Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF125005. Douglas E. Weathers, Judge.
Stephen M. Lathrop, 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, Senior Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 1); felony transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)) (count 2); misdemeanor possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b)) (count 3); misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) (count 4); and misdemeanor driving with a suspended or revoked driver’s license (Veh. Code, § 14601.1, subd. (a)) (count 5). Defendant thereafter admitted that he had suffered five prior serious and/or violent felony strike convictions within the meaning of Penal Code sections 667, subdivisions (c) and (e)(2)(A) and 1170.12, subdivision (c)(2)(A). As a result, defendant was sentenced to a total term of 25 years to life in state prison as follows: 25 years to life on count 1, stayed pursuant to Penal Code section 654 ; 25 years to life on count 2; and concurrent custody time for the misdemeanor convictions.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) we must reverse his admissions of the prior conviction allegations because the trial court did not fully advise him of the constitutional rights he would be waiving by his admissions, and therefore those admissions were not knowing and voluntary; and (2) his 25-years-to-life sentence constitutes cruel and unusual punishment under the federal and state Constitutions. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL BACKGROUND
About 2:00 a.m. on July 20, 2005, defendant was driving on Sixth Street in Corona when he was pulled over by Corona Police Department Officer David Dopson due to defendant’s vehicle having an obstructed license plate. Officer Dopson approached the vehicle and asked defendant for his driver’s license, registration, and proof of insurance. Defendant responded that his driver’s license was suspended; he was unable to produce it. Defendant and front passenger Mathew Sowle then rummaged through the glove compartment for the other requested documents. One of the items they looked in was a black pouch, which typically contains the owner’s manual. Meanwhile, Officer Dopson returned to his patrol car and confirmed through dispatch that defendant had a suspended license. Officer Dopson was also informed that Sowle was on probation.
Officer Dopson then had the two exit the vehicle. Based on his training and experience, Officer Dopson believed defendant to be under the influence of a controlled substance. A subsequent analysis of defendant’s blood showed that he had ingested both marijuana and methamphetamine. A later blood sample of Sowle also showed the presence of methamphetamine.
During a search of the vehicle, Officer Dopson found the black pouch, which the officer had seen earlier, on the driver’s floorboard between the seat and pedals. Inside the pouch, Officer Dopson found two plastic baggies; one contained 2.4 grams of methamphetamine, and the other contained 4.8 grams of marijuana. Defendant and Sowle both denied knowledge of the drugs. Officer Dopson, who had training and experience in the possession and use of controlled substances, opined that the methamphetamine and marijuana found in defendant’s car constituted a usable quantity.
Defendant’s driver’s license had been suspended on April 22, 2000, and remained suspended at the time of the instance offense. Defendant had been notified of the suspension.
At trial, Sowle testified on behalf of the defense and claimed that he alone possessed the drugs found in defendant’s car; as defendant was exiting the vehicle, Sowle threw the drugs toward the driver’s side of the vehicle. Sowle further stated that in a separate proceeding he had pleaded guilty to possession of the narcotics found in the vehicle. Sowle’s testimony was impeached, however, with evidence that while incarcerated he made a telephone call (which was recorded) wherein he stated that defendant would take care of him because he (Sowle) took responsibility for the drugs by pleading guilty.
Defendant testified that he met Sowle about 10 minutes before he was stopped by Officer Dopson and that Sowle had asked him for a ride. Defendant agreed. When Sowle got into defendant’s vehicle, defendant did not have any drugs on him, nor was he aware that Sowle was in possession of drugs. Defendant admitted to driving without a driver’s license and to being under the influence when he was stopped by the officer.
II
DISCUSSION
A. Admission of Prior Strike Convictions
Defendant contends his admission of the prior strike convictions was invalid because the trial court erroneously failed to advise him of his constitutional right to confront witnesses and the privilege against self-incrimination.
Prior to trial, defense counsel indicated that defendant wanted to bifurcate and waive jury trial on the prior conviction allegations. The following colloquy then ensued between the court and defendant:
“THE COURT: [Defendant], under the laws of the State of California, you have a limited right to trial by jury with respect to the prior charges, prior allegations that are set forth in this case, which are in fact strikes. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: Based upon your conversations and discussions with your attorney, is it your intent to voluntarily waive and give up your right to have that limited trial by jury as to the special allegations and priors?
“THE DEFENDANT: Yes.
“THE COURT: The record will reflect that the defendant has had an opportunity to and did discuss the matter with his attorney and finds his waiver with respect to the limited trial by jury for the priors to be a knowing and intelligent waiver.”
