Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Super. Ct. No. 1203492, George C. Eskin, Judge
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Robert Calvin Massey appeals from the judgment following a guilty plea to possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) The trial court, in a bifurcated proceeding, found that appellant had suffered four prior strike convictions within the meaning of the Three Strikes Law (Pen. Code, § 667, subd. (e)(2)(A)), that the prior convictions were serious felony convictions (§ 667, subd. (a)(1)), and that appellant had served four prior prison terms (§ 667.5, subd. (b)).
Unless otherwise stated, all statutory references are to the Penal Code.
The court denied a motion to strike the prior convictions, sentencing appellant to 25 years to life in state prison as a Three Strikes offender. As an act of leniency, it imposed and stayed the four prior prison term enhancements (§ 667.5, subd. (b)). We affirm.
Facts
On July 7, 2005, the Santa Barbara police detained appellant in a park. Appellant was a sexual predator, had an electric monitoring device on his ankle, and was subject to strict parole conditions with search terms. The officers found marijuana on appellant's person and .08 grams of rock cocaine in his wallet.
Motion to Strike
Appellant argues that the trial court abused its discretion in denying his Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) to strike the prior felony convictions. We review under a deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)
It is settled that trial courts have limited discretion to strike prior convictions in Three Strikes cases. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531.) In exercising that discretion, 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 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 considered appellant's criminal history which spanned 28 years and included convictions for robbery, forcible rape, assault with intent to commit rape, and battery with serious bodily injury. It found that appellant's criminal record was "horrible," and when appellant "was not in prison he was engaged in other criminal activity that resulted in parole violations."
Appellant asserts that the prior convictions are remote in time but that is because the last conviction, a 1993 conviction for assault with intent to commit rape, resulted in a 13 year prison sentence. Appellant was released in 2006 and reoffended while on parole. His violent criminal history and failed attempts at parole and probation clearly support the Three Strikes sentence. (See e.g., People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.)
Appellant argues that the current offense was nonviolent and involved a small quantity of drugs. Appellant, however, has a 30 year history of substance abuse that predisposes him to commit violent offenses. The probation report indicates that appellant has never sought substance abuse treatment and was cavalier about drugs and parole. He told the probation officer that drugs "are the things I like to do" and "the only other problems I've had since I've been on parole are minor (parole) violations (dirty tests, being late back to the house, curfew)."
The trial court found that appellant "cannot function in society without violating the law. And it's clear from the record that whatever the violation happens to be, whether it's the use of drugs . . . or the other offenses in which he's engaged, he cannot comport with societal rules either outside of prison or inside of prison." After considering appellant's background, character, violent criminal history, performance on parole, and prospects, the trial court reasonably concluded that appellant was not outside the spirit of the Three Strikes law and a continuing threat to the community. (See e.g., People v. Williams, supra, 17 Cal.4th at p. 163.)
There was no abuse of discretion. Appellant "is the kind of revolving-door career criminal for whom the Three Strikes law was devised." (People v. Gaston (1999) 74 Cal.App.4th 310, 320; see also People v. Strong (2001) 87 Cal.App.4th 328, 338.)
Cruel and Unusual Punishment
Appellant's related argument that the sentence is excessive is without merit. "When faced with recidivist defendants such as [appellant], California appellant courts have consistently found the Three Strikes law is not cruel and unusual punishment. [Citations.]" (People v. Mantanez (2002) 98 Cal.App.4th 354, 359.) see also Ewing v. California (2003) 538 U.S. 11, 29-30 [155 L.Ed.2d 108, 122-123] [rejecting similar cruel and unusual punishment claim; 25 years to life for theft of golf clubs].) Given appellant's age (47), his extensive criminal history, the violent nature of his past offenses, appellant's unwillingness to seek substance abuse treatment, and his poor performance on probation and parole, it would be an abuse of discretion not to impose a third strike sentence. (See e.g., People v. Williams, supra, 17 Cal.4th at p. 163; People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Appellant claims that the sentence is grossly disproportionate to the severity crime and violates the Eighth Amendment. (See Rummel v. Estelle (1980) 445 U.S. 263, 271 [63 L.Ed.2d 382, 389].) We reject the argument because appellant is not merely being punished for the current offense, but also for his recidivism. (People v. Mantanez, supra, 98 Cal.App.4th at p. 366.) The sentence conforms to sentences for repeat offenders under the Three Strikes Law and is proportionate to sentences for repeat offenders in other states. (See e.g., People v. Romero (2002) 99 Cal.App.4th 1418, 1432-1433 [25 years to life for theft of magazine].)
The United States Supreme Court in Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108] and Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 544] held that indeterminate life sentences imposed under California's Three Strikes law do not violate the Eighth Amendment. "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare' [Citation.]" (Ewing v. California, supra, 538 U.S. at p. 21 [155 L.Ed.2d at p. 117]; see also Lockyer v. Andrade, supra, 538 U.S. at p. 73 [155 L.Ed.2d at p. 156] [gross disproportionality principle "applicable only in the 'exceedingly rare' and 'extreme case'].)
Even if we assumed that the Eight Amendment to the United States Constitution contains a proportionality guarantee outside the context of capital punishment, this is not one of those exceedingly rare cases in which the sentence is grossly disproportionate to the severity of the crime. (Ewing v. California, supra, 538 U.S. at p. 21 [155 L.Ed.2d at p. 117].)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.