Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF004388, Russell F. Schooling, Judge. (Retired judge of the former L.A. Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Richard Jay Moller, 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, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of possession of heroin (count 1—Health & Saf. Code, § 11350, subd. (a)), transportation of heroin (count 2—Health & Saf. Code, § 11352, subd. (a)), giving a false name to a police officer (count 3—Pen. Code, § 148.9, subd. (a)), driving under the influence of drugs (count 4—Veh. Code, § 23152, subd. (a)), being under the influence of a controlled substance (count 5—Health & Saf. Code, § 11550, subd. (a)), and driving without a valid driver’s license (count 6—Veh. Code, § 12500, subd. (a)). After a bench trial on several prior conviction allegations, the court found that defendant had suffered two prior strike convictions and one prior prison term. (Pen. Code, §§ 667.5, subd. (b), 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court denied defendant’s Romero motion to strike one of the prior strike convictions and sentenced defendant to 25 years to life. On appeal, defendant contends the court abused its discretion in refusing to strike one of defendant’s prior strike convictions and that defendant’s sentence is violative of the federal and state constitutional proscriptions against cruel and unusual punishment. We find the trial court acted well within its discretion in denying defendant’s motion and that defendant’s sentence is not constitutionally forbidden. We, therefore, affirm the judgment below.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
While the minute order for the sentencing hearing shows that the court imposed a one-year jail term on count 6, the reporter’s transcript fails to show that the court imposed sentence on count 6 at all. Likewise, while the court imposed a one-year jail sentence on counts 3, 4, and 5 to run concurrent to that imposed for count 2, the minute order for the sentencing hearing fails to indicate that the jail term is to run concurrent. Furthermore, the court never imposed or struck sentence on the Penal Code section 667.5, subdivision (b) prior prison term enhancement. Finally, the abstract of judgment fails to indicate the court’s true findings on both the Penal Code section 667.5, subdivision (b) enhancement and the Penal Code section 667, subdivisions (c) and (e) prior strike convictions. We will, therefore, remand the matter for sentencing on count 6 and on the prior prison term enhancement. On remand, the trial court is directed to correct the sentencing minute order and abstract of judgment to accurately reflect the sentence.
I. FACTS
At approximately 2:00 a.m. on October 14, 2005, California Highway Patrol Officer Scott Beauchene observed defendant’s vehicle weaving back and forth between two lanes and the shoulder of the freeway while defendant traveled 15 miles per hour below the speed limit. Defendant then exited the freeway from the No. 3 lane, crossing over the slow, or No. 4, lane. Beauchene pulled the vehicle over. Upon making contact with defendant, Beauchene noted that defendant appeared lethargic, spoke slowly, appeared confused, and had red eyes. Defendant’s girlfriend and her 14-year-old child were passengers in the vehicle. Defendant informed Beauchene he did not have a valid driver’s license. Defendant told Beauchene his name was Gabriel Mendez. Defendant told Beauchene he had consumed one alcoholic beverage.
Beauchene had defendant exit the vehicle. While doing so, defendant stumbled and nearly fell to the ground. At some point, defendant admitted to having used methamphetamine and heroin. Beauchene administered several field sobriety tests, of which defendant performed poorly on those relating to agility. Beauchene placed defendant under arrest and read him his Miranda rights. Defendant indicated he was willing to talk and admitted his real name. Defendant admitted possessing heroin. A small plastic bindle of heroin was found later on the floorboard of Beauchene’s patrol car where defendant had been seated.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Blood was drawn from defendant when he was first admitted to the jail. The results of tests conducted on defendant’s blood showed that he had 255 nanograms per milliliter of methamphetamine and eight nanograms per milliliter of heroin in his system. A therapeutic dose of methamphetamine would be between 10 to 50 nanograms per milliliter. Anything twice the level of a therapeutic dose is considered an abuse level, i.e., anything between 100 and 500 nanograms per milliliter. Methamphetamine use can cause a degrading of concentration, attention, and perception. It can cause a person to become physically uncoordinated. Given a hypothetical identical to the facts of this case, Dale Somers, a licensed toxicologist, testified that it would be unsafe for an individual such as defendant to drive a vehicle.