The People thereafter presented their case-in-chief, in which defendant cross-examined all of the prosecution witnesses.
Prior to the defense case, defendant’s counsel, in defendant’s presence, informed the court, “[My] client may or may not testify. . . .” Defendant subsequently elected to testify.
Following the verdicts, a date was set for a court trial on the prior convictions. On that date, the prosecutor and defense counsel informed the court that defendant intended to admit five of the prior conviction allegations. Without advising defendant of his constitutional rights, the court then received defendant’s admission of those five prior conviction allegations. After defense counsel advised the court that there was nothing further he wished to “state or put on the record,” the matter was continued for sentencing.
Defendant contends under the totality of the circumstances his purported waiver of rights was not knowing and voluntary. Specifically, he complains the court erred in referring to the jury-trial right as “limited,” failing to explain what the court meant by a “limited” jury-trial right, and taking defendant’s admissions without advising him of his constitutional right to confront witnesses and the privilege against self-incrimination.
It is well settled “that before accepting a criminal defendant’s admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.] Proper advisement and waivers of these rights in the record establish a defendant’s voluntary and intelligent admission of the prior conviction. [Citations.]” (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby); see also In re Yurko (1974) 10 Cal.3d 857, 863 & fn. 5.)
In Mosby, as in this case, the trial court advised the defendant only of his right to a trial on a prior conviction allegation before the defendant admitted the truth of the allegation. Despite the inadequate advisement, the Supreme Court held, “When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial” the admission can be “voluntary and intelligent” even though the defendant was not also advised of his right to remain silent and to confront witnesses, “if the totality of circumstances surrounding the admission supports such a conclusion.” (Mosby, supra, 33 Cal.4th at p. 356.) However, where the record contains no express advisement of the right to a jury trial, “we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses.” (Id. at p. 362.)
In Mosby, the totality of the circumstances included the fact that “defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he [was guilty of the charged offense]. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation. [¶] A review of the entire record also sheds light on defendant’s understanding. For instance, ‘a defendant’s prior experience with the criminal justice system’ is . . . ‘relevant to the question [of] whether he knowingly waived constitutional rights.’ [Citation.] That is so because previous experience in the criminal justice system is relevant to a recidivist’s ‘“knowledge and sophistication regarding his [legal] rights.”’ [Citations.] Here defendant’s prior conviction was based on a plea of guilty, at which he would have received [the pertinent] advisements.” (Mosby, supra, 33 Cal.4th at pp. 364-365, fn. omitted.)
This case differs from Mosby only in the fact that here defendant testified at trial, whereas the defendant in Mosby did not. From the fact that he testified, defendant would have U.S. infer that he was unaware of his right to remain silent. However, defendant was represented by counsel at trial, and from that fact we can infer that he testified only after he was advised by his attorney that he had the right to remain silent and did not have to testify. Further, he was present and presumably paying attention when his counsel advised that court, “[M]y client may or may not testify.” (Italics added.) In addition, from the fact that defendant admitted the prior convictions immediately after a jury trial at which his attorney cross-examined witnesses, we can reasonably infer that defendant was aware of his right to confront and cross-examine witnesses. Moreover, from the fact that defendant had a dismal criminal record, with five alleged prior felony convictions and numerous parole violations, we can also infer that defendant was experienced in the judicial process and thus familiar with his rights. From these facts we can and do conclude that defendant knowingly and voluntarily admitted the prior conviction allegations, even though the trial court did not expressly advise defendant of two of the rights he would be waiving by his admissions.
Defendant contends this case should fall under the Mosby analogy where he “effectively received no admonitions whatsoever, and thus a valid admission should not be inferred,” because the court’s “advisement of some unspecified ‘limited’ jury trial right . . . .” We cannot agree.
Prior to trial, the court informed defendant that he had a “limited” right to a jury trial on the prior conviction allegations and asked defendant if he understood that right. Defendant replied in the affirmative. In addition, the court asked defendant if, “based upon [his] conversations and discussions with [his] attorney,” he voluntarily intended to waive and give up his “limited” right to a jury trial on the priors. Defendant again responded in the affirmative. Though the court did not explain the “limited” jury trial right for the prior conviction allegations, we still conclude defendant voluntarily and knowingly admitted the prior allegations under the totality of the circumstances. In addition, technically the court was correct in referring to the right as “limited.” In People v. Epps (2001) 25 Cal.4th 19, the California Supreme Court held that a defendant faced with a prior conviction allegation has a statutory right to a jury trial. However, a 1997 amendment to section 1025 limited the jury’s role to determining as a matter of historical fact whether the alleged conviction actually occurred. Other questions, such as the defendant’s identity as the person who suffered the conviction, exactly what the offense was, whether the offense was a serious or violent felony for purposes of the three strikes law and whether the defendant served a prison term for the prior offense, are reserved to the trial court. (Epps, at pp. 23-28; see also People v. Kelii (1999) 21 Cal.4th 452, 454-457.)
