Opinion
B159913.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER R. MARSHALL, Defendant and Appellant.
Alisa A. Shorago, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher R. Marshall appeals from the judgment entered after he pleaded guilty to failing to register as a sex offender and admitted he had suffered three prior violent or serious felony convictions. The trial court imposed a state prison term of 25 years to life under the "Three Strikes" law. Marshall contends the trial court abused its discretion by denying his motion to strike prior convictions under People v. Superior Court (Romero) (1966) 13 Cal.4th 497 (Romero), defense counsel provided ineffective assistance and his sentence is cruel and/or unusual punishment. We affirm.
Marshall was ordered to serve his indeterminate sentence in this case consecutive to his sentence of 13 years, 8 months, imposed in case number NA048426, a separate criminal case. Although discrete cases involving different offenses, Marshall was sentenced by the trial court in both case number NA048426 and the case at bar during the same proceeding. We affirmed the judgment, as modified, in case number NA048426 on September 16, 2003. (People v. Marshall (Sept. 16, 2003, B156449) [nonpub. opn.].)
Marshall also contends the trial court failed sufficiently to inquire into his dissatisfaction with his appointed counsel after he made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118). Because we resolved this issue in People v. Marshall, supra, B156449, we do not address it again here.
FACTUAL AND PROCEDURAL BACKGROUND
In 1989 Marshall was convicted of assault with a deadly weapon or by means of force likely to produce great bodily injury, assault with intent to commit rape and kidnapping (Pen. Code, §§ 245, subd. (a)(1); 220; 207, subd. (a)). He was ordered to register as a sex offender (Pen. Code, § 290).
In November 1999 Marshall acknowledged in writing he was obligated to re-register as a convicted sex offender with the jurisdiction in which he resides within five working days of his birthday or change of address in accordance with then Penal Code section 290, subdivision (a)(1)(C). In February 2001 police learned Marshall lived in the same city, but no longer resided at the address of his last registration in November 1999.
This provision is now part of Penal Code section 290, subdivision (a)(1)(D).
In an "open plea" to the court Marshall pleaded guilty to failing to register as a sex offender based on a felony conviction (Pen. Code, § 290, subd. (g)(2)) and admitted having suffered three prior serious or violent felony convictions under the Three Strikes law. The trial court sentenced him to state prison for 25 years to life. Marshall timely filed a notice of appeal and obtained a certificate of probable cause.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion By Declining to Strike Marshalls Prior Convictions
A trial court may exercise its discretion to strike a prior conviction in furtherance of justice. (Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530; People v. Williams (1998) 17 Cal.4th 148, 151-152.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . or in reviewing such a ruling, the court . . . 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 [Three Strikes] schemes 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." (Williams, at p. 161.) We review the trial courts ruling for an abuse of discretion. (Romero, at p. 530.)
Marshall argues the trial court improperly considered only his criminal history and failed to assess all relevant factors in denying his motion to strike prior convictions. The trial court did not abuse its discretion in this case.
The abuse of discretion standard requires Marshall to "`clearly show that the [trial courts] decision was irrational or arbitrary." (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to demonstrate that reasonable people might disagree about whether to strike a prior conviction. (Id . at p. 978.) Nor is it sufficient to show that the trial court did not specifically address all relevant factors when discussing a defendants request to strike a prior conviction because "[t]he court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Here, the record reveals the trial court was aware it had the power to strike one or more of the prior felony convictions and had read the probation officers report and Marshalls moving papers. The record does not affirmatively establish the court failed to evaluate any relevant factor or that it relied on impermissible factors. Furthermore, the evidence plainly supports denial of Marshalls motion to strike. As the trial court recognized, Marshall has a substantial, although relatively short, criminal history. He was convicted of theft in May 1988 and was granted three years of probation. In May 1989 he was found guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury, assault with intent to commit rape and kidnapping and was sentenced to 10 years in state prison. Marshall violated parole twice, once as a result of committing battery. In 2000 he was convicted of driving with a blood alcohol level in excess of .08 percent and was on summary probation at the time he committed the instant offense. The probation report cites his unsatisfactory performance on parole as an aggravating factor and identifies no mitigating factors. The trial court acted well within its discretion by finding Marshall could not be "deemed outside the [Three Strikes] schemes spirit, in whole or in part" (People v. Williams, supra, 17 Cal.4th at p. 161) and denying his motion to strike.
2. The Record Does Not Establish Ineffective Assistance of Counsel
Marshall argues his counsel was constitutionally ineffective for failing "[to] object, ask for any lower sentence, or present any mitigating evidence" at sentencing. We do not know why defense counsel did not make additional arguments to mitigate Marshalls sentence following his plea to the court. "`Additional facts, irrelevant to the issues at the trial and possibly prejudicial to appellant, may very well have justified . . . counsels decision . . . ." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) Because the record sheds no light on the reason for defense counsels conduct, a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding where all relevant facts can be developed. (Ibid.)
We reject Marshalls claim he should be relieved of the obligation to show prejudice under United States v. Cronic (1984) 466 U.S. 648 [104 S.Ct. 2039, 80 L.Ed.2d 657]. The record does not establish that by not arguing for a mitigated sentence, defense counsel "entirely fail[ed] to subject the prosecutions case to meaningful adversarial testing." (Id. at p. 659.)
3. Marshalls Sentence is Not Cruel and/or Unusual Punishment
Marshall contends his sentence of 25 years to life under the Three Strikes law constitutes cruel and unusual punishment in violation of the United States Constitution and cruel or unusual punishment in violation of the California Constitution. The federal and state courts have consistently rejected claims that life terms imposed on recidivists under these circumstances violate the constitutional ban on cruel and unusual punishment contained in the Eighth and Fourteenth Amendments. (Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 1189-1190, 55 L.Ed.2d 108] ["In weighing the gravity of [defendants] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislatures choice of sanctions"]; Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166, 155 L.Ed.2d. 144; Harmelin v. Michigan (1991) 501 U.S. 957, 965 [111 S.Ct. 2680, 115 L.Ed.2d 836]; Rummel v. Estelle (1980) 445 U.S. 263, 284 [100 S.Ct. 1133, 63 L.Ed.2d 382]; People v. Cooper (1996) 43 Cal.App.4th 815, 820; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.) Nothing in Marshalls significant criminal history or in the nature of his current offense warrants a different result.
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, J., and ZELON, J.