Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA076295, Charles E. Horan, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L. Davis and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Gene McCallum appeals from a judgment of conviction entered after a court trial. The trial court found defendant guilty of the first degree residential burglary (Pen. Code, § 459), found true the allegations defendant suffered two prior serious felony convictions (id., §§ 667, subds. (a), (b)-(i), 1170.12). The court denied defendant’s motion to strike one or both of his prior convictions and sentenced defendant to state prison for 25 years to life under the three strikes law, plus an additional five years for a prior serious felony conviction.
On appeal, defendant claims he was denied due process of law by his conviction despite the trial court’s reasonable doubt as to his guilt, he was denied the effective assistance of counsel by his attorney’s stipulation as to the only contested element of the charged offense, and the imposition of a 25 years to life sentence constitutes cruel and unusual punishment. We affirm.
FACTS
Prosecution
On the morning of September 5, 2006, Brandie Irick (Irick) left room 204A of the Evergreen Inn in Covina to do laundry, locking the door behind her. When she returned about an hour later, she was unable to get into her room because the door was deadbolted from the inside. She got manager Nitin Solanki (Solanki) to get the deadbolt key so she could get into the room. They noticed that the window screen near the door was broken. Before Solanki could open the door, defendant unbolted the door from the inside and opened the door.
Solanki recognized defendant as a visitor to Gail Goss (Goss), who was staying in room 207, five doors down. Solanki confronted defendant, who said he had entered the room to use the bathroom. Defendant appeared to be under the influence of alcohol.
Irick went into the room and saw that her overnight bag had been disturbed; a bottle of hand cream had been removed from the bag and was on the sink. Additionally, a coin purse which had been left closed on the table was open and on the bed. The bed covers had been pulled back. Irick was unsure if anything had been taken.
Defendant tried to walk away, but Solanki and another tenant, Richard Martinez (Martinez), detained him. Defendant claimed that he needed to use the bathroom, but when Martinez took him to a nearby bathroom, defendant was unable to do anything.
Los Angeles County Deputy Sheriff Gregory Carr arrived at the scene and placed defendant under arrest. Defendant was able to follow Deputy Carr’s instructions, and the deputy did not smell alcohol on defendant’s breath, but it seemed that defendant was “kind of spacey, mentally ill.”
Detective Elizabeth Laub interviewed defendant that afternoon. Defendant admitted entering Irick’s room and knowing it was wrong to do so, but he again claimed he had entered the room to use the bathroom. He denied looking through Irick’s things or taking anything. He refused to say how he got into the room. It did not seem to Detective Laub that defendant was under the influence of alcohol or drugs, but defendant was slow to answer her questions and seemed to be in a daze.
Defense
Goss testified that defendant was a long time friend who was staying with her in room 207 for a few days. On the evening of September 4, 2006, he was drunk and in a dazed and confused condition. When Goss got ready to leave her room about 9:00 a.m. the following morning, defendant left first, and she was unable to find him.
Goss acknowledged that she had prior convictions for theft and burglary and was on probation at the time of the events in question.
After Goss returned and went into her room, there was a knock on her door. It was Solanki, accusing her of breaking into room 204. Goss denied it. She left her room and saw defendant and Martinez. She asked defendant what had happened. He seemed dazed and confused and unable to answer. She could smell the alcohol on him from five feet away.
DISCUSSION
Reasonable Doubt as to Defendant’s Guilt
Defendant contends he was denied the right to conviction on proof beyond a reasonable doubt and thus due process of law, because the record affirmatively shows that the trial court had a reasonable doubt as to his guilt when it convicted him. We disagree.
The trial court explained its reasons for finding defendant guilty. Defendant seizes on one paragraph of the explanation as proof that the trial court had a reasonable doubt as to his guilt. A fair reading of the court’s explanation, however, shows that the court did not, in fact, have a reasonable doubt as to defendant’s guilt. The court stated:
“I’m convinced there is evidence suggestive of intoxication. And I am convinced that there is evidence in the record suggestive perhaps of a mental illness or some combination thereof. But it is also the court’s finding that notwithstanding what I’ve heard, the defendant entered to steal. I say that due to the fact that immediately, apparently, upon entry he began rifling through items. That doesn’t sound like a guy who’s just in there to go to the bathroom.
“I also note that when the tenant knocked on the door, the defendant did not respond, as one would expect him to do. He didn’t do anything until the manager finally came up and got involved in the situation. Then and only then did the defendant make his presence known.
“I also note that . . . apparently he, meaning the defendant, locked the dead bolt lock when he climbed through the window. That does not seem at all consistent with a person who is simply there for a relatively innocent purpose.
“It may well be that he thought he was in [Goss’s] room, but that does not also negate the possibility he may have thought he was going in there to commit a burglary, to steal from his friend. He didn’t have permission to go into her room either. She got him up and got him out in the morning. So it may well be, I wasn’t out there, I can’t read minds, it may well be he thought he was in a different room number, but that also does not at all negate the possibility, or in this case the proof beyond a reasonable doubt that the defendant went into that room trying to steal. The fact that he may have believed it was his friend’s room he was going to enter does not at all take away from that finding. That would have also been a burglary, obviously, had he entered her room with the intent to steal. So the fact he may have gone into the wrong room to steal doesn’t make it any less a burglary.”
