Opinion
G045094
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. CLYDE LEE MALLETT, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Niki Shaffer and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. RIF127195)
OPINION
Appeal from a judgment of the Superior Court of Riverside County, John D. Molloy, Judge. Reversed and remanded with directions.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Niki Shaffer and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
The court sentenced defendant Clyde Lee Mallett to 25 years to life under the "Three Strikes" law, plus three consecutive one-year terms for each separate commitment he has served in state prison. He contends his sentence is cruel and unusual. We conclude defendant's sentence does not violate the state or federal constitutions.
Defendant also requests that we independently review the in camera Pitchess hearing held below to determine whether the trial court properly denied his motion for discovery of information contained in the personnel files of the three law enforcement officers involved in his arrest. We conditionally reverse the judgment because the record does not indicate the custodian of records was placed under oath before testifying in the in camera Pitchess hearing. (People v. White (2011) 191 Cal.App.4th 1333, 1335.) We further direct the trial court on remand to either make, seal, and keep photocopies of any documents reviewed, or adequately describe the contents of the documents to provide a record adequate to permit appellate review. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.)
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
I
FACTS
Defendant was charged with possession of rock cocaine (Health & Saf. Code, § 11350, subd. (a); count one) and two counts of forcefully preventing an executive officer from performing his duties (Pen. Code, § 69; counts two and three; all undesignated statutory references are to the Penal Code). The information alleged defendant had served three separate terms in state prison (§ 667.5, subd. (b)) and suffered two prior "strike" convictions. (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A).)
Sergeant Robert Duckett of the Riverside County Sheriff's Department was on duty as a motorcycle enforcement officer on November 21, 2005, around 12:00 noon, when he and Deputies Jason Edmondson and Scott Van Gorder, who were also on motorcycles, were stopped at a stop sign at the intersection of Moreno Way and Cottonwood. Duckett noticed an off-road motorcycle or minibike stopped about 100 yards away, facing north on Moreno Way. He saw exhaust coming from the tailpipe and noticed the defendant straddling the minibike. Defendant was not wearing a helmet. Duckett made a U-turn and pulled his department issued motorcycle in behind defendant. The minibike was in the roadway, six feet from the curb.
Duckett asked defendant if he had his driver's license on him and defendant said he did not have one. Duckett had defendant step to the curb. After obtaining defendant's consent to search, Duckett placed defendant's hands behind his back and searched defendant's pockets. Duckett found "a large lump of money" ($254) and a small black piece of plastic containing a small off-white colored rock of rock cocaine, weighing .36 grams. When Duckett turned to hand the substance to Deputy Edmondson, who was now at their location, defendant pulled away and ran south on Moreno Way. Duckett gave chase and yelled, "Stop. You're under arrest. Stop."
Defendant ran to a fence by a house and attempted to climb over. Duckett grabbed defendant as he attempted to clear the fence and pulled defendant back down. The fence gave way, causing defendant and Duckett to fall to the grass. They rolled around and defendant got back up and continued running. During the continued chase Duckett saw Edmundson in pursuit. Van Gorder eventually took defendant to the ground.
The jury found defendant guilty of possessing cocaine base, but were unable to reach a verdict on the remaining counts, resulting in a mistrial on those counts. Defendant subsequently pled guilty to two misdemeanor counts of violating section 148 (obstructing or delaying officer in performance of duties) as lesser included offenses. The prior conviction and prior prison term enhancement allegations were tried to the court. The court found defendant had previously suffered prior convictions for robbery (§ 211) and attempted robbery (§§ 664, 211) for purposes of the Three Strikes law (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)), and that defendant had served three separate terms in state prison (§ 667.5, subd. (b)).
The court denied defense counsel's invitation to strike one of defendant's prior "strike" convictions and to sentence defendant as if he had only one "strike" conviction. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court sentenced defendant to 25 years to life on the felony and imposed consecutive one-year terms for each of defendant's three prior prison terms, for an aggregate sentence of 28 years to life.
II
DISCUSSION
Cruel and Unusual Punishment
Defendant contends his sentence of 28 years to life violates the Eighth Amendment and article I, section 17 of the California Constitution in that it constitutes cruel and/or unusual punishment. Because the issue is a question of law, we review the claim de novo. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1474.)