Defendant testified in his own defense. Defendant admitted suffering prior felony convictions for false imprisonment in 2003, felony robbery in 1992, residential burglary in 1989, and petty theft with a prior in 1988. Defendant admitted having taken heroin and methamphetamine within 24 hours of being pulled over. Defendant admitted initially giving Beauchene a false name because he was a parolee at large with a warrant out for his arrest. Defendant admitted not having a valid driver’s license. Defendant admitted having problems with the field sobriety tests, but contended his poor performance was due to work-related injuries. Defendant maintained that his speech is naturally slow. Defendant indicated his vehicle was weaving and he later had an increased heart rate due to nervousness related to seeing and being pulled over by a police officer. Defendant testified that while he felt the effects of the methamphetamine, he was still in good enough physical condition to drive. In fact, defendant testified that he was better prepared to drive for having taken the methamphetamine.
The court later found true allegations that defendant had suffered prior strike convictions for first degree burglary on June 29, 1989, and second degree robbery on March 20, 1992. (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court also found true an allegation that defendant had been sentenced to prison for a conviction for false imprisonment on April 17, 2003, and had failed to remain free from custody for five years. (Pen. Code, § 667.5, subd. (b).)
II. DISCUSSION
A. Romero Motion
Defendant contends the court erred in denying his motion to strike one of his prior strike convictions. In particular, defendant maintains the court erroneously believed it had no discretion to strike one of his convictions. Moreover, defendant asserts he is simply not someone who is within the spirit of the three strikes scheme. Likewise, defendant avers his drug dependency and the failure of the state to offer appropriate treatment should be deemed a mitigating factor compelling the striking of one prior strike conviction. We disagree.
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) Under this standard, the defendant bears the burden of establishing an abuse of discretion. (Id. at p. 376.) In the absence of such a showing, the trial court is presumed to have acted correctly. (Id. at pp. 376-377.) The appellate court may not substitute its judgment for that of the trial court when determining whether the court’s decision to strike the prior was proper. (Id. at p. 377.) “‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider 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.’ [Citation.]” (Ibid.) “‘[W]here 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’ . . . .” (Id. at p. 378.)
First, defendant’s contention that the sentencing court was not properly aware of its discretion to strike one of his prior strike convictions is unavailing. On the contrary, the record shows the court was well aware of its discretion to strike prior convictions; however, the court recognized that such discretion is limited. After the close of evidence, but before closing argument, defense counsel requested the court give defendant an indicated sentence encompassing whether the court would look favorably upon a Romero motion. The court replied, rather lengthily, “I want you to know that I don’t have any hesitancy in striking priors, especially in cases like this which, in my opinion, do not really fit within the legislative intent of the three-strike sentencing scheme, in that my personal belief, for what it’s worth, is that it was probably intended to mean three strikes and another violent felony offense, then you get the three-strike treatment. It was not intended like the theft of a donut after two strikes or whatever. And I have stricken three strikes, as I say, and I don’t have any hesitancy to do so, but only if the—any one of the prior strikes is questionable; it’s one in which there was not violence or a threat of violence or anything of the sort or dangerous felony. [¶] And so when we have had prior strikes which are alleged but are borderline, if we can use that term, prior strikes, I don’t have any problem with us striking a prior. And if this false imprisonment were one of the prior strikes, which it’s not, I wouldn’t have any problem with striking a special prior, strike prior. But that’s not the case. They are all first-degree burglaries [sic]. And I agree that he shouldn’t be punished to too great a degree for that false imprisonment prior. And were there any way for the Court to, within the meaning and spirit of the three-strike legislation and legislative intent, strike the prior, I’d do so in a heartbeat, because this is not an offense in which I really feel comfortable about imposing a life imprisonment sentence by reason of the present offenses. [¶] But not to do so would mean I would have to strike one of the priors. And I’d have to find a reason for striking one of the priors. And I haven’t found any. And I searched my soul and—saying possession of a tad of heroin and transporting it and having used [methamphetamine] and driving under the influence, these are not—these are not life imprisonment type offenses. [¶] But to get there, you see where I’ve got to go. I’ve got to strike one of the priors. And I can’t find a prior . . . . I wouldn’t have any problem in granting a Romero if that [false imprisonment conviction] was the first, second, or third strike prior. But it’s not. And therein lies the problem.” The court denied defendant’s request to strike an, as yet, unfound prior strike conviction without prejudice to defendant renewing his motion later, with the court having the benefit of a probation report.