B. Cruel and Unusual Punishment
Defendant also contends his total sentence of 25 years to life constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and under article 1, section 17 of the California Constitution.
Preliminarily, the People argue defendant waived his claim by failing to raise it below. Several published decisions have found waiver of a criminal defendant’s claim of cruel and/or unusual punishment. (E.g., People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27 (DeJesus); People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8.) In each of those cases, however, the court went on to address the claim. Moreover, Kelley simply cited DeJesus, without any substantive discussion of the waiver issue. However, DeJesus is questionable authority for a blanket rule of waiver of cruel and/or unusual punishment claims.
First, the specific question in DeJesus was whether the trial court should have considered its discretion under People v. Dillon (1983) 34 Cal.3d 441 to reduce a conviction of first degree murder based on cruel and unusual punishment. DeJesus reasoned that “ . . . Dillon makes clear that its holding was premised on the unique facts of that case. [Citation.] Since the determination of the applicability of Dillon in a particular case is fact specific, the issue must be raised in the trial court.” (DeJesus, supra, 38 Cal.App.4th at p. 27.) In contrast, where the issue is merely whether a sentence is cruel and/or unusual punishment, there normally are no “fact specific” issues. Rather, “‘[w]hether a punishment is cruel or unusual is a question of law for the appellate court . . . .’” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.)
Second, the Supreme Court has stated with respect to sentencing claims: “In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (People v. Scott (1994) 9 Cal.4th 331, 354, italics added.) It is at least arguable that a sentence that constitutes cruel and/or unusual punishment is not one “otherwise permitted by law” but simply imposed in a procedurally or factually flawed manner. DeJesus did not consider that question.
Third, as DeJesus itself recognized, it is appropriate to consider even an issue that has been waived “in order to ‘forestall a subsequent claim of ineffectiveness of counsel’” for failure to raise the issue. (DeJesus, supra, 38 Cal.App.4th at p. 27.)
Finally, defendant is allowed to argue that the asserted error in denying his motion to strike his prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 had the additional legal consequence of violating due process. (See People v. Partida (2005) 37 Cal.4th 428, 433-439.) For these reasons, we elect to consider defendant’s contention.
A sentence may constitute cruel or unusual punishment under the state 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.’” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) In analyzing a disproportionality claim under the state Constitution, we examine (1) “the nature of the offense and offender, with particular regard to the degree of danger both present to society” (Lynch, at p. 425), (2) the sentence compared to the sentences for more serious offenses in California (id. at p. 426), and (3) the sentence compared to sentences for the same offense in other states (id. at p. 427). (See also People v. Dillon, supra, 34 Cal.3d at p. 479.) “This three-pronged analysis provides guidelines for determining whether a punishment is cruel or unusual. The importance of each prong depends on the facts of each case. An examination of the first prong alone can result in a finding of cruel or unusual punishment. [Citations.] Regarding the other prongs, defendant bears the burden of proof. [Citation.]” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)
The California Supreme Court has also held that, provided a punishment is proportionate to the defendant’s individual culpability (what the court referred to as “intracase proportionality”), there is no requirement it be proportionate to the punishments imposed in other similar cases (what the court dubbed “intercase proportionality”). (People v. Webb (1993) 6 Cal.4th 494, 536; People v. Mincey (1992) 2 Cal.4th 408, 476; People v. Miller (1990) 50 Cal.3d 954, 1010.) In other words, a determination of whether a punishment violates the state constitutional prohibition against cruel and unusual punishment may be based solely on the offense and the offender. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; see, e.g., People v. Dillon, supra, 34 Cal.3d at pp. 479, 482-488; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
Defendant asserts that his sentence is disproportionate because his present crimes were minor, nonviolent, drug-related crimes. He also claims his “criminal history, which includes several robberies, has not resulted in any serious injury to another person, except for one incident that occurred in 1993 (13 years prior to the instant offenses) where the robbery victim engaged [defendant] in a scuffle, resulting in the victim receiving a one-inch cut above the left eye and two broken ribs.” Despite his attempt to minimize his criminal history, defendant’s argument discounts or ignores the precise circumstance or characteristic that triggers punishment under the three strikes sentencing scheme: his recidivism. Defendant’s criminal history is horrendous -- replete with violent assaultive crimes -- dating back to 1978. In 1978, as a juvenile, he was sent to the California Youth Authority (CYA) after being convicted of robbery with a firearm and assault. In 1979, he was paroled; in 1981, he was convicted of the violent and heinous crimes of forcible sodomy in concert with force or fear and forcible oral copulation in concert with force or fear. He was then sent to state prison for seven years. Thereafter, he was convicted of several theft-related crimes and numerous robberies in California and Arizona and sent to their respective state prisons. In 1996, he was convicted of assault in Arizona and sent to prison for eight years. He was released from state prison in March 2005; about two months later, he committed the instant offenses of transporting and possessing methamphetamine and marijuana while being under the influence of those drugs and driving with a suspended license. In addition, defendant was dishonorably discharged from CYA and violated parole multiple times. Given his criminal history and the current crimes, we cannot say defendant’s sentence of 25 years to life was disproportionate to the offense or the offender. Therefore, we need not compare that sentence to sentences imposed in California for more serious offenses or in other jurisdictions for the same offense. However, we nevertheless do so out of an abundance of caution.