The Three Strikes law requires the imposition of a sentence of 25 years to life for a felony conviction when the defendant has suffered two or more prior convictions for felonies deemed serious or violent. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e).) The trial court, however, possesses the authority to strike a qualifying prior conviction to mitigate the harshness of the otherwise mandatory sentence. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504; § 1385.) In determining whether to exercise its discretion to strike a prior conviction allegation, the court considers "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court did just that here in a painstaking evaluation wherein the court reviewed and weighed the facts of the present offense and each of defendant's prior "strike" convictions. For example, the court found the instant offense would have resulted in a probationary sentence but for defendant's record, and that fact "at least marginally would militate toward the exercise of the court's Romero discretion." The court found defendant's robbery conviction was for a strong armed robbery, the facts of which were "much less serious" than a number of robberies the court had seen, although the court also noted robbery is not only a serious felony, it is a violent felony as well, and "is one of the more serious strikes that a defendant can have." The court found defendant's subsequent attempted robbery, however, was much more serious. It involved codefendants and was planned. The target was a rug store. To aid in the robbery, defendant and his crime partners obtained a diagram of the rug store and "instructions about how to get the rugs." They even rented a U-haul truck to transport the loot. The truck was parked behind the store while two of the conspirators went into the store. Defendant was "the wheel man." The attempt was aborted for an unknown reason, but a firearm was found in the truck.
These were defendant's only serious and/or violent felony convictions. The court found the prior convictions did not "strongly persuade me that I should not exercise my discretion, but [they did] not in any way persuade me that I should exercise my discretion." The court then looked to defendant's prospects and observed defendant had been out of custody for three years on the present matter while it wound its way to trial. The court also noted that three-year period was the only break in an otherwise "uninterrupted stream of criminality." The court stated that prior to being arrested on this matter, defendant was either on probation, in prison, or on parole since 1992. The court concluded that fact weighed against striking a prior conviction allegation. The court also noted defendant had been sentenced to prison twice after the enactment of the Three Strikes law and avoided being sentenced under the Three Strikes law each time. This caused the court to conclude there "is nothing" to suggest defendant falls outside the spirit of the Three Strikes law. The trial court then sentenced defendant under the Three Strikes law to 25 years to life on the underlying conviction and imposed consecutive one-year terms for each of the three separate terms defendant served in state prison, for a total commitment of 28 years to life.
The Eight Amendment prohibits cruel and unusual punishment and is made binding on the states through the due process clause of the Fourteenth Amendment. (Robinson v. State of California (1962) 370 U.S. 660, 666-667.) The cruel and unusual punishment clause contains a "'narrow proportionality principle' that 'applies to noncapital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20.) A constitutional violation under the gross proportionality principle of the Eight Amendment may be found in "only the extraordinary case." (Lockyer v. Andrade (2003) 538 U.S. 63, 77.)
Defendant's initial contention in connection with this analysis is that we must presume he will serve the remainder of his life in prison under the present commitment. We disagree. Although a defendant under a sentence of 28 years to life is not guaranteed he will be found suitable for parole, there is a difference between a sentence of life without parole (LWOP) and a life sentence for Eighth Amendment purposes. In Graham v. Florida (2010) _ U.S. _ , the United States Supreme Court recognized the distinction between the two and held that imposition of a sentence of LWOP on a juvenile who has been convicted of a nonhomicide offense constitutes cruel and unusual punishment. (Id. at _ .) In finding "[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime," but that the State must give juveniles "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" (ibid.), the court inherently rejected defendant's contention that we presume a defendant will serve the rest of his or her life in prison on a life sentence.
In Lockyer v. Andrade, the high court upheld a three strikes sentence of 50 years to life for a defendant convicted of stealing nine videotapes worth $153.54, finding the facts of that case did not present an extraordinary case under the gross disproportionality principle of the Eighth Amendment. (Lockyer v. Andrade, supra, 538 U.S. at pp. 66, 77.) And in Ewing v. California, the court upheld a sentence of 25 years to life for a defendant convicted of shoplifting three golf clubs worth a total of approximately $1,200 because the sentence did not present an extraordinary case. (Ewing v. California, supra, 538 U.S. at pp. 18, 29-30.) The court found Ewing's sentence was "justified by the State's public-safety interest in incapacitating and deterring recidivist felons . . . ." (Id. at pp. 29-30.) Granting that Ewing's sentence was a "long one," the court held it "reflect[ed] a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated." (Id. at p. 30.)