At the hearing on the Romero motion nearly one year later, the court essentially reiterated what it had indicated in response to defendant’s preliminary Romero motion: “But the Appellate Courts have made it abundantly clear that the trial court’s hands are pretty securely tied relative to the granting of the Romero motion, and it cannot be done without a recitation of a litany of the rationale and reasons for granting same. And I just don’t have it here. [¶] And personally I find it difficult for this kind of offense, which is not an offense which is a danger to society, which I believe personally that the three-strikes law was originally intended for, but here we have the—these two previous strikes, and we’re certainly in that category. [¶] And there is just no way in the world that this Court can be inventive enough to be able to compile the requisite list of reasons to justify the exercise of its discretion in striking the prior. It just goes under the heading Personal Opinion. [¶] But that having been said, the Court’s back to square one in which it’s pretty much devoid of any rationale that can be put on the record as to why it should exercise its discretion which would pass muster before the Appellate Courts. [¶] And I’ve looked thoroughly at your moving papers and—and even without the opposition by the People, I just cannot find therein enough that this Court can come up with a sufficient rationale, again, to pass muster before the Appellate Court. [¶] And even though I personally, and that’s a personal opinion, do not believe that the legislature intended to be a third offense, which was nonmonitored[?], I really think that’s what they had in mind but were too inept to include, but they didn’t, and I cannot legislate from the bench. [¶] So for that reason the Court feels that it’s duty bound and hands tied in denying the motion pursuant to Romero to strike any prior as requested by the defense, and the motion therefore is denied.” Thus, while the court indicated that it personally thought a sentence of 25 years to life was inappropriate for defendant, it accurately noted that it could not legally strike one of defendant’s strike convictions without sufficient good cause. This it did not find. Thus, without legally sufficient cause to strike one of defendant’s prior convictions, the court’s personal opinion was irrelevant. We think the court’s restatement of the law with respect to striking prior convictions was accurate. Moreover, we disagree with the characterization of defendant’s current crimes as minimal and not posing a danger to society.
Here, defendant’s current convictions derive from his use of heroin and methamphetamine prior to driving his girlfriend and her 14-year-old son on a trip from the Oxnard Airport to Desert Hot Springs, a fairly lengthy journey. As testified to by Somers, use of methamphetamine can have a substantial, debilitating effect upon an individual’s mental and physical ability to drive safely. Beauchene testified that defendant exhibited numerous symptoms of drug intoxication, including lethargy, confusion, and clumsiness. Defendant’s choice to drive while physically and mentally compromised endangered the lives of his girlfriend, her child, and nearly everyone on the road for the duration of his trip. We cannot dismiss lightly the serious nature of the risks posed by defendant’s conduct in this case. The prospects of someone who apparently believes that drug use improves one’s ability to drive whilst displaying exactly the opposite symptoms cannot be said to bode well. Neither can “the interests of society represented by the People” be reasonably considered here to favor leniency. (Romero, supra, 13 Cal.4th at p. 530, italics omitted.) Moreover, when viewed in conjunction with defendant’s background and prior convictions, defendant’s current crimes reveal that he is precisely the type of recidivist the three strikes law was meant to close the revolving door of justice on. (People v. Strong (2001) 87 Cal.App.4th 328, 331-332.)
Defendant was first convicted of first degree burglary as a juvenile in 1982. Defendant was released from custody on parole in that matter three times and returned to custody twice on parole violations. Defendant was not discharged from parole in that matter until October 1987. Defendant was then convicted of petty theft with a prior in November 1988, for which he received three years’ probation. While on probation in that matter, defendant was convicted of first degree burglary in June 1989. Defendant received a four-year prison sentence in that matter, but was released on parole twice and subsequently violated parole twice. While on his first parole release in that matter, defendant was convicted of felony robbery in March 1992. Defendant was sentenced to seven years’ incarceration, but was released on parole in October 1995. Defendant was discharged from custody and parole in that matter in October 1999. In April 2003, defendant was convicted of false imprisonment for which he received 16 months in state prison. Defendant was paroled in December 2003, but violated parole and was returned to custody in August 2004. Defendant was again paroled in October 2004. Defendant was on parole with a warrant out for his arrest for absconding from justice when he committed the instant offenses. Defendant’s parole officer stated that defendant “was never amenable to parole supervision and has a long history of absconding. The defendant was not ready to be re-integra[t]ed into the community and never completed any of his mandated counseling or classes. He never made the effort to perform successfully on parole.” The probation report further noted that “[t]he defendant has spent his entire adult life on and off probation, parole or incarcerated; however, he continues to live his life outside of the law.”