It is clear from the foregoing that the trial court found, beyond a reasonable doubt, that defendant entered a room that was not his own with the intent to steal from the room, i.e., that defendant committed a burglary. (Pen. Code, § 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042.) Any equivocal language concerned whose room defendant thought he was entering—Irick’s or Goss’s. The court made it clear, however, that no matter whose room defendant thought he was entering, when he “went into that room trying to steal,” he was guilty of burglary.
Defendant argues that if defendant thought he was entering Goss’s room, which the trial court stated “may well be” the case, there is no evidence that he entered with the specific intent to steal. Since he had been staying with Goss, there was no basis for assuming he would have entered her room with the same intent as if he knew he was entering Irick’s room.
The trial court noted, however, that defendant “locked the dead bolt lock when he climbed through the window. That does not seem at all consistent with a person who is simply there for a relatively innocent purpose.” That defendant entered a room that he thought was Goss’s, and then bolted the locked door, supports the finding that he entered the room with the intent to steal rather than just use the bathroom.
The foregoing evidence, along with the evidence defendant went through the things in the room and refused to open the door when the occupant returned, provides substantial evidence supporting the trial court’s finding that defendant entered the room with the intent to steal. (People v. Carter (2005) 36 Cal.4th 1114, 1157 [specific intent may be inferred from all the circumstances in the case]; People v. Park (2003) 112 Cal.App.4th 61, 68 [same].) We cannot disturb that finding. (People v. Matson (1974) 13 Cal.3d 35, 41.)
Ineffective Assistance of Counsel
Irick did not testify. Defense counsel and the prosecutor stipulated as to what her testimony would be. They did so to “do[] away with the necessity of flying this woman in here from out of town to testify to those rather noncontroversial facts.”
Defendant claims the facts to which Irick testified were, in fact, contoverted, in that, when interviewed by Detective Laub, he denied looking through Irick’s things. Additionally, Irick’s testimony that “her overnight bag had been searched through” (italics added) provided the evidence of intent. Defendant asserts that, had Irick been flown to Los Angeles and testified in person, his counsel could have objected to her use of the term “searched” as speculative. He could have required her to testify “that when she returned the bag was open and the contents were in disarray, a situation not present when she left.”
It is defendant’s contention that his counsel’s stipulation to Irick’s testimony that her overnight bag had been searched constituted ineffective assistance of counsel. We disagree.
A defendant is not deprived of the effective assistance of counsel unless his counsel’s challenged actions resulted in prejudice, i.e., unless it is reasonably probable that defendant would have received a more favorable result in the absence of the challenged actions. (In re Cudjo (1999) 20 Cal.4th 673, 687.) There was no such prejudice here.
It is clear that the trial court was not swayed by Irick’s use of the term “searched.” In explaining why it found defendant guilty, it discussed a number of factors, including that, upon entering Irick’s room, defendant “began rifling through items.” The trial court did not even use the term “searched.” It is not reasonably probable that the trial court would have acquitted defendant had Irick testified that her bag was open and the items inside were in disarray rather than that her bag was “searched.”
Cruel and Unusual Punishment
Defendant contends that “application of the three strikes law to a minor second degree burglary by a man who suffers alcoholism, drug addiction, and mental health problems is cruel and unusual punishment.” We disagree.
Before sentencing defendant, the trial court ordered a psychiatric evaluation pursuant to Penal Code section 1203.03. It explained to defendant, “you are looking at probably 35-years-to-life in state prison in this case. The only way you won’t do a life sentence is if the court feels that there is some reason to strike a strike.”
At the sentencing hearing, defense counsel argued that defendant was intoxicated at the time he committed the offense and clearly had a substance abuse problem. Additionally, the offense was nonviolent. For these reasons, a life sentence would not serve the interests of justice. Counsel requested that the court strike one or both of defendant’s prior convictions.
The trial court denied the request, explaining, “It would be, given what I’ve read and given what I’ve heard, it would be an absolute abuse of the court’s discretion. I say that with utter confidence.
“You’re quite right that your client has a substance abuse problem, no question about that. He’s also got a crime problem. He’s been convicted, I think, 17 times of various offenses, some quite serious and others not so serious, and his adult convictions begin in 1986, 21 years ago, and they run the [gamut] from thefts to drugs to batteries to drunk drivings to robberies and so forth. [¶] His record is further replete with violations of probation and violations of parole and return after return to state prison to finish terms where they’d let him out early.
“In this case you may characterize it as a nonviolent felony, it is. You omit to mention it is a serious felony under the law due to the residential nature of the burglary. [¶] . . . [¶]
“I sent him out, frankly, for the 1203 diagnostic to see if there was anything. These probation reports are not always as thorough as one would like. Often times they are a rap sheet and a recitation of the facts of the case. I took an extra step and sent him up for 90 days to see if the psychiatrists up there would have anything good to say. Normally they do. . . . They are interested in seeing if there’s some mitigating factors and if the individual might be able to function in a noncustodial setting.