In Rummel v. Estelle (1980) 445 U.S. 263, Rummel was sentenced to life in prison as punishment on his third felony conviction. His prior felony convictions were for fraudulently using a credit card and passing a forged check. The credit card had been used to obtain $80 worth of goods or services and the forged check had been for $120.75. Rummel's life sentence was imposed on a felony conviction for theft of $120.75 by false pretenses. (Id. at pp. 265-266.) In rejecting Rummel's Eight Amendment challenge to his sentence, the high court held that "[h]aving twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." (Id. at p. 284.) The court concluded the recidivist statute under which Rummel was sentenced "is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the States's judgment as to whether to grant him parole." (Id. at p. 278, fn. omitted.) The court then went on to find that the life sentence imposed upon Rummel did "not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments." (Id. at p. 285.)
Defendant's case is not materially distinguishable from Rummel. Indeed, it could be said Rummel presented a more compelling Eighth Amendment challenge than defendant. Rummel had but three felony convictions, defendant has five. All of Rummel's convictions involved the theft of relatively small amounts of money and did not involve any violence. Defendant's first felony conviction was for robbery. His next was for burglary and attempted robbery. A firearm was involved in that incident. After suffering those "strike" convictions and before committing the present offense, defendant suffered a felony conviction for drug possession and another felony conviction for attempted burglary.
In applying the narrow proportionality principle to defendant's sentence, we consider "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (Solem v. Helm (1983) 463 U.S. 277, 292.) Although possession of a small amount of cocaine is neither a violent or serious felony (§§ 667.5, subd. (c) [list of violent felonies]; 1192.7, subd. (c); [list of serious felonies]), in determining the gravity of the offense and the harshness of the penalty, we look beyond the status of the offense for which the defendant has been sentenced. "In weighing the gravity of [a defendant's] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism." (Ewing v. California, supra, 538 U.S. at p. 29.)
Defendant's sentence does not violate the Eight Amendment under the first factor. He was sentenced for an offense that is straight felony. (Health & Saf. Code, § 11350, subd. (a); § 18 [punishment not otherwise provided by offense declared to be a felony].) In other words, it is not an offense that could have been charged as either felony or a misdemeanor. (§ 17, subd. (b).) In Ewing, the United States Supreme Court upheld a sentence of 25 years to life under the three strikes law for a grand theft conviction, an offense punishable as a felony or a misdemeanor. (Ewing v. California, supra, 538 U.S. at pp. 28-29.) Defendant's sentence "is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his long, serious criminal record." (Id. at pp. 29-30, fn. omitted.)
Defendant contends the Three Strikes law is uniquely severe compared with other recidivist statutes in California. While some of the statutes cited by defendant apply when an accused has suffered a prior conviction for an offense that may qualify as a serious or violent felony (see §§ 451.1, subd. (a)(1) [arson with prior arson conviction], 667.51, subd. (a) [child molestation with prior sex offense conviction], 667.6, subd. (a) [sex offense with prior sex offense conviction]), the enhancements provided by those sections are not to the exclusion of the penalty provided by the Three Strikes law. In other words, a defendant may receive an enhancement for a prior conviction under another recidivist statute in addition to being sentenced under the Three Strikes law. (See People v. Williams (2004) 34 Cal.4th 397, 403-404 [five-year enhancement for prior serious felony conviction added to term imposed under Three Strikes law].) That being the case, it cannot be said the three strikes sentence imposed in this matter must perforce violate the federal constitution.
As defendant acknowledges, "recidivist statutes have gained popularity nationally over the law several years." While there may be some that are not considered to be as strict as California's Three Strikes law, others are more onerous. (See e.g., Ind. Ann. Code, § 35-50-2-8.5 [LWOP when defendant has two prior convictions for specified felonies]; Nev. Rev. Stats. § 207.010, subd. (b) [three prior felony convictions makes LWOP sentence possible].) Comparison of defendant's sentence with sentences provided in other states having recidivist laws does not demonstrate defendant's sentence presents an extraordinary case for Eighth Amendment proportionality review. Defendant's sentence does not constitute cruel and unusual punishment under the Eighth Amendment.
Neither does defendant's sentence violate the state Constitution. Article I, section 17 of the California Constitution prohibits cruel or unusual punishment. Punishment violates this constitutional provision if it so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) "[A] defendant's history of recidivism, which is part of the nature of the offense and the offender, justifies harsh punishment. [Citations.]" (People v. Meeks (2004) 123 Cal.App.4th 695, 709.)