As defendant’s above enumerated criminal record reveals, he is a career criminal for whom the stick of various prison and jail sentences and the carrot of probation and parole have failed to dissuade from further criminality. Indeed, defendant was not only on parole when he committed the instant offenses, he had a warrant out for his arrest for his failure to comply with the conditions of that grant of parole. Over the 23 years preceding defendant’s commission of the instant offenses, defendant was only able to remain free from custody for an eight-year period, the first four years of which he was on parole. Moreover, we disagree with defendant’s characterization of his prior crimes as “little petty stuff.” Robbery and first degree burglary are not petty crimes. Moreover, the nature of defendant’s commission of those crimes is not the subject of admissible evidence in this case; thus, we cannot say for certain defendant posed no serious or violent threat to any of his victims in those crimes. Case law consistently recognizes that burglary involves a serious violation of the sacrosanct position which the home occupies in our society. (People v. Davis (1998) 18 Cal.4th 712, 720-722.) Here, defendant had two prior burglary convictions. Defendant is exactly the type of criminal the three strikes scheme was envisioned to protect society from.
Defendant’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop) is misplaced. Bishop predates People v. Williams (1998) 17 Cal.4th 148, and consequently did not apply the appropriate standard: whether the defendant should be deemed to fall outside the scheme’s spirit. Instead, the Bishop court indicated the nature of the present crime and the remoteness of the defendant’s prior violent offenses operated to mitigate his three strikes sentence. However, the three strikes law provides “[t]he length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence.” (Pen. Code, § 667, subd. (c)(3).) Thus, remoteness does not take a defendant outside the spirit of the very law that expressly rejects remoteness as a basis for avoiding the law.
Also, Bishop relied heavily on the state Supreme Court’s decision in People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, for the scope of the trial court’s right to exercise its discretion. But the Alvarez court addressed a different issue with a different scope of discretion: the trial court’s unqualified discretion to determine whether to reduce a wobbler to a misdemeanor for purposes of the three strikes law. And it contrasted that discretion with the qualified discretion at issue here under Penal Code section 1385, subdivision (a), which, it acknowledged, was an example of a statute that “contain[ed] express qualifications delineating, and thereby restricting, the particular exercise of discretion.” (People v. Superior Court (Alvarez), supra, at p. 977.)
Finally, to the extent defendant contends his drug use and the failure of the state to provide appropriate treatment should be deemed a mitigating circumstance compelling the striking of one of defendant’s prior strike convictions, we disagree. The record is completely devoid of any attempt defendant made to remedy his seven- to eight-year drug dependency until after he was arrested in the current matter. As the probation report noted, defendant “seemed genuine in his desire to obtain help and get sober, but the majority of addicts and prisoners do claim to have this desire when they are incarcerated. It seems that he knows what he needs to do to stay out of trouble, but continues to find his way back to drugs and incarceration.” Likewise, the court accurately commented on the nature and timing of defendant’s endeavors to get straight: “Well, I think it’s sad that he did not take advantage of some program in custody which would have worked certainly in his best interest at this time which would show a real intent to deal with his problem. He—he, if you excuse the [cliché], he found religion a little late in life. Now when push comes to shove, all of a sudden he really wants some help and—and my reaction to that is too little too late.”
In People v. Gaston (1999) 74 Cal.App.4th 310 , the defendant was “a 44-year-old homeless person who ‘has been unemployed for the past five years,’ has passed ‘most of the past eight years in state prison or on parole’ and ‘has spent most of his life on the street . . . .’ Although ‘drug use appears to be an underlying factor in [his] criminal behavior, and in fact may be the root cause thereof,’ the record is barren of any attempts by [him] to ‘root out’ such destructive drug dependency. . . . [¶] . . . [¶] [H]e has committed an unending series of felonies, as well as other crimes, has been repeatedly punished for these crimes, including the service of four prior prison terms, and has failed to learn anything from the experience.” (Id. at p. 322; see also People v. Williams, supra, 17 Cal.4th at pp. 155, 163.) Here, too, defendant has failed to “root out” his destructive dependency, has committed an unending series of crimes, has been repeatedly punished for those crimes, and has failed to learn anything from the experience. Consequently, he is clearly within the spirit of the three strikes law. While defendant alleges a number of other “mitigating” circumstances supporting the striking of a prior strike conviction, defendant failed below to substantiate these contentions with admissible evidence; thus, defendant failed to carry his burden. Therefore, the trial court did not abuse its discretion when it refused to dismiss one of defendant’s prior strike convictions.
