count 5, that being a violation of Health and Safety Code section 11379(a), I am going to impose the midterm of three years. Im going to order that that three-year term of imprisonment run concurrent — [P] . . . [P] So again, as to Count 5, that being a violation of Health and Safety Code section 11379(a), I am going to impose the midterm of three years and order that that three-year term of imprisonment run concurrent to the time previously imposed in Counts 1, 3, and 4, pursuant to stipulation of counsel. [P] . . . [P] As to Count 6, that being a violation of Penal Code section 148, I will impose a one-year term of custody, and I11 order that that one year run concurrent to the time previously imposed in Counts 1, 3, 4, and 5, again, pursuant to the stipulation of counsel."
Defendant also points to the colloquy that occurred after sentence was pronounced when defense counsel asked the court what it was going to do with the second section 11370.2 allegation. The court answered it was clear that only one enhancement was appropriate "because that type of allegation goes to the offender, not to the offense. Its not offense related. Its offender related. So even though it was found to be true as alleged by the People in Count 5, I dont think I can sentence on it in any respect, whether it be staying it, striking it, or anything." The prosecutor added "if the Court could or was required to sentence on that, the Court would exercise its discretion under 1385 to stay that penalty on that as to that particular enhancement." The court agreed, "Yes. If the Court — if I needed to sentence on that, which I dont think I do, pursuant to this decision, I would exercise my discretion to — either under 1385 or the Romero type of analysis, I would stay it or strike it." The foregoing persuades us that the court correctly understood that it had discretion under section 1385 to dismiss a section 11370.2 enhancement.
As the People note, the abstract should be corrected to indicate only one section 11370.2 enhancement was imposed.
Defendant argues the sentencing courts misunderstanding of its discretion is further demonstrated by its failure to discuss dismissing the section 11370.2 enhancement when defense counsel urged the court to grant probation. But defense counsel did not mention the section 11370.2 enhancement at that time, although he did urge the court to grant probation by striking the firearm enhancement (Pen. Code, § 12022, subd. (c)). Thus, it was unnecessary for the sentencing court to refer to the section 11370.2 enhancement when it responded to defense counsels argument, saying, "Dont worry about arguing for probation, because thats not going to happen."
Defendant argues the sentencing courts concern that a codefendant who was the actual methamphetamine cook had received a lesser sentence is proof that the court would have imposed a lesser sentence had it understood its discretion. But, as the prosecution pointed out, the codefendant did not have either a firearm or an out-on-bail enhancement, while defendant had both.
Codefendant John Donahue pled guilty and is not a party to this proceeding.
Finally, this courts earlier opinion clearly apprised the sentencing court of its discretionary authority to dismiss prior felony conviction allegations or findings in furtherance of justice pursuant to Penal Code section 1385, subdivision (a), as discussed in People v. Superior Court (Romero ), supra, 13 Cal.4th 497. The sentencing courts statements on resentencing indicate it read and understood the opinion.
In view of the foregoing, we conclude defendant has failed to affirmatively demonstrate that the sentencing court, which stated it had spent a considerable amount of time thinking about defendants sentence, was not fully aware of its discretionary authority under Penal Code section 1385.
2. Defendants 11-year sentence does not constitute cruel and unusual punishment.
Defendant contends that his 11-year sentence is disproportionate to his criminal culpability and, therefore, constitutes cruel and unusual punishment. We affirm.
The power to define crimes and prescribe punishment is a legislative function and courts will interfere only if the statute prescribes a penalty so severe in relation to the crime as to violate the constitutional prohibition against cruel and unusual punishment. (People v. Dillon (1983) 34 Cal.3d 441, 477-482, 194 Cal. Rptr. 390, 668 P.2d 697; In re Lynch (1972) 8 Cal.3d 410, 423— 424, 105 Cal. Rptr. 217, 503 P.2d 921.) Punishment offends the proscription against cruel and unusual punishment when 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 410, 424, fn. omitted.)