"In In re Lynch, supra, 8 Cal. 3d 410, the California Supreme Court formulated a three-point analysis for the determination whether a sentence is cruel and unusual: (1) the nature of the offense and the offender, with particular regard to the degree of danger which both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses; and (3) a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions. [Citation.] It is not cruel and unusual punishment to enhance the penalty for a crime because the defendant is a recidivist [citation] as long as the ultimate punishment, all facts considered, is not disproportionate to the crime. [Citations.]" (People v. Mantanez (2002) 98 Cal.App.4th 354, 359.)
Defendant suffered two prior convictions for serious and/or violent felonies and although those convictions occurred more than 10 years prior to the instance offense, he continued to commit felonies and did not remain free from felony conduct long enough to ever be free of the criminal justice system before committing his latest felony. Additionally, three separate terms in state prison have not deterred defendant from committing felonies. After enactment of the Three Strikes law, defendant was convicted on two separate occasions for committing a felony and on each occasion he avoided a sentence under the Three Strikes law. He was on still parole for the last of those convictions — attempted burglary — at the time he committed the instant offense. In light of defendant's criminal history, the facts of this case, and the punishments prescribed for other felony offenses, we cannot say the term of imprisonment 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 at p. 424, fn. omitted.)
Having addressed the merits of defendant's constitutional challenge to sentence, his ineffective assistance of counsel claim is moot.
Pitchess Motion
In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court "'recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in [a] law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge. "In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as 'Pitchess motions' . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045." [Citation.] By providing that the trial court should conduct an in camera review, the Legislature balanced the accused's need for disclosure of relevant information with the law enforcement officer's legitimate expectation of privacy in his or her personnel records.' [Citation.]" (Garcia v. Superior Court (2007) 42 Cal.4th 63, 69-70, fn. omitted.) We review a trial court's decision denying Pitchess discovery for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
Prior to trial, defendant brought a motion to discover evidence of fabrication of charges, dishonesty, excessive use of force, or racial bias in the personnel files of Riverside County Sheriff Deputies Duckett, Edmondon, and Van Gorder. He alleged Duckett submitted a deliberately inaccurate police report and that all three deputies engaged in the excessive use of force. Defendant's Pitchess motion requested information from the officers' personnel files that "relate or refer to any instance of relevant conduct, including" excessive use of force.
The court conducted an in camera hearing with the custodian of records. The court held it found no records to which the defendant was entitled. Defendant requests that we conduct an independent review of the sealed record to determine whether there existed material to which he was entitled.
Defendant's Pitchess motion was originally denied without an in camera hearing. Defendant filed a petition for a writ of mandate seeking an order directing the superior court to conduct an in camera hearing on his motion. Division Two of the Court of Appeal, Fourth Appellate District granted a peremptory writ in his favor. (Mallett v. Superior Court (May 18, 2009, E047824 [nonpub. opn.].)
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"The completeness of the records [submitted to the court for Pitchess review] is established through questioning of the custodian of records who produced them. In order to protect the defendant's right to a fair trial, the custodian must be placed under oath. [Citations.]" (People v. White (2011) 191 Cal.App.4th 1333, 1335.) There is no evidence the custodian of records was placed under oath either prior to or during the in camera hearing. Neither the court's minute order for the date of the hearing, nor the sealed reporter's transcript indicate the custodian of records was ever placed under oath. The failure to place the custodian of records under oath requires a conditional reversal (ibid.) because without the custodian having been placed under oath, "there is effectively no record of the Pitchess hearing for us to review. (Id. at p. 1336.)
The circumstances of the prior in camera hearing require that we add one direction on remand. On remand, the court should photocopy the documents submitted by the custodian if they are not voluminous. The photocopies should then be placed in a confidential file. In the alternative, the court may state for the record the documents examined and their contents. Without a record of the contents of the documents reviewed, appellate review is not possible and remand is required. (See People v. Mooc, supra, 26 Cal.4th at p. 1229.)
III
DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the trial court to conduct an in camera Pitchess hearing in conformance with the directions described in this opinion. If the court finds discoverable records exist, the court shall provide defendant with the information to which he is entitled and permit him a reasonable period of time to investigate. The defendant shall than be permitted to attempt to demonstrate the earlier denial of discovery prejudiced him at trial. If the court finds there is no discoverable information, or if after supplying defendant with discoverable information and permitting a reasonable period to time to investigate that information the defendant cannot establish he was prejudiced by the earlier denial of discovery, the court shall reinstate the judgment as of that date.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.