B. Cruel and Unusual Punishment
Defendant contends his 25-year-to-life sentence is disproportionate to his current offense and personal history and, as such, constitutes cruel and unusual punishment under the state and federal Constitutions. (U.S. Const., 8th Amend; Cal. Const., art. I, § 17.) We disagree.
“‘“The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendant’s ‘personal responsibility and moral guilt.’ [Citations.] Article I, section 17 of the California Constitution separately and independently lays down the same prohibition.”’ [Citations.]” (People v. Lucero (2000) 23 Cal.4th 692, 739.) “If the penalty imposed is ‘grossly disproportionate to the defendant’s individual culpability’ [citation], so that the punishment ‘“‘shocks the conscience and offends fundamental notions of human dignity’”’ [citation], [we] must invalidate the sentence as unconstitutional.” (Id. at pp. 739-740.) “A defendant has a considerable burden to overcome when he challenges a penalty as cruel or unusual.” (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)
When reviewing a claim of disproportionality or cruel or unusual punishment under the state Constitution, we examine the nature of the offense and offender, compare the punishment with the penalty for more serious crimes in the same jurisdiction, and measure the punishment to the penalty for the same offense in different jurisdictions. (People v. Dennis (1998) 17 Cal.4th 468, 511; In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch).) Regarding the nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commission of the current offenses, including the defendant’s motive, the manner of commission of the crimes, the extent of the defendant’s involvement, the consequences of his acts, and his individual culpability, including factors such as the defendant’s age, prior criminality, personal characteristics, and state of mind. (People v. Lucero, supra, 23 Cal.4th at p. 739; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Defendant argues his current offense of transportation and possession of heroin, did not involve any harm to anyone. Moreover, he entirely ignores his criminal history. It is significant that defendant’s 25-year-to-life sentence was largely based on his recidivism. Defendant received the 25-year-to-life term for his transportation of heroin conviction under the three strikes law based on his prior strike convictions. (Pen. Code, § 667, subds. (b)-(i).) “[A] defendant’s history of recidivism, which is part of the nature of the offense and the offender, justifies harsh punishment.” (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) “Recidivism in the commission of multiple felonies poses a manifest danger to society justifying the imposition of longer sentences for subsequent offenses.” (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)
As noted above, defendant’s criminal history is extensive and continuing. While his prior criminality and the current offenses do not indicate he has a propensity for extreme violence, the circumstances of the current incident do not exactly resonate with a claim that his crimes have been victimless. Defendant placed his girlfriend, her child, and every other individual on the road in substantial danger due to his election to drive while under the influence of heroin and methamphetamine. Likewise, his recurrent criminality indicates he has failed to learn from his numerous past experiences with the law. Defendant knew he was facing a life sentence for his current offenses when he was apprehended. Yet, he still committed the offenses. Indeed, defendant was already absconding from justice on a warrant issued for his violation of parole when he committed the instant offenses. In view of his failure to learn from the repercussions of his past offenses, his 25-year-to-life sentence is not disproportionate to his personal responsibility. Nor does the sentence shock the conscious or offend fundamental notions of human dignity. (People v. Lucero, supra, 23 Cal.4th at p. 740.)
The second prong of the Lynch analysis “involves a comparison of the ‘challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction.’ [Citation.]” (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.) The third prong of Lynch calls for comparison of the California punishment with punishment for the same crimes in other states. (People v. Romero, supra, at p. 1433.) Defendant has not met his burden of proof on either of these prongs. (Ibid. [second prong inapposite to three strikes sentencing; third prong not satisfied merely because California’s sentencing scheme is harsher than others].) Indeed, defendant’s sentence is not disproportionate to his culpability. (See Lockyer v. Andrade (2003) 538 U.S. 63, 73-74 [123 S.Ct. 1166, 155 L.Ed.2d 144] [two consecutive terms of 25 years to life for third strike conviction involving two thefts of videotapes not cruel and unusual punishment]; Ewing v. California (2003) 538 U.S. 11, 21 [123 S.Ct. 1179, 155 L.Ed.2d 108] [25-year-to-life sentence for theft of three golf clubs for habitual criminal not violative of the Eighth Amendment].) We disagree with defendant’s contention that his case is more sympathetic than the latter two cited cases.
III. DISPOSITION
The matter is remanded for sentencing on count 6 and on the prior prison term enhancement. On remand, the trial court is directed to correct the sentencing minute order and abstract of judgment to accurately reflect the actual sentence. The court is further directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., Hollenhorst, J.