Defendant compares his three strikes sentence with that imposed for first and second degree murder. The comparison is inapt and repeatedly has been rejected. “[P]roportionality assumes a basis for comparison. When the fundamental nature of the offense and the offender differ, comparison for proportionality is not possible. The seriousness of the threat a particular offense poses to society is not solely dependent on whether it involves physical injury. Consequently, the commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 826.)
With respect to sentences for the same offense in other jurisdictions, “California’s scheme is part of a nationwide pattern of statutes calling for severe punishments for recidivist offenders. [Citation.]” (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.) “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, quoting People v. Wingo (1975) 14 Cal.3d 169, 179.)
Defendant also contends that his sentence violates the federal constitutional prohibition against cruel and unusual punishment. We again disagree. A majority of the United States Supreme Court held in Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108] that the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. The court held the Eighth Amendment did not prohibit a sentence under California’s three strikes law of 25 years to life for a defendant who shoplifted golf clubs worth about $1,200, because seven years earlier the defendant had been convicted of three residential burglaries and one first degree robbery. (Ewing, at pp. 17-18, 29-30.)
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 v. California, 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.” (Id. 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, fn. omitted.)
Justices Scalia and Thomas, concurring in the judgment, would have held that the Eighth Amendment does not require proportionality at all. (Ewing v. California, supra, 538 U.S. at pp. 31 (conc. opn. of Scalia, J.), 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, quoting Rummel v. Estelle (1980) 445 U.S. 263, 272 [100 S.Ct. 1133, 63 L.Ed.2d 382 ]; see also Lockyer v. Andrade (2003) 538 U.S. 63, 73-76 [123 S.Ct. 1166, 155 L.Ed.2d 144] [gross disproportionality principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case”].) As an example of a successful challenge, the court stated that the proportionality principle would come into play “‘if a legislature made overtime parking a felony punishable by life imprisonment[.]’” (Ewing, at p. 21.)
This is not such a case. Defendant falls squarely within both the letter and the spirit of the three strikes law. Ewing teaches U.S. that the Eighth Amendment does not prohibit California from choosing to “incapacitat[e]” such a recidivist offender. (Ewing v. California, supra, 538 U.S. 25 (plur. opn. of O'Connor, J.).) In addition, comparing defendant’s current crime and his criminal history with those of defendant Ewing, we cannot say that defendant’s sentence is grossly disproportionate to his criminal culpability so as to constitute cruel and unusual punishment, and we conclude that defendant’s sentence is not cruel and unusual punishment under the federal Constitution.
Ewing and Lockyer v. Andrade are the Supreme Court’s most recent pronouncements on the application of the cruel and unusual punishment clause to state court sentences. Neither decision required that, if the reviewing court concludes a sentence is not grossly disproportionate to the crime, it nevertheless compare the sentence to the sentences for other crimes in the same jurisdiction, or for the same crime in other jurisdictions.
Therefore, it appears that under the court’s most current interpretation all that is required under the Eighth Amendment is the equivalent of the analysis that makes up the first part of the Lynch test. (But see People v. Carmony, supra,127 Cal.App.4th at p. 1077 [applying three-part analysis under Eighth Amendment].) As we have already found no cruel or unusual punishment under that analysis, we hold that defendant’s sentence also did not violate the Eighth Amendment.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., MILLER, J.