“This is the worst 1203 report I’ve ever seen. They didn’t like him too much up there, apparently. Perhaps because he became involved in a race riot up in the state prison, that might have turned them off a little bit. [¶] I don’t know what the facts were, you know, certainly there are two sides to every story, but they thought enough of it to mention it in here that he was involved in some violent conduct while at the institution. The purpose of the visit was to see if he could be safely dealt with and he involved himself in yet another situation up there.
“They also indicate he’s got not much insight. That his mental illness, unfortunately for him, isn’t really—assuming he has some mental illness, it’s not really much of a mitigating factor because it is the result, according to the psychiatrists, of the use of drugs, the criminal use of drugs over the years. These are things he’s never addressed and never will address. He’s had every opportunity. He’s not a kid; he was born in 1964. And if he had wanted to deal with his drug problem, he’s had every opportunity to do so. He’s not going to. He’s going to continue to victimize.
“It would be an abuse in the extreme of this court’s discretion were I to strike a strike simply to do it, so I don’t intend to do it.”
California courts have consistently upheld three strikes sentences for nonviolent offenses such as defendant’s. (See, e.g., People v. Murphy (2001) 88 Cal.App.4th 392, 394; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338; People v. Goodwin (1997) 59 Cal.App.4th 1084, 1093-1094.) Courts have observed that recidivism in the form of the repeated commission of felonies poses a clear danger to society. It justifies the imposition of longer sentences for subsequent offenses. (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) “The purpose of a recidivist statute . . . [is] to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” (Rummel v. Estelle (1980) 445 U.S. 263, 284-285 [100 S.Ct. 1133, 63 L.Ed.2d 382].)
Statutes which impose more severe punishment on habitual criminals have repeatedly withstood constitutional challenges. (See People v. Weaver (1984) 161 Cal.App.3d 119, 125-126 and cases cited therein; accord, Parke v. Raley (1992) 506 U.S. 20, 27 [113 S.Ct. 517, 121 L.Ed.2d 391].) Indeed, it has been noted that the “Three Strikes” sentencing scheme “is consistent with the nationwide pattern of substantially increasing sentences for habitual offenders.” (People v. Ingram (1995) 40 Cal.App.4th 1397, 1416, disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8; accord, People v. Ruiz (1996) 44 Cal.App.4th 1653, 1665.)
In Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166, 155 L.Ed.2d 144], defendant was convicted on two counts of petty theft with a prior conviction. He had three prior burglary convictions. He received a three strikes sentence of 50 years to life. (Id. at p. 68.) The United States Supreme Court observed that under “‘clearly established Federal law, as determined by the Supreme Court of the United States,’” a sentence violates the Eighth Amendment proscription against cruel and unusual punishment if it is grossly disproportionate. (Id. at p. 71.) The court concluded that “[t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle . . ., it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade’s sentence of two consecutive terms of 25 years to life in prison.” (Id. at p. 77.)
Similarly, in Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 155 L.Ed.2d 108], the court upheld a three strikes sentence for a nonviolent offense, shoplifting three golf clubs worth $1,200. (At pp. 28, 31.) In conducting a proportionality analysis, the court weighed not only the gravity of defendant’s current offense “but also his long history of felony recidivism.” (Id. at p. 29.) It noted the purpose of the “Three Strikes” Law is not merely punishing the current offense but also “‘dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’” (Ibid., quoting from Rummel v. Estelle, supra, 445 U.S. at p. 276.) Based on defendant’s recidivist history, which included a robbery and three residential burglaries, the court concluded defendant’s sentence of 25 years to life was not grossly disproportionate and did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. (Ewing, supra, at pp. 30-31.)
Under Andrade and Ewing, defendant’s sentence in the present case does not rise to the level of cruel and unusual punishment. In light of defendant’s long history of recidivism, this simply is not the “extraordinary case” in which we can find a constitutional violation based upon gross disproportionality. (Lockyer v. Andrade, supra, 538 U.S. at p. 77.)
It is clear that “[d]efendant is precisely the type of offender from whom society seeks protection by the use of recidivist statutes. [As the trial court noted, t]here is no indication defendant desires to reform or to change his criminal behavior. The record reflects an individual who preys on innocent people in order to support [himself]. . . . [¶] . . . [¶] Fundamental notions of human dignity are not offended by the prospect of exiling from society those individuals who have proved themselves to be threats to the public safety and security. Defendant’s sentence is not shocking or inhumane in light of the nature of the offense and offender.” (People v. Ingram, supra, 40 Cal.App.4th at pp. 1415-1416.) Defendant’s sentence is not cruel and unusual due to its disproportionality to defendant’s current offense and past record. (Lockyer v. Andrade, supra, 538 U.S. at p. 71; Ewing v. California, supra, 538 U.S. at pp. 30-31.)
We decline the People’s request to treat defendant’s contention as waived by the failure to raise it below. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.