A three-prong test has been established to determine whether a sentence is cruel and unusual punishment. First, the court examines the nature of the offense and the offender, with particular regard to the degree of danger both present to society. (In re Lynch, supra, 8 Cal.3d at p. 425.) Examining the facts of the crime in question, rather than the crime in the abstract, the court considers the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendants involvement, and the consequences of the defendants acts. With respect to the offender, the court inquires whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d at p. 479.) Second, the court compares the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the court compares the challenged penalty with those imposed for the same offense in other jurisdictions. (In re Lynch, supra, 8 Cal.3d 410, 426-427.) This analysis, however, merely provides guidelines for determining whether a given punishment is cruel or unusual and the importance of each prong depends on the facts of the specific case. (People v. Ayon (1996) 46 Cal.App.4th 385, 398-399, overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 593-595, 957 P.2d 945.) Because it is the Legislature that determines the appropriate penalty for criminal offenses, a defendant must overcome a considerable burden in convincing the court the sentence was disproportionate to his level of culpability. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.) Successful challenges to proportionality are an "exquisite rarity." (Id. at p. 1196.)
Defendant argues the full extent of his wrongdoing is essentially that he allowed a family member — the codefendant — to make drugs for personal use in a home owned by another family member who independently had given the codefendant access to the home while a gun was stored in a closet. Apparently, defendant fails to appreciate the seriousness of his criminal conduct. He was convicted of manufacturing methamphetamine (§ 11379.6, subd. (a)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), transporting methamphetamine (§ 11379, subd. (a)), being under the influence of a controlled substance (§ 11550, subd. (a)), and resisting arrest (Pen. Code, § 148). He committed the offenses while he was out on bail (Pen. Code, § 12022.1) after having been convicted of prior drug-related offenses (§ 11370.2, subd. (b)), and while he was personally armed with a firearm (Pen. Code, § 12022, subd. (c)).
While it is true, as defendant argues, that none of the crimes were violent, the determination of whether a sentence is cruel and unusual punishment does not turn on this factor. (See People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338 [Recidivist punishment is proper even where the current offense is not a violent one.].) The seriousness of the threat a particular offense poses to society is not solely dependent upon whether it involves physical injury. (Rummel v. Estelle (1980) 445 U.S. 263, 275, 63 L. Ed. 2d 382, 100 S. Ct. 1133.)
Here, recidivism was a factor in defendants punishment. His conviction for being a felon in possession of a firearm required a prior conviction; the section 11370.2 enhancement was due to a prior drug-related conviction; and he was out on bail pending final judgment for another drug-related offense. Furthermore, he resisted arrest and his illicit methamphetamine lab posed a serious risk to the neighborhood. Thus, his conduct shows a blatant disregard for the law, a failure to benefit from the leniency granted after an earlier conviction, a willingness to engage in illegal drug activity, a use of force to avoid arrest, and a serious risk of danger to society.
Defendant argues his sentence is greater or equal to sentences for more serious felonies. But, he is comparing his sentence which was imposed for several crimes accompanied by enhancements to a sentence for a single crime. A comparison with multiple offenses accompanied by enhancements would have demonstrated that sentences imposed for more serious offenses are greater than the sentence imposed in this case. A single act of murder, while certainly heinous and severely punished, cannot be compared with the commission of multiple felonies. (People v. Ingram (1995) 40 Cal.App.4th 1397, 1416, overruled on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8, 941 P.2d 56.)
Defendant fares no better under the federal Constitution. A majority of our United States Supreme Court recently held that the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. (Ewing v. California (Mar. 5, 2003, No. 01-6978) U.S. .) In Ewing, the Court held the Eighth Amendment did not prohibit a "Three Strikes" law sentence of 25 years to life for a defendant who shoplifted golf clubs worth about $ 1,200 since he had been convicted of three residential burglaries and one first degree robbery seven years earlier. (Ibid.) Defendant here was convicted of manufacturing methamphetamine (§ 11379.6, subd. (a)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), transporting methamphetamine (§ 11379, subd. (a)), being under the influence of a controlled substance (§ 11550, subd. (a)), and resisting arrest (Pen. Code, § 148). He committed the offenses while he was out on bail (Pen. Code, § 12022.1) after having been convicted of prior drug-related offenses (§ 11370.2, subd. (b)), and while he was personally armed with a firearm (Pen. Code, § 12022, subd. (c)). Comparing defendants current crimes and his criminal history with those of defendant Ewing, we cannot say that his 11-year sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment under the United States Constitution.
In view of the foregoing, we conclude defendant has failed to demonstrate that his 11-year prison term is so disproportionate to his criminal conduct that it shocks the conscience and thus constitutes cruel and unusual punishment.
DISPOSITION
The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to reflect only one three-year section 11370.2 enhancement term was imposed. The court is further ordered to forward the amended abstract of judgment to the Department of Corrections.
We concur: RICHLI, J., and KING, J.